bluuebunny/crossref_metadata_2025 huggingface dataset:
Collapse: 1986
Authors: Greer Steven
Published: November 2023

ON 19 March 1986 the Attorney-General issued his second substantial Commons statement on the supergrass trials in Northern Ireland.1 But by the end of the year the system itself had come to an end when the convictions secured in the McGrady, Black, Quigley, and Kirkpatrick cases, which were not supported by a confession or what was deemed to be an admission, were all quashed on appeal. The statement, which added little to the debate, was largely aimed at countering suggestions that there were differences between the law and practice on supergrass trials in Northern Ireland on the one hand, and in England and Wales on the other. The Attorney-General said that a judicial warning was issued by the judge either to a jury or to himself in both jurisdictions and neither DPP regarded himself bound by a rigid rule or practice regarding the need for corroborative evidence in the strict sense before authorizing prosecutions, although in the absence of either supportive or corroborative evidence it was unlikely that a prosecution would be brought. He also denied that supergrass trials were a ‘routine and frequent occurrence ‘ in Northern Ireland, and referred to the low conviction-rate which the supergrass system had by this stage achieved, together with Lord Lowry ‘s judgment in the Mc Grady case, as evidence of the ‘scrupulous care ‘ which the judiciary had brought to bear upon supergrass evidence.
Restoration to the Register
Authors: Smith Russell G
Published: November 2023

Originally, once a practitioner’s name had been erased from the Register for disciplinary reasons, it could not be restored, thus making erasure a final and irrevocable termination of a doctor’s career as a registered practitioner. Indeed, as will be seen from the following discussion, a high proportion of practitioners whose names have been erased from the Register do not seek restoration and in serious cases the practitioner may simply indicate at the, hearing that he or she will never seek restoration, in the future (e.g. Case No. 1658 (minutes 22-3 November 1982: 149--52)- -erased for drug convictions and improper association with three patients). Many practitioners do, how ever, apply for the restoration of their names to the Register as soon as they are entitled, and this chapter is primarily concerned with such cases.
Scoring and Grafting
Authors: Taylor Avril
Published: November 2023

Once the state of dependence is recognized and a decision to carry on with drug use is taken, two things become acutely apparent to the drug user: she has to make sure she has a steady supply of drugs to ward off withdrawal, and she has to find the means to do this. Until this point, drug use had been perceived as a part of her life. Drugs had been consumed as and when they became available, and this availability had not been recognized as an essential part of her life. This is not to say that purchasing drugs and financing this had not already become a major part of her everyday life. Becoming physically dependent requires that substances have to be taken on a regular basis over a period of time (Zinberg, 1984). But recognition of the stage of dependence brought with it a simultaneous recognition of the importance of the other features of a drug lifestyle. In particular, two activities assume major importance: obtaining a supply of drugs and finding the means, usually financial, to make this possible.
The Right to Development: A Right of Peoples?
Authors: Rich Roland
Published: November 2023

In 1982 I set out some of the arguments for recommend of the right to development as a human right. That paper stopped short of the claim that the right to development was a part of positive international law. That being the case I did not believe I needed to make explicit what seemed implicit-that major international law texts do not list the right to development as an existing human right. My aim was to cite authorities who had recognized the right to development as a means of gauging the level of acceptance it had achieved.
The Rights of ‘Peoples’ and Individual Rights: Conflict or Harmony?
Authors: Triggs Gillian
Published: November 2023

In 1966 the United Nations General Assembly was unable to agree to include civil and political rights in the same document as economic, social, and cultural rights. The resulting human rights instruments, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESR), were each formulated, in the main, in terms of individual rights. At least some civil and political rights now command respect as rights in customary international law, whereas it is doubtful that economic, social, and cultural rights are more than political aspirations. For this reason, among others, attempts have been made, within UNESCO and elsewhere, not only to emphasize fundamental economic, social, and cultural rights but also to reformulate certain individual rights as collective rights or rights of ‘peoples’. International law presently affords limited protection to ‘peoples’: the right to self-determination, the right to physical existence under the Genocide Convention of 1948, the right to ‘permanent’ sovereignty over natural resources, and the rights of indigenous peoples and of ethnic, religious, and linguistic minorities under Article 27 of the ICCPR have been cited as examples.
Black Consciousness on Trial
Authors: Lobban Michael
Published: November 2023

