bluuebunny/crossref_metadata_2025 huggingface dataset:
Non-Intervention and Judicial Paternalism
Authors: Bainham Andrew
Published: November 2023

Lord Donaldson of Lymington M.R. (as he then was) recently observed that “good parenting involves giving minors as much rope as they can handle without an unacceptable nsk that they will hang themselves. “1 His remarks accord with the modern recognition of children’s rights and with the reformulation of the parental position as one of responsibility rather than rights. This reorientation of the law owes much to the House of Lords’ decision in the Gillick case. It has more recently found expression in many of the provisions of the Children Act 1989 as well as in international conventions, most notably t
Private Law Aspects of Parents’ and Children’s Rights in Scotland
Authors: Thomson J M
Published: November 2023

This paper concentrates on those parental rights and children’s rights which have traditionally been categorised as issues of private law. In the last ten years or so, the Scots law in this area has been radically changed by legislation and further reform is anticipated: in addition, there has been a deluge of case law on the subject. This paper will attempt to summarise the most important of these developments. The paper is written from the standpoint of Scots law-the system with which I am most familiar and of which I have some knowledge. I hope this will be of interest to participants who do not have a Scottish legal background. However, I have tried to raise some fundamental issues of policy which must be addressed on both sides of the border. Moreover, in its Report on Family Law. The Scottish Law Commission has clearly been influenced by the Children Act 1989. As we shall see, the present writer has serious reservations in relation to some of these proposals: I therefore look forward to hearing from participants on how the Children Act 1989 is working in practice and whether my reservations have in fact any substance.
The European Internal Market and International Trade
Authors: Eeckhout Piet
Published: November 2023

This is a detailed and thoroughly-researched account of the legal aspects of international trade with the EC in the context of the completion of the internal market in the EC. It is a subject of immense practical importance in a world economy in which international trade, particularly in financial services, transport, intellectual property, and telecommunications, plays an ever increasing part. This book examines the laws affecting all these sectors offering a detailed treatment of those areas most frequently encountered in practice. As such it will be invaluable to all practitioners and specialists involved in EC and International trade law.
Financial Services and Reciprocity
Authors: Eeckhout Piet
Published: November 2023

In the sector of financial services, the aim of the internal market programme is to create a framework allowing financial products to circulate freely within the Community . The technique employed to achieve this is derived from the Community’s experience with liberalizing trade in goods between the Member States. It is based on the well-known principle of mutual recognition, implying that a Member State has to recognize, at least to some extent, the way in which other Member States regulate the production and putting on the market of products, as being equivalent to its own system of regulation. This leaves only those parts of the regulatory system which are essential for safeguarding certain ‘mandatory requirements’, such as consumer, environmental, and public health protection, to be harmonized at Community level.2 Such an approach is quite new with respect to services, and the financial sector clearly spearheads the efforts aimed at transposing this technique to services trade.
Making Rules Work
Authors: Baldwin Robert
Published: November 2023

Making rules work involves more than producing rules that are conducive to compliance. If the rules are not designed properly then even perfect enforcement and compliance with the terms of the rules may not lead to the results that are desired by legislators or those regulating in the public interest (e.g. safe factories, clean rivers). Misformulation may mean that the wrong standards of performance are induced. The wrong kinds of behavior may be targeted by misformulated rules so that either socially valuable activity is deterred or mischiefs that ought to be caught by the rules may escape them. Some rules may even be sidestepped and avoided without being broken. Effective rule-use demands both that compliance is produced and that compliance is linked to desired results.
The Discretion of the Prosecutor: An Introduction
Authors: Fionda Julia
Published: November 2023

Within any given criminal justice system, the prosecutor holds a number of multifarious and varied duties ranging from reviewing police files, and making dispositional decisions in respect of each case, through to conducting the case for the Crown or the State at trial. How each duty is carried out at any one time mayfeflect current criminal justice policy, or, indeed, determine it. Such is the unique, central, and pivotal position of the prosecutor in the structure of the criminal justice process that practice at that stage can have wide-reaching, reverberating effects on the decision-making practice of all other agencies throughout the process, both at the initial stages (that is, the police) and at the ‘back door’ of the system (that is, the courts, the probation service, and the prison service). Paul Rock has ex pressed these influences thus: ‘Independent interdependence is the weak force that binds the criminal justice system together’,1 and indeed, it is this interdependence which has elevated the central player in most (though not all) systems, the prosecutor, to such a position of importance in setting the boundaries of a coherent criminal justice policy, while upholding and respecting the hallowed independence of each agency.
The Dutch Openbaar Ministerie: The Kingpin Sentencers
Authors: Fionda Julia
Published: November 2023

