bluuebunny/crossref_metadata_2025 huggingface dataset:
Anti-Dumping Regulation Contravenes the Obligation of National Treatment of the GATT and the NAFTA
Authors: Marceau Gabrielle
Published: November 2023

One of the basic pillars of the GAIT system is the principle of non discrimination introduced during the negotiations of the Havana Charter. The obligation of National Treatment, contained in Article III of the GAIT, and the principle of ‘Most-Favoured Nation’, contained in Article I of the GAIT, constitute respectively the domestic and transnational applications of this principle.’ It is argued in the present chapter that dichotomies between anti-dumping and competition laws infringe the obligation of national treatment of the GAIT, reiterated in Article 301 of NAFTA.
Political, Economic, and Legal Aspects of Free-Trade Areas
Authors: Marceau Gabrielle
Published: November 2023

This chapter focuses on the implications of free-trade areas in international economic law with a special emphasis on anti-dumping measures between member states. It is argued that the right to form discriminatory regional groupings was customary in international law. The GAIT law and the GAIT practice have not seriously changed this essential right of states to ally for security and trade purposes. Article XXIV of the GAIT contains guidelines (rather than conditions) for the realization of ‘trade-creative’ free-trade areas and invites member states to phase out all regulations restricting trade between them, including anti-dumping regulation. In this sense, free-trade areas tend to lean towards customs unions and common markets while reconciling the forces of region alism with the multilateralism advocated by the GAIT.
The Regulation of Restrictive Business Practices within the NAFTA
Authors: Marceau Gabrielle
Published: November 2023

The purpose of Chapter 7 is to compare the national anti-dumping laws of member states of the North American Free Trade Area (NAFTA) before suggesting how, legally, internal anti-dumping laws might be phased out between NAFTA member states. Indeed, the existing system of review of the Binational Tribunal and the new rules on competition contained in NAFTA seem to favour the eventual merging of internal anti-dumping and anti-trust laws. The extraterritorial application of a comprehensive system of competition laws appears to be the only pragmatic alternative to antidumping enforcement. Assuming that societies are willing to lose national sovereignty and other protections.
Implementation of the Chosen Mode/for Regulation of Restrictive Business Practices within the NAFTA
Authors: Marceau Gabrielle
Published: November 2023

Before relying on the extraterritorial application of competition laws, in both models suggested in the previous chapter, states will want to reassure their business communities that they will be treated at least fairly, equally, and according to known and reliable rules. Differences in domestic competition laws would maintain separate national markets, which in turn would facilitate dumping, and reduce the appeal for the phasing out of antidumping measures. It is therefore important to look at national competition laws that are in place to be able to assess the impact of their extraterritorial application.
Introduction & Background
Authors: Cohn Ilene , Goodwin-gill Guy S
Published: November 2023

IN A DECADE THAT HAS SEEN both the end of the Cold War and a record number of United Nations peace-keeping and peace-building missions, tens of thousands of children and youth continue to take part in hostilities in Asia, Europe, Latin America, Africa and the Middle East. The nineties are also distinguished by fresh conflicts, largely ethnic, with new states rapidly proliferating on the international scene, and the hope that inter-state relationships can be based on the rule of law, rather than the rule of power or politics.
Preventing the Recruitment or Participation of Children and Youth in Armed Conflict: Law, Programmes, and Policy
Authors: Cohn Ilene , Goodwin-gill Guy S
Published: November 2023

THERE IS NO SINGLE SOURCE for the international law of the child, which means it must be looked for in specific and general treaties, in the broad field of human rights at both universal and regional levels, in the rules of international humanitarian law, in customary international law and in the law and practice of States. In 1924, the League of Nations adopted the first declaration on the rights of the child, stressing the need for special care and protection. Though followed by a series of similar and related declarations,1 another sixty-five years were to pass before the international community acknowledged the very special status of children, and the desirability of States entering into a treaty on their behalf. The 1989 UN Convention on the Rights of the Child, already ratified by some 144 States, is rightly recognized as a critical milestone in the legal protection of children.
Developing the Protection of Child Soldiers: The Uses of Law and Process
Authors: Cohn Ilene , Goodwin-gill Guy S
Published: November 2023

THE PRECEDING CHAPTERS HAVE ILLUSTRATED both the extent of the problem of child soldiers, and the difficulties in the way of improving protection of children and bringing to an end the practices of child recruitment and participation. The law is not always as clear or as helpful as it might be, and there is an unfortunate tension between legislation, on the one hand, and the practices of governments and non-governmental entities (NGEs), on the other. All areas of the law need upgrading. A significant part of international human rights law is based on the protection of children and young persons up to the age of 18, and this general principle should be central to the interpretation of Additional Protocols I and II and the Convention on the Rights of the Child. So far as recruitment is concerned, however, universal and formal acceptance of 18 as the minimum age is a key objective, and ways to achieve this end are suggested below.
Australia
Authors: Epstein Judd
Published: November 2023

