bluuebunny/crossref_metadata_2025 huggingface dataset:
The Optional Protocol to the ICCPR
Authors: Goldrick Dominic Mc
Published: November 2023

4.1 This chapter examines the work of the HRC in implementing the OP to the ICCPR. A right of petition (communication) to or against governments is of long historical standing both in national and international law. Proposals to include such a right in the international bill of rights proved controversial. That controversy is briefly examined in section A. Section B concerns the structure and terms of the OP. Section C deals with the status of the OP and of communications submitted under it. Section D examines in detail how the practices and procedures of the HRC have developed the structure of the OP. These aspects are linked to section E which reviews how the HRC has approached and interpreted the terms of the OP, the ICCPR, and its own rules of procedure in the consideration of communications. The HRC’s views on a series of substantive rights in the ICCPR are examined in the following chapters. Finally in this chapter, section F offers an appraisal of the work of the HRC under the OP.
Article 2
Authors: Goldrick Dominic Mc
Published: November 2023

Each State party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political, or other opinion, national or social origin, property, birth, or other status.
Article 6
Authors: Goldrick Dominic Mc
Published: November 2023

Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgement of a competent court.
The Sources of Legal Judgment
Authors: Lobban Michael
Published: November 2023

Given that the common law was based on a system of pleas and forms of action and that common lawyers sought for its sources outside that law, it can be seen that it was no static set of eternal rules, nor was it divorced from society and social considerations. As Lord Kenyon put it, judges were not ‘men writing from their closets without any knowledge of the affairs of life, but persons mixing with the mass of society, and capable of receiving practical experience of the soundness of the maxims they inculcate’. The common law was not a self-contained science: it was rather based on a system of forms which allowed lawyers to look outside the law for solutions to legal problems, once the terms of the legal dispute had been set. This did not mean that every case was a wholly new adjudication, where the judges were free to rule as they pleased, based on their ideological or political prejudices, however: for the common law was an artificial forum, where the judges were constrained by the forms of law, its analogies and precedents. Judges remained faithful to a consensus on legal rules, where that consensus existed;4 and in most cases, there was little dispute as to what the law was, since the force of precedent and analogy could give uncontentious answers to legal problems. In these cases, judges did not need to look to social considerations very far, but could answer legal problems from the idealist position that doctrine held all the answers.
Surrender, Occupation, and Private Property in International Law
Authors: Ando Nisuke
Published: November 2023

The most recent title to appear in the Oxford Monographs in International Law series, Surrender, Occupation, and Private Property in International Law examines the legal situation which arises during periods of occupation in respect of private property which is temporarily used, annexed, or destroyed by occupying forces. It asks what happens to that property after occupation ceases, and addresses the issues of restitution and compensation which may sometimes arise. The author focuses upon the post-war occupation of Japan by American forces as the principal example around which to develop his arguments, and makes extensive use of documents from this period. Relatively little has been written about this crucial period in Japanese history, and the successful linking of the historical and legal aspects in this study will make this book of considerable interest to international lawyers and modern historians.
The Applicability of the Hague Regulations to a Post-Surrender Occupation
Authors: Ando Nisuke
Published: November 2023

Before proceeding to examine the applicability of the Hague Regulations to a post-hostilities occupation of enemy territory, a brief look into the provisions of Section III of the Regulations, particularly those concerning an occupant’s treatment of private enemy property, is in order.
Conclusion
Authors: Ando Nisuke
Published: November 2023

The theme of the present book has been an international legal evaluation of some specific occupation measures which the USA, as the occupant, adopted in order to demilitarize and democratize occupied Japan after the latter’s surrender in the Second World War. Particular attention has been paid to the occupant’s treatment of Japanese private property involved in these measures. While most of the occupant’s handling of Japanese private property has been considered a legitimate exercise of the power that the USA was accorded in international law, a few actions have been held to be in contravention of that law. Irrespective of the validity of these evaluations, this Conclusion proposes to make general observations on some of the international legal problems concerning a surrender, an occupation, and an occupant’s treatment of private enemy property.
Ministering to a Gentler Age, 1947–65
Authors: Windlesham Lord
Published: November 2023

Commending the Criminal Justice Bill to Parliament in 1947 the Home Secretary, Chuter Ede, said that it followed closely on the lines of a Bill which had been before the House of Commons in the session 1938–9. The previous Bill had passed through Committee and was well advanced ‘when international affairs so occupied the time of this House that it was impossible to carry the Measure to the Statute Book’. The circumlocution obscured the compelling fact that the earlier Bill had been abandoned two months after the outbreak of war with Germany.
Conservatives Ascendant, 1979–88
Authors: Windlesham Lord
Published: November 2023