Prosecutors in the Netherlands have always been recognized as import ant players in the field of criminal justice. Their influence is wide and their powers extensive in the determination of the penalty imposed upon an offender in any particular case; indeed, such is the effect of prosecution policy on other branches of the criminal justice system that Jan van Dijk was inspired to describe the prosecution service, Openbaar Ministerie, as the ‘spider in the web’ of the criminal process. Further, albeit within a smaller, more close-knit system than other European prosecution systems,1 Dutch prosecutors can, and do, have a much more clearly defined and open influence on the sentencing policy of judges.
Conclusion: Recognition and Reform of the Prosecutor’s Sentencing Role
Authors: Fionda Julia
Published: November 2023

The prosecutor’s direct and indirect roles in the sentencing process are undoubtedly expanding in each of the three mainland European jurisdic tions studied. However, the pace and direction in which these roles are developing in each country varies quite considerably, and is in proportion with the acknowledgement given to this role of the prosecutor. The degree to which the prosecutor’s sentencing role has progressed requires compar ison with each of those other jurisdictions, as well as with England and Wales. The rate at which these changes are occurring depends on the momentum for reform within each prosecution service and on the willing ness of other branches of each criminal justice system to respond to change. A highway analogy can usefully be employed to illustrate the speed and direction of developments in these jurisdictions.
Transnational Tort Litigation: An Overview
Authors: McLachlan Campbell
Published: November 2023

Neither the flow of commerce nor the incidence of potentially actionable harms confine themselves in orderly fashion within the arbitrary boundaries of states. National courts—created principally to regulate conduct within state borders—cannot apply parochial rules in seeking to resolve disputes which spill over those borders, nor are they usually content to do so. Determining the equities between the litigants takes precedence. A blinkered domesticity cannot see the courts fail to respond to transnational problems. The Chernobyl nuclear disaster stands as a graphic reminder (if one is needed) of the irrelevance of national boundaries in the context of transnational harms.
The Common Law Approach
Authors: Nygh Peter
Published: November 2023

The purpose of this chapter is to explain the theoretical basis upon which jurisdiction in personam rests in common law jurisdictions. In the course of the discussion, a distinction should be drawn between the Anglo-Commonwealth jurisdictions where, until recently, the law was strongly influenced by English precedent and authority, and the United States where the law, starting from a common base, developed along somewhat different lines. The latter will be described by Professor F. K. Juenger in his addendum in Chapter 3. It must also be remembered that the principles embodied in the Brussels Convention on Jurisdiction and Judgments in Civil and Commercial Matters 1968 and the parallel Lugano Convention 1988 have had a profound effect on the law relating to jurisdiction as between the United Kingdom and other contracting states, as well as between the constituent parts of the United Kingdom itself.
An Addendum on the United States Approach
Authors: Juenger Friedrich K
Published: November 2023

In spite of its dubious historical background US courts early on adopted the common law idea that service of process within the forum state confers judicial jurisdiction upon the defendant. Though he was cognizant of the rather more rational continental-European principles, Joseph Story preferred the common law approach, which he believed to be rooted in international law.
The Civil Law Approach
Authors: Walter Gerhard , Dalsgaard Rikke
Published: November 2023

In civil law systems jurisdiction is founded on statute. The statutory jurisdiction grounds are based on the existence of particular connections between the litigation and the forum. The mere physical presence of the defendant in the forum is not regarded as a sufficiently connecting factor. Under German and Danish national rules for example proceedings are commenced by service of process.
Defamation
Authors: Carter P B
Published: November 2023