Australia has derived its rules for declining to exercise jurisdiction in civil and commercial matters from the United Kingdom,1 with very minor modifications. In 1988 the Australian High Court declared that Australian courts may exercise a general discretion to decline jurisdiction. The Court, however, rejected the reforms in the United Kingdom and found its own path. The Australian developments in forum non conveniens, while sui generis, fall within the mainstream of Commonwealth law. In other areas of declining to exercise jurisdiction, e.g. lis pendens, foreign jurisdiction clauses, and arbitration clauses, Australia's rules are heavily influenced by decisions in the United Kingdom.
Israel
Authors: Goldstein Stephen
Published: November 2023

Israel does not have separate courts for commercial matters. Nor does Israeli procedural law generally distinguish between civil and commercial matters. Thus in this chapter we will not so distinguish and will consider commercial matters merely as a type of civil matter.

The appropriateness and, indeed, necessity, for a court to have the authority to decline jurisdiction on a discretionary basis is, of course, related to the law of international jurisdiction, i.e., the authority of a State’s judicial system to assert jurisdiction over defendants, of the given State. The greater the international jurisdiction, and, in particular, the more that such international jurisdiction is not based on a significant connection between the transaction or event on which the action is based and the forum State, the greater the need for the courts to have discretionary authority to decline jurisdiction.
Italy
Authors: Trocker Nicolo
Published: November 2023

Expansive contemporary notions of jurisdiction, both to prescribe and to adjudicate, often make it possible for the courts of more than one country to hear a civil dispute. Concurrent jurisdiction causes concurrent litigation.

Differences in procedure and substantive law between available for a give private parties strong incentives to litigate in one country rather than another. ‘Forum-shopping’—it has been said—‘is a dirty word; but it is only a pejorative way of saying that, if you offer a plaintiff a choice of jurisdictions, he will naturally choose the one in which he thinks his case can be most favourably presented: this should be a matter neither for surprise nor for indignation’.

In some cases parties to a civil dispute will find it advantageous to start litigation in the courts of more than one nation, with each party seeking resolution of the dispute in what is perceived to be the forum most favourable to it. Strategies of this kind may assume a variety of forms. There are situations in which one party seeks declaratory relief in one forum and the opponent asks for affirmative relief with regard to the same legal relationship in another forum; and there are situations where the same parties, although in a different position, file the same suit in different fora.
Sweden
Authors: Bogdan Michael
Published: November 2023

This chapter deals, in a summary fashion, with some of the rather exceptional situations where Swedish courts are entitled, or even obliged, to decline to exercise the jurisdiction which they have under the normal Swedish jurisdictional rules. Not all such exceptional situations will be covered: among those omitted it is possible to mention those cases where the defendant enjoys jurisdictional immunity pursuant to the law of nations. Another self-imposed limitation on this chapter is that family law will not be dealt with here, since the nature and scope of the problem is very different in that field.

It must be pointed out that Sweden is a small jurisdiction with relatively few judicial decisions on this point. Together with the lack of comprehensive statutory regulation of the area under scrutiny, this leads to considerable uncertainty as to the state of the law. Many questions remain open and legal writers are often forced to resort to speculation and guesswork.
Why History is Important
Authors: Stone Julie , Matthews Joan
Published: November 2023

A brief account of the historical development of the regulation of both mainstream and non-orthodox medicine provides one of the most instructive starting-points from which to analyse the factors which shape regulation. Among the complex, interrelated components which help to determine regulation, historical factors can be particularly significant: the original regulatory system imposed when controls were first established will tend to continue to exert an influence on future patterns of regulation in the same field. The historical approach encourages us to adjust our perspective and to appreciate that modern medicine has only dominated medical practice for the past one hundred years. It also serves to remind us that medical theory is transient, a fact rarely given sufficient weight in the heat of debate.
Regulating Complementary Medicine—Why Now?
Authors: Stone Julie , Matthews Joan
Published: November 2023

In this chapter, we shall begin to examine why it is that after years of what could be variously interpreted as either benign tolerance or legislative neglect, regulation for complementary medicine has now become such a topical issue. Today, Britain is at the forefront of European States willing to enact legislation granting official status to certain complementary therapies; in fact, Britain is the only country within the European Union which will soon have three functioning statutory complementary medicine bodies—the General Council of Osteopaths, the General Council of Chiropractors, and the Faculty of Homoeopathy.
Political Factors Impacting on Regulation
Authors: Stone Julie , Matthews Joan
Published: November 2023