By the time of the General Election in May 1979, which brought the Conservatives to power for a period lasting into the 1990s, the legislative cycle described in the opening chapter had settled into a regular rhythm. The continuing momentum of the drive towards the creation of fresh criminal justice legislation at regular intervals should not be underestimated. General elections provide milestones and signposts pointing to changes in direction and priority, but they rarely presage the most significant developments in policy. More often these result from longer-term forces activated by factors that may not be apparent in the feverish atmosphere engendered by elections, or from shorter-term and more acute forces released by untoward incidents attracting adverse publicity in Parliament and the press, such as prison riots or escapes, miscarriages of justice, public disturbances or disasters, sometimes leading to an inquiry. The report of the inquiry then sets an agenda for future political action. For all these reasons, as well as the risks of giving hostages to fortune, the statements on criminal policy made by the main parties at election time tend to rely more on generalities than on specific proposals.
Discharge for Breach: Instalments, Deposits, and Other Payments Due Before Completion
Authors: Beatson J
Published: November 2023

Many contracts contain provisions requiring one party, the purchaser, to make an advance payment to the other party, the vendor, be it for property or services. Perhaps the most common examples of such provisions are the deposits required in contracts for the sale of land and the instalments or progress payments required in building contracts. Where such contracts are discharged before performance is completed the remedial consequences may be complicated. The position of sums due at the time of discharge, whether paid or not, raises questions of the relationship between damages, debt, and restitution. This essay discusses the remedial problems which arise where such contracts are discharged by reason of a breach of contract by the person liable for the payment. Although the same principles should govern all cases of discharge,1 the consequences of frustration and discharge for breach by the person to whom the payment was due will only be dealt with incidentally. The consequences of frustration are now governed by statute2 but the position where the contract is discharged as a result of a breach by the person to whom the payment was due will be considered where it is relevant to the analysis.
Gap-filling and Risk-reversal
Authors: Beatson J
Published: November 2023

One of the important tasks of restitution is as a principle used to give new perspective to old problems. Inevitably there is an overlap between this function and the use of the principle as a source of an independent claim. For instance, both duress and mistake may cause a payment (independent claim) or the creation of a new contract (which may be rescinded or not enforced). They may also cause the variation of an existing contract. When causes of unjust enrichment are studied the two functions are inevitably considered together. Thus, if it is said that duress of goods founds an action for money had and received, as in Astley v. Reynolds,  1 why should not duress of goods also render unenforceable a contract made as a result? Again, if total failure of consideration will make money paid under a contract and money paid under a conditional gift or in anticipation of a contract2 recoverable, why should not contracts made where there is a similar failure be set aside? But one can go too far along this line.
Treat Me Right
Authors: Kennedy Ian
Published: November 2023

This book brings together a wide cross-section of the author's work in the field of medical law and ethics. Many of the articles have appeared previously in journals, but all are updated. Some are published here for the first time. Professor Kennedy, a former Reith Lecturer and a well-known scholar and broadcaster, writes not only authoritatively and informatively about the subject, but often in a way that is provocative, controversial, and amusing. It is a collection that will interest the lawyer with medico-legal interests, and the doctor who wants to know more about the rights, duties, and liabilities of his profession, the student of law or medicine, and the layperson who follows developments in this scientifically complex and morally contentious area of law.
Emergent Medical Models
Authors: Teff Harvey
Published: November 2023

Much of the opposition to paternalism in medicine has focused on its denial of rights, particularly on the denial of the patient’s moral and political agency when choice of treatment is pre-empted and more or less unquestioning trust expected. There has been far more concern that paternalistic medical practice undermines the patient’s ‘right to self-determination’ than that it might be detrimental to patient welfare. A commitment to viewing individuals as ends in themselves, free to choose their own destiny, has of course featured very prominently in general ethical debate, if not in professional medical ethics. As Feinberg puts it, ‘every person’s moral right to govern himself surely outweighs the “right” of benevolent intermeddlers to manipulate him for his own advantage, whether that advantage be health, wealth, contentment, or freedom’.1 Appeal to such sentiments can be especially powerful when invasive medical procedures are contemplated. The desire to protect and promote patients’ ‘rights’ is both an understandable and a rhetorically compelling reaction against the traditional concern with their ‘best interests’.
Patients’ Rights
Authors: Teff Harvey
Published: November 2023

A doctor-centred conception of health care is beginning to lose ground in part because of growing sympathy for the view that patients are entitled to decide what is done to them. In its insistence that individuals be viewed as ends in themselves, a model of patient autonomy seems to offer an appealing contrast to the Hippocratic emphasis on presumed best interests. It also translates naturally into legal form in any system of law which puts a high value on the ‘right’ to self-determination and to bodily inviolability. Like the crime of assault, the tort of battery has been said to hinge on ‘the fundamental principle, plain and incontestable ⃛ that every person’s body is inviolate’. As Lord Donaldson was to put it, ‘in the absence of consent all, or almost all, medical treatment and all surgical treatment of an adult is unlawful however beneficial such treatment might be. This is incontestable.’ At first sight, then, the availability of the action for battery suggests the clearest possible repudiation of paternalism and a vindication of patient choice. In Judge Cardozo’s wellknown formulation; ‘every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault for which he is liable in damages’.
Collaborative Autonomy
Authors: Teff Harvey
Published: November 2023