The problem of jurisdiction to entertain actions for defamation could, albeit superficially, be seen as essentially no more than an example of the wider problem of jurisdiction to entertain actions in tort. Moreover, this latter could, in its turn, to some extent be seen as itself being but an aspect of the general problem of jurisdiction in any civil litigation. A concern of private international law in this area is the nature of, and the resolution of, the constituents of this hierarchy of jurisdictional problems in cases arising out of fact situations containing one or more significant foreign elements.
Securities
Authors: Houtte Hans van
Published: November 2023

In many legal systems regulations oblige companies to give adequate and correct information about take-over bids or about the issuing of new shares and they allow the authorities to sanction misrepresentation. However, take-over bid operations seldom concern only parties located in the same country. Very often the bidding company is a foreign company which intends to introduce itself into the domestic market by acquiring a local business. Moreover, shareholders who are invited to sell their shares to the bidding company, are often established outside the country where the company which is to be taken over (the target company) is located.
The Media and the Law
Authors: Neill Sir Brian
Published: November 2023

Before I begin I would like to say a word or two in tribute to Lord Goodman in whose name this series of lectures has been instituted.

Ever since the end of the War he has stood like a rock in the realm of public affairs. His help has been sought on countless occasions and on a great diversity of subjects by those who wanted guidance from a man of independent judgement with a mind of the highest quality. His advice has been wise, it has been clear and it has been delivered with refreshing vigour.
The European Content Requirement in the EC Television Directive-Five Years After
Authors: Witte Bruno De
Published: November 2023

The European Community Directive on ‘Television Without Frontiers’, adopted in October 1989,1 orders the EC Member States, among many other things, to ‘ensure where practicable and by appropriate means, that broadcasters reserve for European works

... a majority proportion of their transmission time, excluding the time appointed to news, sports events, games, advertising, and teletext services’. That provision, contained in Article 4 of the Directive, is often described as the ‘European quota rule’. It was among the most controversial when the Directive was adopted, and has remained so ever since.
The role of the Broadcasting Complaints Commission: Current Practice and Future Prospects
Authors: gibbons Thomas
Published: November 2023

The work of the Broadcasting Complaints Commission (BCC) is approaching a turning point. Regarded as a censor by the broadcasters and criticized for ineffectiveness by audiences, a fundamental review of its position has taken place. The result has been the Government’s announcement that it will be merged with the Broadcasting Standards Council. Yet the Commission has never been more interventionist in its relations with broadcasters, nor as vociferous in defence of its role. This chapter looks at the work of the BCC and assesses the prospects for its future role. It will be argued that it has not taken advantage of the opportunity afforded it to develop a set of principles for adjudicating on personal complaints about broadcasting, but that its function remains important and should be developed by the new body which replaces it.
The EC Directive on Rental and Lending Rights and Rights Related to Copyright and the Implications for the United Kingdom
Authors: stones Deborah
Published: November 2023

In June 1988, the European Commission set out its plans to harmonize aspects of copyright law across the European community in a ‘Green Paper on Copyright and the Challenge of Technology’. The motivation behind the ensuing programme of harmonization was to alleviate differences within the EC which might impede the achievement and proper functioning of the internal market. Strengthening rights within the EC in relationship to rights existing outside the Community (particularly in the context of the GATT/TRIPS discussions) may also have been a motivating factor. The Rental and Lending Directive is therefore part of a wider programme undertaken by the Commission which covers the legal protection of computer programs and databases, satellite broadcasts, and cable retransmission, and the term of protection of copyright.
The Music Industry in 1994
Authors: Ware James , Zeffman David , Baker Clare , Enser John
Published: November 2023

1994 has seen pulls on the music industry from all directions. In particular, the industry’s legal framework has been shaken by indepth investigations by the Monopolies and Mergers Commission (MMC) and by the ramifications of important new EC legislation relating to copyright and other rights.
The International Covenant on Civil and Political Rights and the United Kingdom: An Introduction
Authors: Harris* David
Published: November 2023

In this introductory chapter it is intended to examine the guarantee and method of implementation of the International Covenant on Civil and Political Rights (ICCPR) and to consider certain aspects of the position of the United Kingdom as a party to it.
The United Kingdom Perspective on the International Covenant on Civil and Political Rights
Authors: Mcgoldrick Dominic , Parker* Nigel
Published: November 2023