The outcome of the debate on regulation will be a political compromise in which the Government will have to balance the competing interests of a number of different groups. As Breyer has remarked: ‘There is no scientific discipline of regulation’. Regulators are often recruited from political backgrounds and rarely have specialized regulation expertise. Regulatory mechanisms are therefore infrequently subject to radical innovation or redesign and consequently historical practice along with political and administrative factors will strongly influence regulatory decision-making.
An Overview of Existing Controls
Authors: Stone Julie , Matthews Joan
Published: November 2023

In Part I we have attempted to contextualize the regulation debate and to discuss various considerations which we believe will determine regulation. As we have seen, although consumer protection is usually presented as the primary motivation, other interests are at stake, and therapeutic efficacy, whilst important, is not the sole determining factor. We have looked at some of the problems which have already emerged because of the lack of formal regulation, and considered some of the problems which may occur in the future.
Regulation: Aims and Sources
Authors: Stone Julie , Matthews Joan
Published: November 2023

In Part I we looked at who wants regulation and why. There, we saw that a variety of reasons account for why practitioners are now seeking formal regulation more vigorously. Whilst all cite protection of the public as their primary motivation, we have seen that many therapies view formal regulation as the only way to protect themselves from medical colonization or even annihilation. At this stage, however, we are less concerned with political and other aspirations of regulation, and more concerned with teasing out how patients’ interests are best served in practice. Much lip-service is paid to protecting the needs of the public, although there is little focused debate as to how this is best achieved in the sphere of complementary medicine.
Legal Controls
Authors: Stone Julie , Matthews Joan
Published: November 2023

As we have seen, the general understanding is that complementary medicine is virtually unregulated, the implicit assumption being that this is a dangerous state of affairs. Certainly, with the exception of the Osteopaths Act 1993 and the Chiropractors Act 1994, there is no specific statutory control similar to that regulating other areas of health care, but this does not mean that practitioners operate in a legal or ethical vacuum. We must not overlook the fact that many therapies have a high level of voluntary self-regulation, and have extremely active professional associations with ethical codes and disciplinary mechanisms which have been in place for very many years (although this is not to say that all therapists belong to a professional organization, or that all professional organizations have the necessary infrastructures or power to control members effectively).
Redefining the Role of Ethics
Authors: Stone Julie , Matthews Joan
Published: November 2023

We have now explored the major regulatory options. Each has considerable shortcomings in relation to complementary medicine. Although we have looked at how existing mechanisms are applied, or would be applied to alternative therapies, there is an incongruity between the intuitive, fluid nature of many of the therapies themselves and the rigid formalism of legal or legalistic constraints, which rely on quantification, certainly, and proof. All the regulatory options we have looked at are reactive not proactive, tend to concentrate on the negative rather than the positive, and focus on punishment rather than encouragement. We must not fall into the trap of assuming that because, historically, health professionals have relied on these existing models, they are a realistic paradigm for the regulation of complementary medicine. Although statutory self-regulation has characterized health professions in the past, we have seen why this approach is unsuitable for the bulk of complementary therapies.
Ethical Practice and the Individual Practitioner
Authors: Stone Julie , Matthews Joan
Published: November 2023

The growth of formalized ethics in health care is, in part, a response to the consumer movement, and an emerging commitment to patients’ rights. In the past, it was tacitly assumed that a professional training, in tandem with the possession of an upright character, was enough to ensure that professionals would act in an ethical fashion. The principle of beneficence, seen as caring for the sick, was assumed to be the overriding feature of the professional relationship, and characterizes the Hippocratic tradition. Whilst securing a patient’s compliance was obviously desirable, it was not seen as a legal or ethical prerequisite, and the means to secure compliance ranged from coercive language and bullying, to the use of the therapeutic lie, were that deemed necessary to protect the patient.
Labour Markets, Employment Contracts, and Corporate Change
Authors: Stone Katherine Van Wezel
Published: November 2023

The decade of the 1980s witnessed a revolution in the practices and theory of the business corporation. The dramatic wave of take-overs, buyouts, mergers, and bust-ups rippled through our institutional and conceptual world, and left behind a new topography of economic and power relationships. At its most immediate level, the wave of corporate restructurings produced unprecedented wealth for corporate raiders, enormous commissions for investment bankers, and substantial gains for many stockholders. At the same time, it left devastation for employees and the communities in which they live.
Organizational Regulation and the Limits of Contract
Authors: Collins Hugh
Published: November 2023