The day after the Viva Frelimo rallies, ten people were formally charged in connection with the events in Durban, and on the next day the net cast wider, with raids on the homes of Drake Koka of BAWU, Mathe Diseko of NAYO, Jeff Baqwa, Ruben Hare, and Steve Biko. In addition, the Johannesburg branches of BCP and BPC were raided, as were the homes of many members of the organizations. Twelve who had attended the rally were charged under the Riotous Assemblies Act, though they were all participants rather than organizers. The authorities were clearly using the rallies as a pretext for a wider crackdown, for those detained at the end of October under the Terrorism Act included those, like Mapetla Mohapi in King William’s Town and Barney Pityana in Port Elizabeth, who had played no part in the rallies. Further arrests would be made in January, when Sadecque Variava and Solly Ismail were arrested. This general round-up was in preparation for a major trial: but as yet it remained wholly unclear who would be charged and what the charges would be. This was not resolved until the last day of January 1975, when twelve men (soon to be thirteen) appeared to be charged in the Pretoria magistrates’ court.
Breaking the Structures: Terrorism Trials after the Soweto Uprising
Authors: Lobban Michael
Published: November 2023

Gwala’s case showed that, where there seemed to be hard evidence against defendants, a court might be reluctant to reject the evidence by casting doubt on its reliability and questioning its origins. Given the evidence, however tarnished, a court would convict; and after June 1976, the courts were in many ways spoiled for evidence, for very many cases came to court with clear evidence against the accused. In this context, one might expect that the state would no longer have felt the need to fish for grand conspiracies, and that the courts would no longer have felt the imperative to build convictions on weak foundations. With the wealth of evidence, one might have expected fewer contentious trials. However, as will be seen in this chapter, this did not occur. While there was a flood of trials involving ANC and PAC structures where there was solid evidence against the accused, the state continued to seek to prosecute even very minor cases to deter those who even dreamed of seeking recruitment.
Black Revolt on Trial: Sedition and the Soweto Students
Authors: Lobban Michael
Published: November 2023

Although the authorities wasted no time in prosecuting thousands for public order and security offences arising out of the riots,1 it would take more than two years after the riots began for a trial to begin which sought to ascribe blame for the unrest overall. It was not until 25 September 1978—the fourth anniversary of the Viva Frelimo rallies—that eleven members of the Soweto Students’ Representative Council2 came to court to face charges of sedition. As will be seen in this chapter, the state displayed a very different attitude towards the students in this case from that shown to the students in the trial of the Pretoria Twelve and the Bethal trial. The students were to be branded not as revolutionaries but as seditionists, disturbing the state, but not seeking to overthrow it.
Conclusion
Authors: Lobban Michael
Published: November 2023

Although this study ends in 1979, there was to be no interruption in the number of political trials. In contrast to the late 1960s, the early 1980s saw no lull in political activism or in the state’s oppressive response. Security trials remained a permanent feature. As well as bringing charges under the Internal Security Act (the successor to the Terrorism Act), the state turned increasingly to charges of treason. With the imposition of annually renewed states of emergency after 12 June 1986, with major trials being supplemented by large-scale, long-term detentions,4 and with the courts increasingly being by-passed by the executive, it is apparent that political repression was clearly on the increase.
A Framework for the Comparative Analysis of Bills of Rights
Authors: Alston Philip
Published: November 2023

In 1787 Thomas Jefferson wrote a letter from pre-revolutionary Paris to James Madison opining that ‘a bill of rights is what the people are entitled to against every government on earth’.1 In the intervening two centuries, a great many peoples have got what Jefferson considered to be their due. Moreover, within the course of the last decade alone, bills of rights have assumed particular and renewed importance in an extraordinary number of countries in all parts of the world. Whether proclaimed by constitutional assemblies, adopted by legislatures, incorporated on the basis of international treaties or discerned by judiciaries, not only their number but also their importance (in formal terms, at least) have increased very significantly.
Bills of Rights in Comparative Perspective
Authors: Darrow Mac , Alston Philip
Published: November 2023

Constitution-making is an activity that has been especially high on the agenda of an unprecedented number of states during the final decade of the twentieth century. It is by now a truism that the adoption of a constitution does not, in and of itself, signal a state’s commitment, even in theory, let alone in practice, to constitutionalism. While the latter has been the subject of a great many definitions, it will suffice for present purposes to accept the minimum ingredients noted by Louis Henkin:
Wills As Social Documents
Authors: Finch Janet , Hayes Lynn , Mason Jennifer , Masson Judith , Wallis Lorraine
Published: November 2023

This book is about wills, in particular what they can tell us about the ways in which inheritance is used in contemporary Britain, especially in the context of family relationships. In this introductory chapter we shall consider the question: what are the distinctive characteristics of contemporary wills, as a resource for social research? Exploring this question highlights the value of studying wills as social documents, and also helps to identify their limitations. In the course of this introduction we shall also give details of our own study of 800 wills, on which this book draws.
Wills and the Transmission of Property Under English Law
Authors: Finch Janet , Hayes Lynn , Mason Jennifer , Masson Judith , Wallis Lorraine
Published: November 2023