This Chapter seeks to assess the role of the United Kingdom in relation to the ICCPR from various perspectives. It is directed to the broader dynamics of the State-International Organization relationship rather than to the implementation by the United Kingdom of the specific rights in the Covenant. An attempt is also made to put the United Kingdom’s position in relation to the Covenant in the more general context of its attitude to, and influence on, the development of international human rights promotion and protection.
Rights in the Administration of Justice
Authors: Bailey Stephen
Published: November 2023

The ‘right to a fair trial’ potentially encompasses both the civil and criminal justice systems in the United Kingdom. However, it is the administration of criminal justice that calls for particular scrutiny, for two reasons. First, provisions of the Covenant deal much more explicitly with aspects of the criminal process. This is not surprising, given the fact that decisions and acts in this sphere have a much greater potential for infringing individual liberty; the availability and use of coercive powers are much more restricted in civil matters than criminal. Secondly, the administration of criminal justice in England and Wales is widely perceived to be in crisis, this perception stemming in particular from the spate of well-publicized miscarriages of justice acknowledged in recent years. The Royal Commission on Criminal Justice (‘RCCJ’), chaired by Viscount Runciman, was appointed in June 1991 and reported in July 1993. Their view was that:
Mental Health Care
Authors: Gunn Michael
Published: November 2023

The International Covenant on Civil and Political Rights provides standards against which mental health care provision may be measured. Article 9 provides everyone with the right to liberty and security of the person. It does not contain a list of exceptions, as is, for example to be found in Article 5 of the European Convention on Human Rights (ECHR). However, Article 9(1) prohibits ‘arbitrary arrest or detention’, and requires that no one be deprived of his or her liberty unless the grounds and procedure are ‘established by law’. Article 9(2) provides a right to be given reasons for one’s arrest. Article 9(4) secures a right to challenge one’s arrest or detention by application to a court; the court shall decide without delay upon the lawfulness of the detention and order his/ her release if the detention is not lawful. Article 9(5) guarantees victims of unlawful arrest and detention an enforceable right to compensation. Article 7 outlaws ‘torture or cruel, inhuman, or degrading treatment or punishment’ and also provides that no one is to be subjected to medical or scientific experimentation without his or her free consent.
Prisoners’ Rights
Authors: Livingstone Stephen
Published: November 2023

Those in detention are perhaps most at risk of having their human rights violated. Their powerlessness, and the fact that those who have detained them regard them as a threat (whether because of criminal or political activity), renders detainees vulnerable to the most serious human rights abuses, such as torture or death. However those in detention, especially if they are there as a result of criminal activity, are often seen as the least deserving of rights, and state authorities will often claim that their need for discretion is greatest when dealing with such a dangerous section of the public. This tension, that those in detention may be the most in need yet least deserving of rights, has made explicating the content of the rights of prisoners one of the human rights lawyer’s most difficult tasks. Some human rights treaties, such as the European Convention on Human Rights (ECHR), make no specific reference to those in detention. Others, such as the International Covenant on Civil and Political Rights (ICCPR) or the American Convention on Human Rights (ACHR), do include a specific Article but, as we shall see when we come to examine Article 10 of the ICCPR, this tends to be a somewhat vague or limited provision.
Family and Child Rights
Authors: Ghandhi* Sandy
Published: November 2023

1994 has been designated by the UN as International Year of the Family. It is thus singularly appropriate that any study of the United Kingdom’s compliance with the standards imposed by the Covenant should take into account our obligations under Articles 23 and 24 of this instrument. These are the Articles which stipulate the engagements of states parties in the area commonly referred to as ‘family’ and ‘child’ law. It should be noted that the stipulations in the Covenant which relate particularly to the rights of children have been supplemented now by a specific international treaty: the UN Convention on the Rights of the Child 1989.
Rights of Political Participation
Authors: Joseph Sarah
Published: November 2023

Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in Article 2 and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; (c) To have access, on general terms of equality, to public service in his country.
Rules of General Application
Authors: Mitchell Charles
Published: November 2023