In Sidaway, Lord Scarman alone favoured incorporating what he called the ‘transatlantic doctrine of informed consent’ into English law. He saw the doctrine as embodying the doctor’s obligation to satisfy the patient’s right to know. In his view, this obligation forms part of the doctor’s duty of care derived from the patient’s rights—the ‘right to be informed of the risks inherent in the treatment which is proposed’ so as to be able to exercise the right of ‘self-determination’. We have suggested that this rationale is misconceived. However, though a rights-based justification of informed consent is problematic within the context of negligence, and though the vocabulary of rights has been misleadingly deployed under the regis of negligence by jurisdictions that have embraced the doctrine, it remains possible to accommodate a conception of informed consent within negligence as a dimension of the doctor’s duty of care. Properly conceived, the doctrine represents both a noble aspiration and a practical aid to doctorpatient relationships which the law should endorse.
The Payment of Foreign Money Obligations
Authors: Mann F A
Published: November 2023

THE preceding chapters have been built upon questiqns raised by an imaginary case which has served as a guide to a logical and systematic exposition of the law of foreign money obligations. The case of a promise, made in Vancouver by a Montreal business man, to pay to a San Francisco firm ‘100 dollars’ in London necessitated an investigation of the nature of foreign money obligations in general (Chapter VII); it has then to be ascertained whether Canadian or United States of America dollars were the subject-matter of the obligation, and we thus came to a discussion of the problems surrounding the determination of the money of account in general (Chapters VIII and IX); finally, we had to examine the various problems connected with the value of the foreign money of account and the quantum of the obligation (Chapter X).
Exchange Control under the International Monetary Fund Agreement
Authors: Mann F A
Published: November 2023

As between the 150 members or so of the International Monetary Fund (except Australia, Mexico and Sweden1) the law of exchange control differs from the general rules applicable to exchange control. In those member States the rule of positive law laid down in Art. VIII (2) (b) of the Articles of Agreement of the International Monetary Fund applies:

This provision (which provides a defence the factual elements of which have to be proved) constitutes a new departure.
Monetary Sovereignty, its Scope and its Limitation
Authors: Mann F A
Published: November 2023

The State’s undeniable sovereignty over its currency is traditionally recognized by public international law; to the power granted by municipal law there corresponds an international right to the exercise of which other States cannot, as a rule, object.2 As the Permanent Court of International Justice has said,3 ‘it is indeed a generally accepted principle that a state is entitled to regulate its own currency’. Money, like tariffs or taxation or the admission of aliens, is one of those matters which prima facie must be considered as falling essentially within the domestic jurisdiction of States (Art. 2 (7) of the Charter of the United Nations).
Treaty Rules of Monetary Conduct
Authors: Mann F A
Published: November 2023

Rules of monetary conduct, which arise from treaties, in principle apply only as between the contracting Parties. It would be wrong to assume that they express universally binding duties. In some cases, it is true, treaties merely repeat, perhaps in slightly different language, what in essence is a duty imposed by customary international law; the foremost example is the familiar provision whereby States undertake to ‘accord fair and equitable treatment’ to each other’s nationals,1 and which in law is unlikely to amount to more than a confirmation of the obligation to act in good faith, or to refrain from abuse or arbitrariness. In other cases the question may be put whether any of the rules of conventional international law have become so universal in application and so intensive in character as to lead to the creation of rules of customary international law.
The Status of Refugees in Asia
Authors: Muntarbhorn Vitit
Published: November 2023

The Status of Refugees in Asia surveys some of the key issues of law and policy affecting refugees in the Asian region. The movement and presence of refugees in different parts of the region is surveyed, and the general legal position - ranging from multilateral treaties to regional and national initiatives - evaluated. A selection of country profiles to illustrate the implementation of law and policy at the national level is provided, and the performance of three Asian countries which have acceded to the 1951 United Nations Refugee Convention and its 1967 Protocol is assessed: namely, China, Japan, and the Philippines. Attention is given to the five other countries which have not acceded to these instruments - Brunei, Indonesia, Malaysia, Singapore, and Thailand - and current critical refugee problem areas such as Afghanistan and Sri Lanka examined. The book concludes by examining current difficulties with state practice in the region and presents possible solutions and new directions for the future.
Introduction
Authors: Collier John , Lowe Vaughan
Published: November 2023