This chapter develops further the theme that wills are public as well as private documents, considering them specifically in a legal context. The law creates the very concept of a will as the mechanism for the transmission of property. In addition, any system of law can influence the content of people’s wills either by requiring them to bequeath their property in certain ways or by forbidding certain types of disposition. Understanding the legal context therefore is essential in any study which seeks to interpret and draw conclusions from the provisions contained in wills.
Families, Bequeathing, and the Law
Authors: Finch Janet , Hayes Lynn , Mason Jennifer , Masson Judith , Wallis Lorraine
Published: November 2023

In previous chapters we have examined key patterns of bequeathing in our sample of wills, and explored the often complex implications of these for the nature of will-making in Britain over the last four decades. In this chapter we build upon these basic patterns and themes, but focus directly on what they suggest about the relationships between property and family/kinship.

We approach this broad issue from two different directions. To begin with, we examine what the wills tell us about family and kinship in the context of property transmission, by examining configurations of family and kin as beneficiaries in wills, and the salience of property in this context. In particular, we develop the concept of ‘inheritance families’ to structure our ideas in this section. Secondly, we go on to explore what the wills tell us about property in the context of family and kinship, by asking whether the patterns and types of bequeathing we have observed are suggestive of the perpetuation of ‘inheritable’ property. In broad terms, therefore, we are shifting the level of analysis away from what the patterns of bequeathing are, and towards a focus on what they express about family and property and how they express it.
State Practice: The Impact of the New Law of the Sea on Prior Fisheries Agreements
Authors: Kontou Nancy
Published: November 2023

In this century customary international law regarding fishery limits underwent considerable changes leading to the recognition of extended fishing zones first of twelve and subsequently of 200 miles. These developments called into question the continued validity of fisheries agreements concluded under the old legal regime. This chapter reviews a number of instances from State practice in this field that illustrate the untenability of treaty law in the face of general legal developments.
Conclusions: Supervening Custom as a Ground of Treaty Termination or Revision
Authors: Kontou Nancy
Published: November 2023

In this book we have examined a number of incidents where a treaty became incompatible with supervening customary law. In our view, the manner in which they were resolved supports the proposition that one party has the right to call for the termination or revision of a treaty on account of the development of new custom. State practice offers a number of examples where one or several of the parties clearly and forcefully argued for treaty termination or revision on account of its incompatibility with supervening custom. In some cases the consensus was rapidly formed that the treaty relationship should be re-assessed in the light of the evolution of the law. In the end the treaty was expressly abrogated, revised, or replaced by a new treaty; or it was brought to an end or modified by subsequent practice of the parties. In other cases the process of treaty adaptation to supervening custom was longer and at times more controversial, but the same result was finally achieved.
The Social World Of An English Crown Court
Authors: Rock Paul
Published: November 2023

The Social World of an English Crown Court is the first ethnographic study of a Crown Court Centre. It also describes the origins and early history of a pioneering project to support victims and prosecution witnesses appearing before the court-the Witness Support Project. Paul Rock analyses the major divide which exists in the life of the court between professional insiders and public outsiders. He describes how this divide created problems for witnesses and how the project set out to alleviate this. He provides details of how this division is built into court architecture, administration, and social relations, and examines how it stems from the preoccupation of court officials with the control of knowledge, public order, and emotion.
Statehood and After
Authors: Necatigil Zaim M
Published: November 2023

At the request of the United Kingdom, Cyprus, and Greece, the Security Council considered the situation in Cyprus during four meetings held on 17 and 18 November 1983. Mr Denktash, the President of the Turkish Republic of Northern Cyprus, went to New York to explain to the Security Council why the Turkish Cypriot people, in the exercise of their right to ‘self-determination’, had decided to put ‘a roof of statehood’ over themselves.
Economic, Social, and Cultural Rights and their Codification
Authors: Craven Matthew C R
Published: November 2023

Prior to 1945, international law was generally not concerned with how States treated individuals within their own borders. Such matters were regarded as being within the domestic jurisdiction of each State. Exceptions did exist in the cases of slavery, humanitarian intervention,2 the treatment of aliens, minorities, and the laws of war, but they were spasmodic, limited in scope,7 and largely political rather than idealistic in motivation. Following the Second World War, however, the international human rights movement was born. As a reaction to events prior to and during the Second World War, the allies, and later the international community as a whole, came to the belief that the establishment of the new world order should be based upon a commitment to the protection of human rights and fundamental freedoms. Accordingly the protection of human rights was declared to be one of the purposes of the United Nations (UN), and the UN Charter imposed certain obligations upon member States to that end.
International Law
Authors: Amerasinghe C F
Published: November 2023