It is intended in this chapter to discuss a number of general rules which govern the award of legal subrogation. Subject to some exceptions which are described below, the distinction drawn in this book between simple and reviving subrogation is generally reflected in the procedural rules concerning the name in which a subrogated action must be brought. Thus, where S seeks to enforce previously extinguished rights acquired via reviving subrogation, he is always entitled to enforce these rights in his own name: since rights of this kind are revived by the courts for S’s benefit alone, they vest in him and he is therefore the proper party to appear on the record as the plaintiff in any action he brings to enforce them. In contrast, where S has acquired subsisting rights of action via simple subrogation, he must as a general rule pursue these rights in the name of the right-holder, RH: since rights of this kind never cease to vest in RH, they can only be enforced by RH, albeit that RH is obliged to enforce them for S’s benefit.1 The locus classicus of simple subrogation arises in the context of insurance law.2
Failure of Consideration II: Invalid Contracts
Authors: Mitchell Charles
Published: November 2023

In Chapter 10, the situation was discussed where S pays money under a valid contract with PL, this money is applied to extinguish RH’s real security over PL’s property, and PL fails to repay Sasagreed. The situation discussed in this chapter is essentially the same, with one important difference: here, Sand PL’s contract is invalid for some reason. As a result, the contractual remedies which would have been available to S in the event of PL’s default had the contract been valid are not available to him. However, he may nonetheless be able to bring a restitutionary action to recover his payment from PL. The leading case concerning the restitutionary rights of payors under invalid contracts is Sinclair v. Brougham,’ but this case must now be read in the light of the decisions by Hobhouse J and the Court of Appeal in W estdeutsche Landesbank Girozentrale v. Islington Borough Council.2 The following account will there fore discuss Sinclair v. Brougham first, and then consider the Westdeutsche case.
Volunteers
Authors: Mitchell Charles
Published: November 2023

The rule currently prevailing in English law is that where a volunteer S pays RH in respect of the obligations owed to RH by PL, PL’s obligations are not automatically discharged by S’s payment.1 In other words, RH’s rights are not extinguished unless PL subsequently ratifies S’s payment. The question which therefore falls to be considered in Section A is whether the courts should award a volunteer S simple subrogation to RH’s rights where S has paid RH, PL has not subsequently ratified S’s payment and RH’s rights are therefore not extinguished.
The Introduction of Milk Quotas
Authors: Cardwell Michael
Published: November 2023

Milk quotas were introduced on 2 April 1984 to curb the endemic structural surplus in the dairy sector of the Common Agricultural Policy. In the period from 1973 to 1981 milk deliveries had increased on an annual basis by approximately 2.5 per cent, the rate of increase accelerating to about 3.5 per cent in 1983.
The Continuing Surplus and Further Allocations
Authors: Cardwell Michael
Published: November 2023

Following the introduction of the milk quota system, production continued to outstrip demand. In large part this state of affairs may be attributed to reduced consumption: for example, during the period 1987 to 1990 it is estimated that consumption fell from 95 to 91 million tonnes, notwithstanding subsidized sales. The level of deliveries to dairies also caused concern. After a significant fall in the 1984/5 milk year, this consistently exceeded the guaranteed total quantities of Member Statcs. To combat the surplus, a series of cuts were imposed. Council Regulation (EEC) 1335/86 provided that the guaranteed total quantities for wholesale quota be permanently reduced by 3 per cenl over the 1987/8 and 1988/9 milk ycars.· As recited in the Preamble. the measure was justified by the need to strike a balance between supply and demand. Council Regulation (EEC) 1343/86 implemented a like reduction in respect of direct sales quota.
Taxation
Authors: Cardwell Michael
Published: November 2023

Just as the nature of milk quota is itself elusive. so the taxation of milk quota gives rise to few easy solutions. Nol least, tax considerations were unlikely to have been at the forefront of the legislature’s mind when implementing the milk quota system. In any event, it was not the intention of the legislature that quota should be so freely bought and sold or. indeed, acquire so transparent an economic value. Likewise, the judgments of the courts have not as a rule been directed to fiscal matters; and there may be dangers in seeking to derive guidance as to the tax treatment of quota from interpretations of the legislation delivered in other contexts - and vice versa.
Conclusion
Authors: Cardwell Michael
Published: November 2023