There is a widespread assumption that in a successful legal system disputes should be avoided, or at least resolved quickly and peacefully. That is not the premise from which this book proceeds. Rather, it is assumed that disputes—or, more strictly, the conflicts from which disputes emerge—are not wholly undesirable but have certain valuable characteristics, and that the proper function of law is to manage, rather than to suppress or resolve, conflict. A second premise is that recourse to law in dispute settlement is invariably an optional procedure, chosen because it offers certain short- or long-term benefits to one or more of the parties to the dispute. In this introductory chapter, these premises are explained and explored.
Mixed Arbitrations
Authors: Collier John , Lowe Vaughan
Published: November 2023

One of the most remarkable developments in international dispute settlement procedures has been the rapid growth of the institution of mixed arbitrations: that is to say, arbitrations between States on the one hand and non-State entities, usually corporations or, less frequently, individuals, on the other. The two most striking examples of tribunals handling mixed arbitrations are the tribunals established under the auspices of the International Centre for the Settlement of Investment Disputes (‘ICSID’), and the Iran-US Claims Tribunal. They are the subject of this chapter.
The Arbitral Process
Authors: Collier John , Lowe Vaughan
Published: November 2023

There are certain stages and problems common to all judicial procedures for the settlement of international disputes. The identity of the problems, and of the solutions, is evident when tribunals operate under the same rules—as, for example, international commercial arbitration tribunals and the Iran-US Claims Tribunal operate under the UNCITRAL Arbitration Rules. In fact, the similari­ties are more pervasive, as the frequency with which international courts and arbi­tral tribunals of all kinds refer to each other’s jurisprudence indicates. There are dear signs of a body of international procedural law emerging. The following account of the law is in principle applicable to all international tribunals subject, of course, to express stipulations to the contrary in the rules under which they operate. For convenience, however, reference will ordinarily be made to the law as it operates in the context of arbitrations.
Mass Torts
Authors: Fleming John G
Published: November 2023

Mass accidents have become a familiar incident of the modern way of life, a by-product of advancing technology in the production, distribution, and use of toxic agents, dangerous pharmaceuticals, fast modern transport, and other hazardous activities. A single type of product like asbestos or the Dalkon Shield, released on a mass market by one or numerous manufacturers, may inflict injury or disease on a vast multitude of consumers or their offspring. Or a single accident, like an aeroplane collision, explosion, or escape of poison gas, may bring injury or death to thousands and dislocation to a whole region. The first is sometimes called a mass products case, the second a mass accident. Both entail injury to multiple victims and present adjudicatory problems very different in magnitude and therefore in kind from those faced in routine accidents. The traditional method of case-by-case adjudication and the applicable principles of substantive law, still largely based on an individualistic philosophy of ‘corrective justice’ between man and man, are unequal to this challenge.
‘Yesterday’s Model’: Product Fetishism and the Cult of the Producer
Authors: Roper Michael
Published: November 2023

In the early stages of this project I often emerged from interviews with organization men feeling slightly disappointed about the way the sessions had gone. I was interested in what their work memories told me about their present identities as men. Yet I sometimes ended up with a clearer picture of the technology surrounding managers than of the men themselves. I soon realized that the problem lay in my view of life history, and the kind of empathy necessary for a successful interview. I was looking for clues about the men’s emotional relations with family or colleagues, and disregarding their enthusiastic descriptions of the physical objects which they dealt with in their work.
Images of Wives and Secretaries
Authors: Roper Michael
Published: November 2023

In the passage above the British industrialist, Sir John Haivey-Jones, pays tribute to his wife’s skills in the emotional arts. It was she, he tells us, who nurtured his self-confidence, thus enabling him to become one of Britain’s best-known and admired business leaders. Harvey-Jones here illustrates a central contradiction in the lives of organization men, between their social dominance in the workplace and family, and their emotional needs. The role of wife or secretary was clearly a subordinate one, yet the men believed that women were the more powerful sex.
The Legal Background
Authors: Wheeler Sally
Published: November 2023

THE basic concept of reservation of title is a simple one: by means of a contractual device the seller of goods retains ownership of his goods until he has received payment for them. The idea of reserving title until payment is not a new one. One of the most often cited earliest cases is McEntire v. Crossley Brothers. Here the contract was for the sale of a gas engine, title to which was retained by the seller until full payment was received. Payment was not forthcoming and the buyer was eventually declared bankrupt. The contract did not use the terms seller and buyer but lessor and lessee respectively. Ownership of the engine was claimed by the sellers/lessors. The argument confronting the House of Lords was one which became increasingly familiar to first instance and Court of Appeal judges involved in reservation of title cases until the Court of Appeal decision in Clough Mill v. Martin2-that the agreement was a charge; ownership had passed to the buyer and the seller had a charge on the engine for the outstanding monies.
Negotiation of Claims
Authors: Wheeler Sally
Published: November 2023