In so far as the internal law of international organizations governing the employment relationship is considered a part of public international law, which was the approach suggested in an earlier chapter1 in this treatise, logically the conclusion would be unavoidable that international law is a source of that law, since all the rules applicable to the employment relationship in international organizations are part of public international law. However, this theoretical answer is not the answer sought when the question is asked whether international law is a source of international civil service law. What is being asked is whether specifically what may be termed traditional international law is a source of the law applied by tribunals to the employment relationship in international organizations. As was also pointed out, international civil service law, though a species of international law, has special characteristics.
Inadmissibility Ratione Temporis
Authors: Amerasinghe C F
Published: November 2023

Even though a case may truly fall within the competence of an international administrative tribunal, there may be reasons for its inadmissibility, arising from the provisions of the tribunal’s Statute or governing instruments. Inadmissibility results from conditions required to be fulfilled by those provisions. Conditions relating to the time-limits for the filing of an application could result in the application being inadmissible ratione temporis.
The Basis of Equitable Liability
Authors: Harpum Charles
Published: November 2023

The circumstances which must exist before a stranger may be made accountable for intermeddling in a trust remain as controversial as they did eight years ago when an attempt at a full survey of the authorities was published.1 That article was intended to provide for the first time some kind of coherent structure for the considerable corpus of authority, much of it little known. The concern was more to rationalise the existing caselaw than to map out possible paths of evolution. The article identified a number of reasons for the unsatisfactory and confused state into which the law had fallen. The first was a failure by the judiciary over the last twenty years or so to take cognisance of the range of circumstances in which an intermeddler had in the past been held liable. Secondly, and connected with this, there was a weakness of factual analysis and an apparent inability to isolate the principles upon which liability should be imposed.
Audiovisual and Telecommunications Services
Authors: Eeckhout Piet
Published: November 2023

Community action in the field of audiovisual services is almost exclusively directed towards television broadcasting. The latter is probably one of the most characteristic examples of the changes taking place in the nature of service transactions and, correspondingly, their perception, as referred to in Chapter 1. There it was said that services play an ever increasing role in modern economies, and are more and more looked at from an economic perspective. That is certainly the case with television broadcasting in Europe, which until a few decades ago was exclusively government-organized, i.e. a public service, but which has evolved into a real industry. The picture emanating from this evolution is very mixed. There are, on the one hand, official broadcasting organizations, funded by governments and pursuing non-commercial objectives such as the provision of information, entertainment, and the diffusion of artistic performances. On the other, there are commercial broadcasters, funded mainly by private advertisers and operating with a view to making profits. Nevertheless, they also provide information, entertain ment, and the like.
The Community Regime for Imports of Goods from Third Countries
Authors: Eeckhout Piet
Published: November 2023

In the Commission’s White Paper on the completion of the internal market there are few references to the external dimension of the programme. One of these-probably the most important one---concerns the application of Article 115, EC Treaty. The scope of this provision is well known. It allows that Member States restrict intra-Community trade in products, originating in third countries, for which there is not yet a uniform Community import regime. Hence, for a number of products Member States were still able to protect their national market, not only against direct imports from third countries, but also against indirect imports, against products which were in free circulation in the Community. However, to fend off indirect imports required controls at intra-Community borders. These controls are one of the main targets of the internal market programme. Their elimination is one of the most tangible elements of ‘1992’ for the public at large. Consequently, some solution had to be found for the problem that Article 115 was still applied, giving rise to intra-Community border controls.
The Community’s Export Policy and the Case of Strategic Export Controls
Authors: Eeckhout Piet
Published: November 2023

In the previous chapters the incomplete state of the Community’s commercial policy with respect to the regulation of imports was discussed. However, it is not only with respect to imports that, at the time when the internal market programme was devised, full uniformity had not yet been achieved. The Community’s rules on exports-basically proclaiming the principle of free exportation-did not yet apply to all products. The exceptions could be classified in two categories. The first were the products expressly mentioned in the basic regulation as not benefiting from the rule of free exportation. These included, on the one hand, a variety of products for which for one or other reason export restrictions were still in force, and, on the other, petroleum products. The latter were kept outside the scope of the regulation because of their importance for the various Member States in terms of securing the supply of energy, and because of the fact that trade in these products is to some extent regulated by the International Energy Agency. The former category has been almost completely eliminated, whereas a provisional solution was found for the latter. These restrictions will not be further discussed here, for one thing because they were not that important from the perspective of completing the internal market (unless one looks at the creation of an internal market for energy products, a subject which is not addressed in this study).
Rule-types and Government
Authors: Baldwin Robert
Published: November 2023