This chapter provides a commentary and critique of the previous contribution by Katherine Stone. Before commenting directly on Stone’s chapter, I should like to stress the importance of the present exciting conjuncture of scholarly traditions. All the contributions in this work traverse boundaries between academic disciplines and between different fields of legal studies. This is a fitting culmination to an intellectual process which has been proceeding apace during the last twenty years or so. Many authors combine the insights of political economy with aspects of company law, the law of contract, and labour law, developing a new contextual subject, which we might call the law of the productive enterprise. This development has occurred as a result of a series of colonizations of the territories of formerly distinct fields of study.
The Prospects of Pension Fund Socialism
Authors: Simon William H
Published: November 2023

Classical political economy portrayed the function of the capitalist class as saving and investing. This is an undeniably important role, and it seemed implausible to the classicists that, in a capitalist society, the great masses of people with minimal assets and barely enough income for current needs could participate in it. The fact that the performance of this socially valuable role entailed a socially regrettable distribution of ownership and income was seen as either a necessary evil or cause for the rejection of the entire capitalist framework of private ownership and market allocation of capital.
Privatization, Control, and Accountability
Authors: Scott Colin
Published: November 2023

Since 1979 the British Government has initiated a substantial transfer from public to private ownership of nationalized industries. The shorthand term which has been adopted to describe the policy has been ‘privatization’. In this context the use of the term ‘privatization’ refers to the ownership of the assets once publicly owned by the state by various private shareholders and corporations. This process has occurred in a wide range of nationalized industries in the industrial and service sectors, including Rover, British Aerospace, and Rolls Royce, and in each of the main utility sectors-telecommunications, gas, electricity, and water (see generally Veljanovski 1987; Vickers and Yarrow 1988; Veljanovski 1990a). The privatization of ownership, however, need not imply the full transfer of control and accountability functions from the public to the private sector. Indeed, all private companies are subject to a variety of forms of state control, in the form of competition law, company law, consumer protection laws, contract and property laws, and so on. For the public utility sectors, which provide the focus for this chapter, transfer of assets to the private sector has created the risk of permitting private monopoly profits, and so new regulatory issues concerned with the promotion of competition and protection of both domestic and industrial users have been raised, which go beyond questions of the regulation of ordinary companies. For many of the former nationalized industries the process of privatization has involved a substantial degree of state planning and continuing involvement of the state in the activities of the industries, most explicitly through new forms of sectoral regulation of the public utilities, but additionally in a variety of less visible ways.
Risk, Trust, and the Market for Corporate Control
Authors: Mccahery JOSEPH
Published: November 2023

In the 1980s the American corporate economy experienced a massive increase in liquidity. This increase was linked to two sources: (1) an increase in internally generated funds within firms which were employed for the purposes of strategic acquisitions; and (2) the introduction of high-yield bonds which made possible the acquisitions of large corporations by relatively small firms or groups of investors (Jensen 1987). As a result of this massive increase in liquidity, there was a huge wave of hostile take-overs (Jarrell et al. 1988). The emergence of a ‘self-regulating’ market for corporate control redefined the traditional relationships among shareholders, managers, and non-equity stakeholders.
The American Law of Corporate Groups
Authors: Blumberg Phillip I
Published: November 2023

This chapter seeks to provide a summary review for European students of corporate groups of those significant developments in American judicial decisions and statutory law which I have termed ‘the emerging American law of corporate groups’. I have written extensively of these developments in the five volumes comprising my series on The Law of Corporate Groups (Blumberg 1983, 1985, 1987b, 1989, 1992) and in various legal periodicals (Blumberg 1990a, 1990b, 1986), to which readers interested in more detailed discussion of these matters are referred.

However they may differ in other respects, the legal systems of the Western world without exception share the same fundamental concepts of corporation law. Reflecting their common legacy of medieval notions of Roman law (Buckland 1965: 54; Williston 1888: 164), Western legal systems share the same view of the juridical personality of the corporation. This is the view that a corporation is a separate juridical person with its own rights and duties, separate from those of the persons who may from time to time be its shareholders. This is entity law.
Some Comments on the Law Relating to Corporate Groups
Authors: Prentice D D
Published: November 2023

The chapters by Phillip Blumberg and Tom Hadden respectively highlight what is a feature of modern economic life, and that is the pervasiveness of group structures. Hadden rightly points out the complexity of these and, what is more important, their variation. For example, in Germany and Japan the banks play a role in the affairs of companies that is not the case in the UK. Also, the keiretsu system in Japan (discussed by Hadden) produces the type of interlocking structure that breaks down the distinction between shareholder, supplier of goods and services, supplier of labour, and provider of finance (see Viner 1990: 27).
Introduction and Overview of the Company Law Harmonization Programme
Authors: Edwards Vanessa
Published: November 2023