TRADITIONAL analyses of negotiation assume a bi-party dialogue which moves slowly towards some sort of agreed settlement. There are no detailed analyses of zero-sum negotiation. Obviously in the studies of personal injury claimants there are claims which involve a denial of liability. However, the potential for settlement at a point between the stances of the two parties exists. The nature of a reservation of title claim is such that if liability is admitted in the overwhelming majority of cases the claim must be satisfied in full. In a reservation of title claim situation one party, the insolvency practitioner, finds himself in a position of control and dominance; he has possession of the goods, repeat-player experience, and access to the records and employees of the insolvent company.
Tarnished Vision
Authors: Robins David
Published: November 2023

Once a group of young people (reformed street robbers) had a vision to transform their poor divided community. But the vision was tarnished by harsh reality, violent feuds and factional strife, corrupt and ineffective leaders, and youths involved in networks of criminality. Tarnished Vision is the story of the rise and fall of a utopian community project told against a background of crime and delinquency in a troubled neighbourhood. This vivid and authentic account of life in `Satellite City' is set in the 1980s, a decade when the promises of the enterprise culture failed to deliver, and the conditions were created for a generation hooked on crime. Tarnished Vision depicts the 1980s inner-city cycle of social tragedy followed by inept societal response, followed by social tragedy. But this is not only a story for the 1980s. The message is that programmes to save the inner cities, however well-resourced, cannot afford to ignore the destructive frustrations of urban male youths who are involved in crime. Community action programmes can be no more than window-dressing to camouflage these realities.
Confrontation
Authors: Robins David
Published: November 2023

At the end of 1981 the People’s Council put forward its own plan to the local authority, to move from the confines of its small centre on the Satellite Estate to an enormous disused road haulage depot. This was to be the way forward. The broken asphalt of the parking bays, the shattered brick facade and twisted steel frame of the main hanger--on this derelict site would one day stand a massive business, leisure, and entertainment complex. There would be a shopping mall and space for small businesses, a sports hall, a plush bar, music- and film-production studios, a restaurant, a discotheque, and a live-music venue. Community life would be transformed. Not only locally. ‘It will be a credit to the community everywhere,’ Leon Reed promised. The whole development would be managed by the People’s Council and supported by the local authority. Or so it hoped. From the start it was not an easy alliance.
Pornography: The Representation of Power
Authors: Kappeler Susanne
Published: November 2023

Thedebate about pornography which feminists opened in the 1970s seems to have ended in stalemate as most advocates in the public domain begin and end with the ‘conclusion’—that censorship is out of the question. Hardly anyone in fact engages with the analysis which feminists put forward about what exactly is the problem with pornography. Instead, the merest mention of ‘pornography’ is followed like a Pavlovian reflex by the word ‘censorship’, as if there was no context other than that of censorship and the law in which the problem of pornography could be raised. Although feminists have reopened the debate about pornography in a radically new context—the context of the civil rights of women and the context of a gender analysis of pornography1—the arguments invariably revert to the old and familiar playground of repression and taboo, liberation and permissiveness, where old certainties rule: since it used to be prigs and prudes who opposed pornography, we as sexual radicals must defend it (and since we arc for it, those against it must be prudes); since pornography is a right-wing issue, as liberals or lefties we are against it being an issue at all; since those against pornography arc for censorship, we as opponents of censorship must be for pornography. The feminist perspective on the problem of pornography has been well and truly buried again, as the old ghosts of church fathers and forbidding parents arc invoked once more. Despite the protestations of a permissive society, these ghosts continue to haunt the collective consciousness of the left and the media public.
Business Process Reengineering: A Phenomenon of Organization
Authors: Earl Michael J
Published: November 2023

Business Process Reengineering (BPR) is the latest management recipe being offered for the survival of Western businesses. Also known as Business Process Redesign, Process Innovation, and various combinations of these keywords, it has become the subject of best-selling books, a new practice area (sometimes trademarked) for consultants, a phenomenon upon which most business academics feel they should have a view, and a growing endeavour in many companies. The protagonists seem convinced that it is a new approach to improving business performance even if it may be a synthesis of recent and not-so-recent ideas. The cynics feel that they have seen it before in different guises and stress the apparent naivety of some of the component concepts.
The Chief Information Officer: Past, Present, and Future
Authors: Earl Michael J
Published: November 2023