A wide variety of written rules is used within government. The list of different terms attaching to sets of rules is itself intimidating. Apart from primary legislation, a series of labels is encountered including: secondary legislation; delegated legislation; sub-delegated legislation; quasi-legislation; administrative rules; codes of practice; approved codes of practice; guidance; guidance notes; policy guidance; guidelines; circulars; frame work documents; outline schemes, and statements of advice.
Rules, Discretion, and Legitimacy
Authors: Baldwin Robert
Published: November 2023

Rules have often been advocated as a means of controlling governmental discretions. 1 Indeed, when discussing how a governmental activity should be carried out there is a strong temptation (especially for lawyers) to ask: ‘Should this activity be governed by rules or discretion?’ Assessing governmental processes involves, however, far broader issues than are encompassed in the ‘rules versus discretion’ debate. The operation of government gives rise to a host of questions concerning the exercise of power and the acceptability of various means to control or facilitate the exercise of that power.
Rules Made by Governments
Authors: Baldwin Robert
Published: November 2023

Parliamentary, or primary, legislation might be taken to be the most important category of rule-making. In some respects, however, such a supposition would be mistaken. The bulk of primary legislation is vastly exceeded by that of rules made by ministers, departments, and agencies. Thus, the Public General Acts on average cover 2,000 pages whereas Statutory Instruments (which do not include by-laws or many classes of administrative rule) average 6,000 pages. 1 Nor is the issue one of quantity alone. Increasingly the key functions of government are carried out by means of secondary and tertiary rules, which have experienced what Ganz has called ‘an exponential growth’. 2 As Hayhurst and Wallington have put it: ‘primary legislation has become a skeletal enabling framework conferring not just the functions of detailed implementation but the power to determine major policy questions on ministers.’ 3
Models of Prosecutorial Sentencing
Authors: Fionda Julia
Published: November 2023

The preceding chapters have shown that the extent to which a public prosecutor is regarded as having a significant impact on the sentencing process differs substantially in the four jurisdictions compared. Various haphazard contributory factors have produced an incoherent pattern of degrees of prosecutorial power in the sentencing field. The four European countries have, for circumstantial and historical reasons, pursued reform in this area at different paces and times and consequently have arrived at different stages of evolution. Comments in the previous chapters have also shown how background factors in each jurisdiction, as well as the operational philosophies and self-reflective attitudes of practitioners, have had a substantial influence, whether restrictive or librational, over the evolution of the prosecutor’s role. Hence, the present picture of prosecutorial change in Scotland, the Netherlands, Germany, and England and Wales reads rather like a league table of that evolution. In ascending order, the English CPS, being in its infancy in comparative terms, allows only a strictly limited role for the Crown Prosecutor in influencing sentence; that influence is limited to an indirect, consequential exercise of persuasion related to their procedural decision-making, except for their power under s. 36 Criminal Justice Act 1988 to appeal against unduly lenient sentences. This is the only explicit and direct form of influence over sentencing that Crown Prosecutors currently possess. However, there exists in England and Wales an abundance of potential for development and improvement of the prosecution system, by virtue, principally, of that infancy and immaturity.
Environmental Damage
Authors: Juenger Friedrich K
Published: November 2023

This chapter is largely limited to the United States and the European Community. The parallels and the contrasts between these two systems—being federal and quasi-federal in nature—warrant this limitation. Moreover, I must confess ignorance regarding the laws of most other nations. Not only would it be presumptuous to claim a sufficiently well-grounded understanding of the pertinent rules and practice of, say, Latin American or Asian jurisdictions, but the effort expended trying to fathom what is going on there would probably not justify the conclusions reached, tentative as they would have to be in any event.
Privacy and the Press
Authors: Barendt Eric
Published: November 2023

William Prosser once wrote about privacy that ‘no other tort has received such an outpouring of comment in advocacy of its existence’.1 Similarly, a wealth of recent departmental and other committee reports has been devoted to the possible introduction of a privacy right into English law. The Lord Chancellor’s Consultation Paper has recommended the institution of a civil remedy to protect the right. At times during the course of the last two years, the Government apparently has been on the point of issuing a White Paper with such a proposal, but a nervous administration, fearful of the power of the press, has (at the time of writing) hesitated to take the step. In the meantime press organizations have published Media Freedom and Media Regulation, described as an alternative White Paper, making the case against the introduction of a privacy right.
The New European Order for Public Service Broadcasting
Authors: porter Vincent
Published: November 2023