In 1973, the first year of the United Kingdom’s membership of the European Community, Professor Schmitthoff wrote: ‘Company law will be the first branch of law which will emerge as a truly European law.’ A quarter of a century later, the prediction of a truly European company law (even if it is not necessarily the first branch) may be described as significantly realized: Community legislation now regulates companies’ disclosure and publicity requirements, the legality of preincorporation and ultra vires transactions, the nullity of companies, the formation of public companies and the maintenance and alteration of their capital, mergers and divisions of public companies, companies’ annual and consolidated accounts,8 the qualification of company auditors, disclosure by cross-frontier branches of companies,10 single-member companies, admission to Stock Exchange listing, public offers of listed and unlisted securities, acquisitions and disposals of major shareholdings, and insider dealing.
The First Directive
Authors: Edwards Vanessa
Published: November 2023

The first company law directive (the First Directive) seeks to hannonize publicity requirements applying to companies, the circumstances in which company transactions will be valid and the rules relating to the nullity of companies. Since it was the first directive to be issued under the legislative power conferred on the Council and the Commission by Article 54(3)(g) of the Treaty, the scope of which was already the subject of intense academic debate, it is perhaps unsurprising that much of the voluminous comment on the Directive focused more on its legal basis than on its content. Now that thirty years have elapsed since adoption of the Directive, it seems less relevant to debate the precise scope of Article 54(3)(g)—as Prentice points out, with refreshing common sense, it is ‘hard to imagine any matter of significance in the field of company law that could not be subsumed, with ease, within the rubric of the protection of shareholder or creditor interests’.
The Seventh Directive
Authors: Edwards Vanessa
Published: November 2023

The Fourth Directive on annual accounts and the Seventh Directive on consolidated accounts have much more in common than their subject-matter. In both cases, the original Proposal, drawing heavily on German concepts, proved unacceptable in a number of essential areas to representatives of the United Kingdom and the Republic of Ireland and, to a lesser extent, the Netherlands; the protracted negotiations necessary to resolve the seemingly irreconcilable positions adopted by on the one hand representatives of the continental Member States, in particular Germany, and on the other hand the Anglo-Dutch countries resulted in strikingly long legislative gestation periods (from first formal Proposal to final adoption, seven years in both cases: however, the real period is somewhat longer, since both Proposals had been preceded by informal drafts); and the final version differed significantly from the earliest Proposal, the differences representing to a substantial extent either acceptance and incorporation of the Anglo-Dutch arguments (for example, in relation to the true and fair view) or an unwieldy compromise between the two positions (for example, in relation to the definition of the relations between undertakings which will trigger the requirement to prepare consolidated accounts). The Directives taken together form a whole: the Seventh Directive complements the Fourth, extending the latter’s requirements as to format and content of accounts, valuation rules, publication and audit to the consolidated accounts which it requires to be prepared in certain defined circumstances. In the same way as the need for the Fourth Directive was foreseen in the First Directive, the Fourth Directive itself called for harmonization of legislation on consolidated accounts, stating in its preamble that ‘when a company belongs to a group, it is desirable that group accounts giving a true and fair view of the activities of the group as a whole be published’.
The Twelfth Directive
Authors: Edwards Vanessa
Published: November 2023

In 1988, when the Commission submitted its Proposal for a Twelfth Council Directive on company law concerning single-member private limited companies, Belgium, Denmark, France, Germany and the Netherlands all permitted the formation of single-member companies, Luxembourg had introduced draft legislation to that end and Portugal permitted single-person businesses to have limited liability. Denmark, Germany and the Netherlands permitted single-member companies to be formed by artificial as well as by natural persons, while Belgium required the member of such a company to be a natural person; France, and the proposed legislation in Luxembourg, permitted single-member companies to be formed by artificial persons but prohibited the creation of one single-member company by another. The other Member States made no provision for single-member companies, and either imposed personal liability on a sole shareholder or required a company with a sole shareholder to be wound up. The Proposal sought to overcome the divergences between the laws of the Member States in this area by providing a legal instrument allowing the limitation of liability of the individual entrepreneur throughout the Community.
Background to the Securities Directives
Authors: Edwards Vanessa
Published: November 2023

The Treaty contains no reference to securities markets: none the less the European Community has been described as ‘the most active and influential organization in the nascent field of international securities regulation’. That recent assessment reflects the fruits of the Commission—s progress in a number of directions spanning three decades.
The Second Stage—Harmonizing Public Offer Prospectuses
Authors: Edwards Vanessa
Published: November 2023