More than a decade having elapsed since the introduction of milk quotas, it may now be possible to hazard certain more general conclusions. Three aspects, in particular, may be addressed: the extent to which the quota system has met its stated objectives; the operation of the transfer provisions: and the adequacy of protection for tenants.
Frontiers and Policing
Authors: Anderson Malcolm , Boer Monica Den , Cullen Peter , Gilmore William , Raab Charles , Walker Neil
Published: November 2023

Effective and harmonized administration of controls at the external frontier and the abolition of internal frontier controls are essential requirements for the completion of the Single European Market (SEM). The SEM required the full implementation of the four free domsagreed in principle by the Member States by the signing of the Treaty of Rome and re-confirmed by the 1985 Single European Act—freedom of movement of persons, goods, services and capital. Inter alia this required the dismantling of customs checks on goods and police controls on persons at the internal frontiers as well as the abolition of the non-tariff barriers to trade within the EU, embedded in different health and industrial standards, professional and trades qualifications, specifications of goods and administrative procedures. Sharp differences of opinion were expressed by Member States, interest groups and individual members of the public about how much harmonization was necessary, particularly over rates of indirect taxation and Community-wide definitions of goods such as beer and ice-cream. Freedom of movement of goods within the SEM, which is less politically sensitive than freedom of movement of persons except where unfair competition or traffic in illegal goods are suspected, also depended on making the external frontier the customs collection point for all Member States, and an effective barrier to smuggling of goods. Controls at all crossing points of the external frontier should be equally effective in pre venting the entry of illegal immigrants so that, within the external frontier, there could be free movement of persons. Differences of view have already emerged about the amount of common or joint police co-operation necessitated by the new freedoms and new systems of regulation.
The Merging of Internal and External Security
Authors: Anderson Malcolm , Boer Monica Den , Cullen Peter , Gilmore William , Raab Charles , Walker Neil
Published: November 2023

The legal and organizational lines between internal and external security, between security of the individual within the state and security of the state itself, and between the police and the military have historically been drawn differently in the European countries. Under the pressure of events since 1989 radical changes have taken place and the relationship between internal and external security is being redefined. The changes since 1989 have been the subject of optimistic and pessimistic interpretations, some believing that they represent the triumph of western values and western liberal democracy, others regretting the loss of a bi-polar world in which the distribution of international power and influence between the two super-powers was more or less stable and predictable. Commentators and politicians agree, however, that the post-1989 situation has suggested new scenarios and posed new challenges: there is now a more dynamic situation with unpredictable security threats, which requires the planning of flexible responses to a variety of dangers (Van Ham 1993). The rethinking of European security has had a number of repercussions on European police co-operation. Broadly speaking, these repercussions can be classified in four groups. The first is that the pattern of criminality may change as a consequence of changing macro-politics and macro-economics in areas neigh bouring the European Union. The transfrontier aspect of criminality may expand because of developments in East Europe (see chapter 1). Secondly, the disappearance of the ‘iron curtain’ has opened up new possibilities for interaction between law enforcement agencies in East and West.
Ministers And Government Decisions
Authors: Brazier Rodney
Published: November 2023

The purpose of this Chapter is to explain the procedural framework within which ministerial and governmental decisions are taken. It begins with a brief historical survey of the system of decision-making in the Cabinet and its committees. It then looks at the general guidance which Ministers receive about methods by which issues should be decided, and then examines more specifically the situations in which Ministers are expected to make up their own minds and act within their departments without troubling Ministers outside the department. The Chapter then analyses in detail the current rules of practice governing decision-making in committees of Ministers, and within the Cabinet itself.
Communicating With Parliament
Authors: Brazier Rodney
Published: November 2023