At their Fourth Ministerial Conference on Mass Media Policy, held in Prague on 7-8 December 1994, the participating ministers, along with the ministers from half a dozen non-member states, unanimously adopted a resolution on the future of public service broadcasting. It marked a turn away from the steady trend at the European level towards the deregulation of broadcasting, and a hostility to public service broadcasting in particular. In theory, the future European regulatory framework for public service broadcasting will be different from that of the past. States will now have to develop national policies for public service broadcasting which conform to the changing policies of both the Council of Europe and the European Union.
Freedom of Expression and Free Competition at the New Electromagnetic Frontier
Authors: Porter Vincent
Published: November 2023

The development of new communications technologies, such as geostationary satellites, digital transmission, and fibre optic cables, has created the opportunity for vast changes in electromagnetic communication. They have also challenged the traditional mode of regulation at both the international and the national level. In the early 1980s, neo-liberals in the USA and Western Europe dreamed that the growing trends towards the internationalization of broadcasting and the improved use of the electronic spectrum would be followed by deregulation. The new generation of satellites would liberate telecommunications from the iron grip of the PTTs.
Introduction
Authors: Mitchell Charles
Published: November 2023

Subrogation is literally ‘substitution’.1 The term is used in the context of English and Commonwealth law to describe a process by which one party is substituted for another so that he may enforce that other’s rights against a third party for his own benefit. The entitlement to be subrogated to another’s rights of action against a third party may be expressly conferred by contract.2 Some examples of contractual subrogation are considered in Part V. However, this book is primarily concerned with legal subrogation; that is to say, with sub rogation arising by operation of law, as a remedy awarded by the legislature and the courts. There is judicial authority for the proposition that subrogation can be awarded as a remedy only in isolated situations, and that it should not be treated as a remedy of general application.
Necessity
Authors: Mitchell Charles
Published: November 2023

Despite the traditional reluctance of the English courts to allow the recovery of payments made under necessity,1 there is a significant body of case law in which necessitous interveners of assorted kinds have been awarded a restitutionary remedy. On the basis of these cases various commentators have argued for the adoption of a general principle in favour of recovery for payors under necessity2 and some recent cases have suggested that the courts may be moving towards the acceptance of such a generalized principle.3 The best explanation of the award of a remedy to necessitous interveners is policy based: it is desirable as a matter of policy to encourage people to intervene to preserve the lives or property of others. This explanation seems stronger than the alternative explanation which can be advanced in the context of many necessity cases that the intervener acted under moral compulsion.4 As Burrows has pointed out,5 the difficulty with viewing moral compulsion as the unjust factor entitling necessitous interveners to a remedy (apart from the fact that various categories of necessitous intervener, for example salvors, undertakers, liquidators, act in the conscious expectation of reward) is that people activated by moral compulsion ought not to expect the law to give them a remedy.
Milk Quotas
Authors: Cardwell Michael
Published: November 2023

Since their introduction in 1984, milk quotas have become a prominent feature of the Common Agricultural Policy. The vigorous and yet at times questionable trade in milk quotas is a strong indication that its legal ramifications are underestimated at their peril. Indeed practitioners in this area cannot afford to ignore the astonishingly large number and high value of dealings in quota. Academics as well are no longer in doubt as to the importance of quota legislation and its ramifications. Milk quotas constitute a major and novel extension of Community power in the agricultural sector and represent a potent force in the development of Community law. Indeed, the Common Agricultural Policy gives rise to the single largest body of cases before the European Court of Justice with milk quotas taking a leading role. This indispensable and up-to-date practitioners' manual explores the influence that milk quotas have had on both EC and UK legislation. The author examines exactly how these quotas operate in relation to landlords, tenants, taxation and, consequently, rural culture itself. He goes on to consistently link the domestic effects of milk quota legislation to the European Court of Justice and identifies ways in which milk quota regulation is influencing other areas of EC law.
Introduction
Authors: Cardwell Michael
Published: November 2023

The milk quota system has now heen in place for over a decade and, under the current legislation, is to endure until the year 2000. Over time it has become established as a cornerstone of the dairy sector of the Common Agricultural Policy: and, indeed, the absence of a quota effectively precludes farmers from operating in that sector. None the less, milk quotas remain an elusive and esoteric subject, such characteristics being in part attributable to the highly detailed and, on occasion, highly technical regulatory framework. Moreover, there is frequently an uneasy match between Community law and national law. this difficulty being perhaps most pronounced in the application of Community provisions to landlord and tenant relationships.
A Kind Of Esperanto?
Authors: Steyn Johan
Published: November 2023