The post of IT director probably appeared on the organization chart of large corporations in the early 1980s (Diebold Research Group 1984), while the title ‘Chief Information Officer’ —or CIO—hit our consciousness a few years later. The CIO label was perhaps a recognition that the Information Systems function had become critical in many organizations and that therefore its most senior executive deserved parity with, say, the Chief Financial Officer. By the end of the decade, the post-if not the title-was common in large organizations. It could be a main board position reporting to the CEO, or located one or two levels below, reporting to a board member.
Discretionary Decision-Making: A Jurisprudential View
Authors: Bell John
Published: November 2023

As Denis Galligan (1986a:l) has noted, discretion has not been a central topic of jurisprudential writing, though it has been a major focus of interest for legal sociology. While legal theory in the area of administrative law has paid significant attention to the issue of analysing discretion, it has tended to be with heavy emphasis on the judicial control ofadministrative action (see, especially, Venezia 1959). There has been only a limited effort to integrate the findings of sociological studies of discretionary decision-making into legal theoretical writing about the nature of law. This article offers merely a few pointers to the kind of theory of law which could emerge from such an integration.
Organizational Horizons and Complaint-Filing
Authors: Emerson Robert M , Paley Blair
Published: November 2023

Many socio-legal analyses conceptualize discretion as decisions made relatively unfettered by rules, and advocate ‘confining, structuring and checking’ decision-making as an antidote to the resulting ‘problems and abuses’. For example, in his classic analysis of discretion, Davis argues that a ‘public officer has discretion whenever the effective limits on his power leave him free to make a choice among possible courses of action or inaction’ (1969: 4). In this view discretion involves decisions that are unconstrained by rules, whether because rules do not apply, are vague, or multiple. Nondiscretionary decisions, in contrast, are those that accord with (and presumably are determined and constrained by) rules. Such an approach therefore dichotomizes ‘rules’ and ‘discretion’: the more of the former the less of the latter, and vice versa.1

It is now well established that a sharp rules-discretion dichotomy presumes and perpetuates overly narrow and mechanistic treatments of discretionary decision-making. This dichotomy obscures the contingent and variable processes of rule interpretation inevitably unspecified by the rules themselves. It specifically neglects the use of discretion to determine the relevant ‘facts’ or ‘situation’ to which specific rules apply, since, in the words of H. L. A. Hart, no rule can ‘itself step forward to claim its own instances’ (1961: 123). (See also Heritage 1984: 120-9).
Legacy: 1986-1993
Authors: Greer Steven
Published: November 2023

In a sense everything which has happened on the anti-terrorist front in Northern Ireland since the mid-1980s could be said to have been influenced to some degree by the failure of the supergrass system. But since many subsequent developments-for example, amendments to anti-terrorist legislation1 and refinements in the intelligence-gathering system2-might well have happened anyway, attention here will focus upon three particularly direct legacies: the effect of the supergrass system upon the level of political violence; the implications of the abolition of the right to silence for the prospect of further supergrass trials; and the enduring need for certain statutory reforms.
Supergrasses and the Criminal Justice System
Authors: Greer Steven
Published: November 2023

Some reference has already been made in preceding chapters to the roles played by various agencies of the state, especially the courts, in the management of the supergrass process in Northern Ireland. The purpose of this chapter is to consider these contributions in a more systematic fashion and to reflect upon the broader issues of institutionalization, accountability, and due process which reliance upon supergrasses has raised in the various systems of criminal justice surveyed in this study. As already indicated, when the first supergrass cases came before the courts in Northern Ireland, the presiding judges reacted in a predictably conservative fashion by claiming that in legal terms nothing new was happening, and that the prescriptions of the common law could be fulfilled by issuing the danger warning to themselves. However, in the course of the ten major supergrass trials and the five appeals, a sea change in judicial attitude took place, reflected in the retreat from the high conviction-rate of the first phase, the reluctance to permit convictions on uncorroborated supergrass evidence which this betokened, and the overhaul of conventional legal wisdom which had subtly occurred.
Shielding Judicial Action
Authors: Olowofoyeku Abimbola A
Published: November 2023

When the necessary factors are present, the preceding chapter and the above quotation have shown that the immunity accorded to judges of superior courts is absolute. This means that the immunity applies even if the judges are alleged to have been corrupt, malicious, or negligent. This is the law in many common-law jurisdictions. For example, it is the law of England, The United States of America, Canada, Australia, New Zealand, Nigeria,7 and Trinidad. The factors which are relevant to the provision of immunity are (1) whether the act complained of was a judicial act, and (2) whether or not it was within the jurisdiction of the judge. The discussion that follows addresses these issues specifically. The discussion will be general in nature, many of the points being applicable both to superior courts and inferior courts.
Absolute Immunity: Fixing the Limits
Authors: Olowofoyeku Abimbola A
Published: November 2023