When the first Proposal for a directive coordinating the information to be disclosed when unlisted securities are offered to the public for the first time (whether or not they are subsequently listed) was submitted by the Council to the Commission in January 1981, the Admissions and Listing Particulars Directives had already been adopted and the amended Proposal for the Interim Reports Directive was pending before the Council. The Commission saw the Public Offers Prospectus Directive as ‘the final link in a natural chain’, complementing the disclosure requirements imposed by the other three Directives on and after admission of securities to listing. At that time, Germany, the Netherlands, Italy, Denmark and Greece had no legislation on prospectuses, and there would have been a fundamental flaw in the developing edifice of investor protection if disclosure on offers to the public had continued to be unregulated. Moreover, the contribution made to investor protection by the introduction of harmonized information requirements on admission to listing through implementation of the Listing Particulars Directive would have been seriously undermined if, on offers to the public of shares for which a listing was subsequently sought, inadequate disclosure was required on the initial offer.
Conclusion and Outlook
Authors: Edwards Vanessa
Published: November 2023

Much of this book has been devoted to tracing the development and adoption of the company law and securities directives proposed by the Commission in the last thirty years. After a steady stream of important legislation in the 1970s and 1980s, the harmonization programme seemed to stagnate for a decade. The preceding chapter has outlined some of the reasons for this decline in legislative activity and shown how the Commission’s more recent approach, coupled with a revival of political enthusiasm for particular areas of company law harmonization, has breathed fresh life into certain ailing and aged Proposals. This conclusion reviews the Commission’s current initiatives in relation to company law harmonization, from which the contours of the likely future action at Community level can be clearly discerned.
Courts and Interests
Authors: Rawlings Richard
Published: November 2023

The subject matter of this discussion is the role of courts as a forum for the pursuit of collective objectives. Within this broad rubric, particular attention will be paid to purposeful, strategic litigation in the sense of litigation designed to generate change in legal norms and/or in bureaucratic practice; or, less obviously, support for the status quo. The chapters by Peter Cane and Genevra Richardson in this collection develop this theme in rather more specific ways: this essay, in contrast, explores the issue in more general terms.
Standing, Representation, and the Environment
Authors: Cane Peter
Published: November 2023

I Have chosen environmental law as the prime (although not the exclusive) focus of this essay for several reasons. One is that both in this country and in the United States, a significant number of the most important judicial decisions about the law of standing have concerned environmental matters. Another reason, which partly explains the first, is that environmental harms often affect many people; and although they often affect a smaller group much more than they affect the generality, large sections of the population can often claim to be directly or indirectly injured by conduct which degrades the environment.
Jurisdiction, Judicial Control, and Agency Autonomy
Authors: Craig Paul
Published: November 2023

The scope of the courts’ powers to control jurisdictional error by tribunals, agencies, and the like has recently been the subject of two important decisions by the House of Lords in Page v. Hull University Visitor and in R v. Monopolies and Mergers Commission, exp. South Yorkshire Transport Ltd.2 These two decisions raise once again the important question as to the relative powers of courts and agencies concerning jurisdictional issues.
Changing Patterns in Sentencing Policy
Authors: Wasik Martin
Published: November 2023

The British have long had an ambivalent attitude towards the importation of American ideas on criminal justice. The hostile attitudes evinced by Lords Reid and Ackner which were remarked upon in the opening chapter are by no means an exclusively judicial phenomenon. From time to time, politicians find it similarly easy to deride a particular proposal for sentencing change, solely on the basis of its being ‘American’. Ian Loveland has explored in chapter eleven just such a governmental reaction in respect of crimes involving racist violence.
The Church
Authors: Brown Schuyler
Published: November 2023

Today, ‘Christianity’ and ‘the church’ are virtually synonymous terms. The latter is used not simply to designate a particular local community of Christian believers but also a fellowship which transcends congregational and even national boundaries. It therefore comes as a surprise · to the contemporary Christian to discover that the use of ‘the church’ to designate the Christian movement as a whole is a relatively late development within the
The Framework of Central Government Audit
Authors: White Fidelma , Hollingsworth Kathryn
Published: November 2023

The origins of public sector audit in Britain date to the fourteenth century. Until 1866, two separate offices existed-the Audit Office and the Exchequer Office. The Audit Office had its origins in the Auditors of the Imprest Office which was created in 1559 and abolished in 1785 when it was replaced by the Office for Auditing the Public Accounts. The Audit Office comprised a number of Commissioners. During the nineteenth century the size of this Office increased as it took over responsibility for other Commissioners, including the Commissioner for Auditing the Accounts of Ireland. From 1832 onwards, a system developed whereby the Commissioners reported to the House of Commons on the appropriation accounts (those departmental accounts which recorded the expenditure of voted monies) which they audited and compared with the estimates. The Office of Auditor of the Exchequer can be traced back to 1314. In 1834, the duties of this Office were abolished and a new department, called the Office of Comptroller General of the Exchequer, or more simply, the Exchequer Office, was created. The Head of this Office was the Comptroller General of the Exchequer. The Comptroller General had responsibility for authorizing the issue of public money requested by the government.
The Jurisdictions of the C&AG
Authors: White Fidelma , Hollingsworth Kathryn
Published: November 2023