There is bound to be some hostility among English lawyers to the ratification of the U.N. Convention on Contracts for the International Sale of Goods, 1980. Such hostility is not simply the result of the conservatism of those who practise law: it is an aversion to what are conceived to be impractical and theoretical solutions offered in the name of misguided internationalism. Anthony Trollope explained this inclination of English lawyers in Orley Farm through the views of an experienced barrister of Lincoln’s Inn.
Innovations in Contract: An English Perspective
Authors: Beatson J
Published: November 2023

In 1983, in his Maccabean Lecture, Lord Goff said that the process of legal development should be a gradual development from the identification of specific heads of recovery to the identification and closer definition of the limits to a generalised right of recovery; a search for principle. This paper seeks to consider how well the English law of contract has been served by the incremental approach taken, in particular by the House of Lords. Although there are, as will be seen, notable counter examples, a case can be made for saying that the overall trend in the contract law of the 1980’s has been to move towards greater certainty. The late Professor Corbin, who stated that ‘certainty in the law is largely an illusion at best and altogether too high a price may be paid in the efforts to attain it”,would not have approved. The question is whether English law has achieved a reasonable balance between certainty and predictability and fairness in individual cases. Has English law’s tradition of providing practical solutions to demonstrated problems meant that, on occasion, it has lost sight of the goal of a general principle? Is it willing rigorously to re-examine its rules when it appears that the reasonable expectations of honest people are not being protected? Is it sufficiently concerned with ensuring that the law reflects the standards of behaviour expected by the public in the modern world; standards that are expected to be in a number of respects higher than in the past? What follows is not intended to be an exhaustive exposition and it may raise more questions than it answers.
Economic, Social, Cultural, Political, and Residence Rights
Authors: Cholewinski Ryszard
Published: November 2023

The degree to which the economic and social rights of migrant workers and their families are protected in European states of employment very much depends on whether EC freedom of movement applies. This freedom is accompanied by a series of wide-ranging economic and social entitlements. COE instruments, however, are less effective in safeguarding the economic and social rights of migrants. In particular, rights which affect state sovereign controls regarding the domestic labour market and immigration, such as access to employment and family reunion, and which are commonly subject to significant restrictions by countries of employment, are also the focus of numerous qualifications under COE instruments.
Self-induced Incapacity, Mental Disorder, and the Doctrine of Fault
Authors: Mackay R d.
Published: November 2023

The purpose of this Chapter is to discuss the relevance of intoxication to mental disorder and the attitude of the law towards defendants who seek to use some form of self-induced incapacity as a defence to a criminal charge. This in turn calls for consideration of the doctrine of ‘fault liabil ity’ which the courts have developed in order to ensure that not all such incapacitated defendants necessarily escape penal sanctions. Although the major legal developments within this area have naturally enough concerned alcohol and other forms of drugs taken for the purposes of intoxication, the courts have also had to deal with cases where incapacity can be traced to other factors, which in turn have required a different policy analysis. Further, the judiciary have been willing to permit their attitude towards self-induced intoxication to affect their reasoning towards the availability of other defences, a point which tends to have been neglected in legal analysis within this area. It is now proposed to address each of these topics within the broad context of fault liability. Before doing so however, it may be useful to say something about the effect which consumption of alcohol and/or drugs may have on individuals.
Conclusion
Authors: Röver Jan-Hendrik
Published: November 2023

If contract law was the favourite subject of comparative lawyers from the 1950s, security law has joined the ranks of the favourite subjects of studies and international reform efforts since the early 1990s. This was supported by two factors: first, the fundamental importance of security in lending transactions and thus for the economy at large; second, the difficulty of creating effective security due to (a) outdated national laws and (b) the fact that national limitations on the scope of security interests in cross-border situations demanded action at both national and international level.
Following
Authors: Smith Lionel D
Published: November 2023

In Chapter One the distinction between following and tracing was introduced. Tracing involves the identification of value in changed forms; it defines when it is possible to say that a substituted asset takes the place of another asset, in a sense which carries with it certain legal consequences. Following is a simpler matter; it concerns the identification of a thing in an unchanged form. It is the process of identifying a thing at one point in time with the same thing at an earlier point in time. When some thing is exchanged for another thing, it is the subject matter of a substitution.
Tracing Rules III: Special Problems
Authors: Smith Lionel D
Published: November 2023