The conclusion in the preceding chapter was that, while there is some justification in principle for a qualified judicial immunity, no such justification exists in respect of absolute immunity. While this indicates that the present rule of absolute immunity is not inevitable, it does not necessarily indicate the need for a shift to a rule of qualified immunity. In spite of the absence of a convincing theoretical rationale for absolute judicial immunity, the rule might arguably still be commended by some other factor, such as practical considerations or problems with defining appropriate bases of limitation. A rule of qualified immunity is already applicable in many civil-law systems2 and many common-law commentators support this type of rule.3 Yet there remains a question as to how best to fix the limits to the common-law absolute rule to achieve a result similar to the civil-law practice. Much was said in the preceding chapter about ‘a carefully worked out rule of qualified immunity’.
Rnaia v. Chester
Authors: Mann F A
Published: November 2023

In Royal National Agricultural and Industrial Association v. Chester (1974) 48 ALJR 304, the High Court of Australia in a joint judgment by Mc Tiernan, Menzies, and Mason JJ held that a gift of residue for the purpose of applying the income ‘in improving the breeding and racing of Homer Pigeons’ is not a valid charitable gift. The court was prepared to accept that the breeding of pigeons for racing is a purpose beneficial to the community:

They expressly declined to follow the approach of Russell LJ which is that after a finding that a purpose is beneficial to the community, the proper question to ask is whether there are any grounds for holding it outside the equity of the Statute: see Incorporated Council of Law Reporting for England and Wales v. Att.-Gen. [1972] Ch. 73 at 88, noted (1972) 88 LQR
Where is an Award ‘made’?
Authors: Mann F A
Published: November 2023

Part 11 of the English Arbitration Act 1950 deals with the enforcement of certain foreign awards. According to section 35, Part II applies to any award ‘made’ in certain defined territories and conditions. The Arbitration Act 1975 renders Convention awards enforceable in the United Kingdom and by section 7 defines them as awards ‘made ... in the territory of a state, other than the United Kingdom, which is a party to the New York Convention’. This definition corresponds to article I (I) sentence r of the New York Convention. Article V (r) (a) and (e) of the Convention also refers to awards ‘made’ in a certain country, while article V (1) (d) refers to ‘the law of the country where the arbitration took place’. Finally, by Article I of the Geneva Convention of 1927 an arbitral award ‘made’ in accordance with an agreement covered by the Protocol of 1923 shall be recognized as binding and enforceable.
Marrache v. Ashton
Authors: Mann F A
Published: November 2023

Most English decisions dealing with questions of the rate of exchange relate to the problem of determining the date at which a sum of money expressed in foreign currency is to be converted into sterling. It is therefore very fortunate that the Privy Council was recently given an opportunity of making an authoritative pronouncement on the type of rate which is to be employed in effecting the conversion. In Marrache v. Ashton [1943] AC 3n the facts were that the appellant was indebted to the respondents in the sum of I 10,000 Spanish pesetas which fell due for repayment on 25 May 1939. All parties were residents of Gibraltar, the law of which governed the contract and which was the place of payment. At the date of the contract gold and silver coins were legal tender in Spain, but as from 20 January 1939, peseta notes of the Bank of Spain were, apart from gold, the only legal tender in Spain. Under Spanish law it was illegal to export from, or import into, Spain such peseta notes. Yet they had a market in Gibraltar, London, and elsewhere.
Sovereign or Fisc?
Authors: Mann F A
Published: November 2023

The decision of the Court of Appeal (Lord Evershed MR, Ormerod and Devlin L JJ) in Page v. Commissioners of Crown Lands [1960] 2 All ER 726 primarily concerns the constitutional lawyer, but it is also of considerable interest from the point of view of comparative and international law and therefore merits some attention in these pages.
Re Philippine Admiral
Authors: Mann F A
Published: November 2023

On Guy Fawkes’ Day 1975 the Judicial Committee of the House of Lords and the Judicial Committee of the Privy Council respectively rendered decisions which relate to wholly different topics, yet have some common features.
Statutes and Choice of Law
Authors: Mann F A
Published: November 2023

MR Jaffey’s helpful remarks at ante, p. 198, require a short reply, for he fails to deal with what may be a vital point in the argument.

No one doubts that on account of Article X the Hague-Visby Rules incorporated into the Carriage of Goods by Sea Act 1971 are mandatory, and for present purposes it does not matter that Article X is also a self¬ limiting provision. Nor is it open to doubt that there is a mandatory rule to the effect that contracts having an international element are governed by their proper law and that except in the most special circumstances jurisdiction clauses are binding; these rules are in no way less mandatory by reason of the fact that they are embodied in the common law rather than a statute. Why, then, should the statutory rule prevail over the common law rule? Mr Jaffey suggests that ‘the statute is impliedly overriding’ or that there is an ‘implied statutory prohibition of the exclusion of the mandatory rules of the forum’ by the conflict or jurisdiction rule.
The Hague-Visby Rules and ‘The Force of Law’
Authors: Mann F A
Published: November 2023