As noted in Chapter 3, following the amalgamation of the Exchequer Office and the Audit Office in 1866, the C&AG’ s full title is the Comptroller General of the Receipt and Issue of Her Majesty’ s Exchequer and Auditor General of the Public Accounts. The focus of these next three chapters is central government audit: the latter aspect of this title. Indeed, the bulk of the work conducted by the NAO., involves the audit function. Nevertheless., the C&AG’ s Comptroller function is of constitutional significance, in its own right, and, in its relationship with the audit function.
Independence
Authors: White Fidelma , Hollingsworth Kathryn
Published: November 2023

The independence of an external auditor is vital to enable the auditor to perform his functions properly. In the private sector, the auditor’ s basic role is to certify annually, in a report to members, whether or not the accounts of an organization give a ‘ true and fair’ view of the state of that organization and whether the accounts comply with UK GAAP Generally Accepted Accounting Practice.1 If the accounts are to be relied upon, it is essential that they should be true and fair and this is more likely to be the case if someone independent of the organization has vetted and certified them. The importance of the auditors’ role, in the private sector, has been emphasized by developments over the last 150 years designed to ensure their professional competence and independence. In 1844, when for a brief time auditors were first made compulsory for registered companies, it was common practice for the auditor to be a shareholder in the company. In 1900, when auditors were again made obligatory for registered companies, it was provided, in an attempt to ensure the auditor’ s independence from management, that the auditor should not be an officer of the company.
The Audience(s) for Audit
Authors: White Fidelma , Hollingsworth Kathryn
Published: November 2023

Auditors report and make recommendations. Also, some auditors may have executive or quasi-judicial functions as, for example, in the case of local government where the legislation provides for a power to surcharge a person, or to issue a prohibition order to prevent unlawful spend ing.1 However, such powers are not inherent in the audit function but are additional to it. Usually, for the work of an auditor to have any real impact there must be an audience. The primary function of the audience is to use the audit information to hold the auditee to account. In addition, having an identifiable audience enables the auditor to tailor his findings to the needs of that body.
The European Court of Auditors
Authors: White Fidelma , Hollingsworth Kathryn
Published: November 2023

Large sums of money pass through the accounts of the European Com munities.1 Poor control, inadequate accountability, waste and fraud are favourite themes of those hostile to the European Union. But those who want further expansion of the Union’ s powers cannot afford to ignore such issues. Nor can those who are more agnostic about the extent and pace of further integration. Enlargement of the Union eastwards and southwards is being negotiated. This can hardly be a zero-cost exercise, although the scale of new spending is a matter for future conflict and bar gaining. Whether the Community is to spend more, or a lot more, European taxpayers and voters are unlikely to accept its legitimacy without a strong system of financial control and accountability.
Conclusions
Authors: White Fidelma , Hollingsworth Kathryn
Published: November 2023

The previous chapters have sought to describe and analyse the constitutional role of public sector audit in Britain. We have focused mainly on the audit arrangements for central government, but have also considered audit at the local and European levels of governance. In this final chapter, we first bring together various threads of our analysis to identify the fundamental principles—institutional and substantive—of public sector audit, then consider some new tasks that audit could fulfil at central government level and conclude with an examination of the challenges presented by devolution.
The Offence of Cruelty
Authors: Radford Mike , Broom Donald M
Published: November 2023

The basis of animal protection legislation in Great Britain is the Protection of Animals Acts, the most important of which is, in England and Wales, the Protection of Animals Act 1911 (‘the 1911 Act’) and, in Scotland, the Protection of Animals (Scotland) Act 1912 (‘the 1912 Act’). It is in these statutes that the legal meaning of cruelty is set out. The 1911 and 1912 Acts are, in all essentials, identical; the reason for there being two separate pieces of legislation is historical. That of 1911 was principally a consolidation Act, by which means the existing law is, for the sake of convenience, brought together and restated in a single statute. At the time, the extent of the protection provided by Scottish law differed from the rest of Britain in a number of important respects and, by definition, it is inappropriate to introduce significant legislative change by means of a consolidation Act. Accordingly, in order to secure uniformity, it was necessary to introduce separate legislation in respect of Scotland.
Enforcement
Authors: Radford Mike , Broom Donald M
Published: November 2023

AB Richard Martin discovered immediately after the passing of his Act in 1822, if legislation to protect animals is to be effective, it must be adequately enforced. This means more than merely bringing alleged offenders before the courts. Prosecution is an integral part of the process, but represents the option of last resort. The ambit of enforcement is far wider, and includes the need to ensure: the various regulatory schemes prescribed by the European Community, the national Parliament, and, where appropriate, the Scottish Parliament and the Welsh &sembly, are duly implemented; those to whom legislation applies are mindful of the nature and extent of their legal responsibilities;
The Limits on the Exercise of Autonomy
Authors: Nygh Peter
Published: November 2023