This chapter addresses three special problems which are encountered in tracing. The first is called ‘tracing in transit’. As a matter of legal analysis, it is no different from what has been discussed in the last three chapters. It is rather a discussion of tracing and following in particular factual con texts. The second section addresses the business of proving the substitutions through which value is traced. Tracing value is like, for example, proving the formation of a contract; certain facts must be demonstrated, from which certain legal conclusions flow. The facts to be demonstrated are substitutions; the matter for discussion is how substitutions are proved, and who bears the burden of proving them.
Election and Defences
Authors: Smith Lionel D
Published: November 2023

In this final chapter, two areas are addressed, each with two sub-divisions. It has been suggested above that the mechanism of election is important in the making of claims to traceable proceeds. The first part of this chapter examines two kinds of election: that between personal and proprietary rights, and that between proprietary rights in different assets. The second part of this chapter considers defences to claims based on tracing. It does not purport to address every defence which could be relevant. It examines only two, which are especially relevant in this context: the defence of change of position, and the defence of bona fide purchase.
The Locus Standi of Non-Privileged Applicants to Challenge Measures in the Form of Decisions
Authors: Albors-Llorens Albertina
Published: November 2023

The object of this Chapter is to study the position of natural and legal persons who are non-addressees and who wish to obtain the annulment of a decision of the Council or the Commission,1 and, in particular, to ascertain the meaning of the terms ‘direct and individual concern’. These notions were not defined in the Treaty, and therefore it was for the European Court to make them meaningful through its case law. As a consequence, the core of this Chapter will be the study of such development in case law. First, however, we will survey briefly the locus standi conditions attached to the actions to obtain the review of the legality of administrative acts in the various Member States and those attached to annulment proceedings under the ECSC Treaty.2 Although it is true that the influence of the national legal systems must not be overestimated,3 given the autonomy of the Community legal system, it is also undeniable that they serve as a very helpful guide to the interpretation of the ratiolegis underlying the EC Treaty.
Preliminary Rulings on Validity
Authors: Albors-Llorens Albertina
Published: November 2023

As well as fulfilling the purpose of preserving the uniformity of Community law throughout the Community and of ensuring co-operation between the national courts and the European Court of Justice, the system of preliminary rulings offers an alternative route for the challenge of illegal action by the Community institutions.1 All three Community Treaties contemplate the possibility of obtaining a review of the validity of Community acts by means of preliminary rulings delivered by the European Court.2 Thus, once a Community measure (e.g. an agricultural regulation) has been implemented by the national author ities, a private party may challenge the national measure before the national court, which may, in turn, refer a question about the validity of the Community measure to the European Court. Under Article 177(1)(b) of the EC Treaty,3 the European Court of Justice of the European Communities has jurisdiction to give preliminary rulings relating to ‘the validity and interpretation of acts of the Institutions of the Community and of the European Central Bank’.4 Article 41 ECSC Treaty gives jurisdiction to the European Court to deliver preliminary rulings on the validity of acts of the Commission and the Council ‘where such validity is in issue in proceedings brought before a national court or tribunal’.
The Protection of Commercial Interests Under the European Convention on Human Rights
Authors: Duffy Peter
Published: November 2023

It is a particular pleasure to have been invited to contribute on this topic in honour of Professor Roy Goode. Roy Goode’s standing in his chosen field of commercial law is deservedly outstanding. His contributions to scholar ship, particularly his book on commercial law, are magisterial. He has made very significant public service contributions in particular to the Committees on consumer credit and pensions. He has also shown remarkable dedication to the universities that he has served over the years. As a junior colleague at Queen Mary College nearly 20 years ago, I well recall how he conceived of a privately-funded centre of excellence in commercial law when such a proposal was a pioneering innovation. With characteristic drive, charm and insistence, Roy Goode brought that Centre into being very successfully. In addition to all these achievements, throughout he has been a fine teacher and research supervisor, held in high regard by those who had the good fortune to pass through his hands. He is also a thoroughly pleasant colleague.
Caseflow Management in the Trial Court
Authors: Scott I R
Published: November 2023

It is sometimes said that converts are more zealous than those brought up in the faith. Zealots cause alarm, even in the breasts of the devout. They disturb believers by forcing them to re-examine the depths of their own faith; further, they are not easily distinguished from misguided fanatics. It is not disrespectful to say that Lord Woolf is a convert to case flow management (CFM). His zeal for CFM, exhibited in every chapter of his Interim Report, is strikingly apparent. Indeed, without exaggeration it can be said that CFM is the linch-pin of the whole of the Report. Court control of case progress is the basic principle of CFM. Of all the many proposals put forward none is more important than the recommendation that there should be ‘a fundamental transfer in the responsibility for the management of civil litigation from litigants and their legal advisers to the courts’.