Section 27 of the Arbitration Act 1950 gives power to the court to extend the time limit where ‘the terms of an agreement to refer future disputes to arbitration provide that any claims ... shall be barred’, unless some step to commence arbitration proceedings is taken within the time fixed by the agreement. The question whether this power exists in cases in which the time limit does not form part of the terms of the agreement itself, but applies indirectly, i.e. by reference to or the incorporation of some other provision such as Article III r.6 of the Hague or the Hague-Visby Rules, has occupied the courts for some time and led to much diversity of judicial opinion.
Recovering Currency Exchange Losses
Authors: Mann F A
Published: November 2023

On 1 July 1980 Greek shipowners and the President of India entered into a charterparty which provided for arbitration in London and was governed by English law. According to its terms demurrage, calculated at the rate of $6,000 per day, was payable in British sterling at the rate of exchange ruling on I July 1980. Discharge in India was completed on II October 1980. But outstanding questions of demurrage were decided by the Umpire only on 22 February 1983 when he awarded £10,232 being the sterling equivalent at the agreed rate of $24,250 payable for four days and one hour, and £5,514 being damages in respect of the depreciation of sterling from $2.37 to £1 to $1.54 to £1 on the day of the award.

.
Trading with the Enemy
Authors: Mann F A
Published: November 2023

The appeal against the decision of the Court of Appeal in Schering Ltd.v. Stockholms Enskilda Bank was recently dismissed by a majority of the House of Lords consisting of Lords Thankerton, Porter, and Goddard, Lord Russell of Killowen and Lord Macmillan dissenting: [1945] I AER 36.
Succession to Immovables Abroad
Authors: Mann F A
Published: November 2023

The sixth Duke of Wellington, who was also Duke of Ciudad Rodrigo in Spain, was the owner of certain real estate and movable property situate in Spain. He made a will in May 1942, which would appear to have been in the English form, but valid by the law of Spain and by which he gave his Spanish property to ‘the person who . will on my decease become Duke of Wellington and Ciudad Rodrigo’. In December 1942 he made another will whereby he gave his estate other than that disposed of by the will of May 1942, to trustees upon trust ‘for the person who upon my death shall become Duke of Wellington’. On the death of the sixth Duke in 1943 his uncle, Gerald, succeeded to the dukedom of Wellington, but the dukedom of Ciudad Rodrigo became vested in his sister.
Treaties before Municipal Courts
Authors: Mann F A
Published: November 2023

IN breach of obligations which the United Kingdom assumed by a treaty with Italy and which, in effect, provided for the release to the order of the Italian Government of all assets belonging to Italian nationals, the Board of Trade released the property of the late King of Italy to the administrators of his English estate. When the Republic of Italy instituted proceedings to recover the property, its action was dismissed on the paramount ground that the treaty had not been so incorporated into the law of England as to enable the court to hold that the release ordered by the Board of Trade was unlawful: The Republic of Italy v. Hambros Bank [1950] Ch. 314. In reaching this result Vaisey J confessed to ‘some bewilderment’ and in vain searched for ‘some explanation of what is to me inexplicable’ (p. 329). From the point of view of public international law the result is indeed a stain on English law, however inevitable it may have been in the present state of the authorities, for a treaty has been allowed to be displaced by English municipal law.
Conflict and Confiscation
Authors: Mann F A
Published: November 2023

IT is probably no exaggeration to say that Upjohn J’s decision in Re Helbert Wagg & Co. Ltd. [1956] 1 All ER 129 constitutes the most important pronouncement made by the English Judiciary in the year 1955 on the problems of both public and private international law. It raises many points of great interest, only three of which can be touched upon here.
English Damages for Maltese Accident
Authors: Mann F A
Published: November 2023

The decision in Boys v. Chaplin1 once more prompts the question, frequently raised in recent years, whether it is not high time to undertake a reform of the English rules of private international law relating to tortious liability in general and the assessment of damages in particular.
The Dyestuffs Case in the Court of Justice of the European Communities
Authors: Mann F A
Published: November 2023

It would have been satisfactory and fitting if, at the very moment when Britain becomes a member of the European Economic Community, it would have been possible to render an account of a decision of the Court of Justice of the European Communities, which is characterized by a persuasive analysis of the facts, by the cogency of its reasoning, and by its authoritative contribution to legal development. Unfortunately the decisions in the Dyestuffs Case, viz. in the case of Imperial Chemical Industries Ltd. v. Commission of the European Communities and in similar cases resulting in almost identical judgments,1 are unlikely to attract such comment. On the contrary, they are bound to give rise to some anxiety because, on certain aspects of great importance, they are not easily reconcilable with traditional British and, probably continental legal principles.