Assuming that the parties to an international contract have by almost general consensus the right to choose the applicable law, the question then arises as to the conditions which restrict the right of choice. It is quite obvious that even under the ‘internationalist’ view of autonomy, there must be at least two restrictions upon choice: (a) that the contract bear an international character, for otherwise municipal mandatory laws would cease to be binding even in purely domestic transactions at the option of the parties; and (b) that the choice must be free and voluntary, for otherwise we cannot speak of an agreement.
The ‘Contrat Sans Loi’
Authors: Nygh Peter
Published: November 2023

To identify a particular system of law as being that in accordance with which the parties to it intended a contract to be interpreted, identifies that system of law as the ‘proper law’ of the contract. The reason for this is plain; the purpose of entering into a contract being to create legal rights and obligations between the parties to it, interpretation of the contract involves determining what are the legal rights and obligations to which the words used give rise. This is not possible except by reference to the system of law by which the legal consequences that follow from the use of the words is to be ascertained.
Mandatory Rules
Authors: Nygh Peter
Published: November 2023

An important limitation on the autonomy of the parties is the principle that mandatory rules have priority over the choice made by the parties. Friedrich Karl von Savigny, who may be regarded as the ‘father’ of the classical multilateral system of conflict of laws, which is still the orthodoxy of most legal systems outside the USA, acknowledged that the principle of multilateralism ‘must be limited with respect to many kinds of laws, whose peculiar nature does not admit of so free an application of the community of law obtaining between different states’.1 He described those laws as ‘laws of a strictly positive, imperative nature’.
The Summation
Authors: Nygh Peter
Published: November 2023

At the end of the twentieth century, it is true to say that the autonomy of the parties is generally recognised. For pragmatists this may be seen as the necessary accompaniment of the globalisation of international trade and commerce. For idealists it is an expression of the human right of individuals to arrange their personal and economic lives as they see fit, subject only to such restraints as are necessary to maintain public order and prevent the exploitation of the weak. This freedom manifests itself in the expression of the choice of the law which is to apply to the contract and in the choice of the forum in which to resolve any disputes arising out of it, whether that forum be a national court or an arbitral tribunal.
Introduction
Authors: Sauter Dr Wolf
Published: November 2023

Worldwide, economic competition is in ascendance. In the European Commun ity, as elsewhere, this is accompanied by retreat of the state from direct interven tion in the economy. After decades of acting as participants in the economic process, the Member States are now divesting state holdings, and in many areas are proceeding to market regulation at arm’s length. National competition policies are increasing their independence from the political process, in tandem with strict enforcement by the Community of the state aid and competition rules of the EC Treaty against the Member States themselves.
The Emergence of the Industrial Policy of the European Union
Authors: Sauter Dr Wolf
Published: November 2023

Paradoxically, the globalisation of production and the growth of international commerce due to trade liberalisation have led to a renewed interest in industrial policy. First, seeking to explain the predominance of trade between advanced countries with a similar industrial structure, recent developments in economic theory have modified standard assumptions about the general benefits of free trade. The new trade theory suggests that states can effectively change compar ative advantage in their favour by adopting strategic behaviour. Second, a certain degree of consensus seems to have formed among economists that industrial policies aiming to remedy market failures may be both beneficial and success ful.
Conclusion
Authors: Sauter Dr Wolf
Published: November 2023

The findings can be summarised as follows. The EC Treaty as elaborated by the European Court of Justice forms the economic constitution of the European Community, which governs the relations between the various levels of gov ernment and the market. Under this economic constitution the Community has limited competences, and no particular economic order is prescribed for the Member States: the Treaty remains neutral regarding the economic order at the national level. National measures in the public interest, which take due legal form and respect the basic principles of Community law, may legitimise excep tions to the internal market. This leaves the Member States an autonomous sphere within the general constraints imposed by Community law.
The Competition Policy of the Community and the Competitiveness of European Industry
Authors: Sauter Wolf
Published: November 2023

While the Community has from the outset had extensive competences in competition policy, its powers in the broader area of economic policy were limited. This is now changing. A new phase of integration is bringing about shifts in the horizontal and vertical distribution of power in the Community. First, the powers of the Member States on economic policy making are increasingly pooled, as the result of the internal market programme, and the drive toward economic and monetary union. Second, a Community competence on industrial policy has been created. Third, changes in the constitutional framework and institutional set-up of competition policy are being considered Industrial and competition policy can be seen as being linked in two ways. First, the requirements of competition policy may impose limits on the industrial policies of the Member States.