Ministers owe to Parliament their constitutional legitimacy, which is manifested in particular through the confidence shown in them by the House of Commons. In order to retain that confidence Ministers must explain to Parliament what they are doing and why they are doing it; and in that process Ministers will hope to persuade their own supporters at least that they are doing what circumstances require. It is through such explanations that Ministers fulfill, in part, their obligation of accountability to the legislature. Accountability is not merely an abstract concept, because it is given life whenever a member of the Government is present in Parliament to promote his departmental policies and to defend his ministerial col leagues. That obligation is drawn to Ministers’ notice in the document Questions of Procedure for Ministers (QPM). Ministers are reminded there2 that they are account able to Parliament for the policies, decisions, and actions of their departments and agencies. They are enjoined to be as open as possible with Parliament (and the public), withholding information only when disclosure would not be in the public interest, which should be decided in accordance with established parliamentary convention, the law, and any relevant Government code of practice. Clearly, that notion of accountability shades into the doctrine of ministerial responsibility to Parliament, which will be considered in the next chapter.
Responsibility To Parliament
Authors: Brazier Rodney
Published: November 2023

Some of the issues to be explored in this Chapter have been examined. or touched on, already. Thus, for instance, in the chapter on conflicts of interest a number of matters which might affect the responsibility of Ministers to Parliament were high lighted, especially in relation to the consequences of the early work of the Committee on Standards of Conduct in Public Life.1 This Chapter is concerned with the details of ministerial responsibility to Parliament. Ministers’ collective responsibility-for the Government’s policies and for their ministerial colleagues and Ministers’ individual responsibility for their own actions are examined in the first section. Inevitably some breaches of the doctrine result in loss of office, but others do not, and the ways in which that fate may be avoided are looked at in the second section. Ministers are not always responsible for things that go wrong, and the recent development of new constitutional mechanisms (such as executive agencies) can blur the line back from the wrong complained of to a responsible Minister; and older constitutional notions (such as agreements to differ, and ministerial over lords) could come to be used again. Those matters are also considered in the second section. Collective responsibility implies collective secrecy: and the easing of the strains which the obligation of confidentiality imposes, through leaking and briefing, are considered in the final section.
Secured Lending in Eastern Europe
Authors: Röver Jan-Hendrik
Published: November 2023

This new work is the first comparative study of central and eastern European secured transactions laws to be written in English. It gives a valuable insight into the legal reforms taking place in the transition economies of central and eastern Europe (and elsewhere), explaining the general mechanics of secured transactions laws in a helpful and practical way. The book will explore the characteristics that make security law useful from a practical point of view, the purpose being not merely to describe existing rules on security but to concentrate on the question of how those rules can apply in practice. The author concentrates on seven central and eastern European secured transactions laws in Bulgaria, the Czech Republic, Hungary, Poland, Romania, the Russian Federation and the Slovak Republic. These laws are contrasted with the EBRD's Model Law on Secured Transactions and the EBRD's Core Principles for a Modern Secured Transactions Law. In addition, English, German and US law (which, among others, influenced the EBRD's work) are used as further reference sources.
Central and Eastern European Countries and the Reform of Secured Transactions Laws
Authors: Röver Jan-Hendrik
Published: November 2023

When the Berlin wall fell on 9 November 1989 it was only a matter of several 1.01 years before most central and eastern European countries took the decision to become so-called transition countries and to transform into western-style democracies and market economies. This development became possible due to the withdrawal of the Soviet Union under Mikhael Gorbachev’s leadership as the guardian power of other central and eastern European countries.
Legal models of secured transactions law in Western countries
Authors: Röver Jan-Hendrik
Published: November 2023

English law1 distinguishes four types of consensual security interests: the pledge, the contractual lien, the mortgage, and the equitable charge.2 The pledge is a possessory security interest which can be created in goods as well as in documentary intangibles (ie documents of title and instruments embodying a money obligation). The creditor can take physical possession but it suffices if he holds constructive possession through another person.
Central and Eastern European Secured Transactions Laws
Authors: Röver Jan-Hendrik
Published: November 2023

Bulgarian law1 provides in Article 133 of the Law on Obligations and Contracts that in principle the debtor’s ‘entire property’ shall serve as a basis for the satisfaction of the creditors’s rights. However, Articles 138 to 148 of the Law introduce the guarantee as a means of securing obligations by a personal right. In its 1950 Law on Obligations and Contracts, Bulgarian law sets out a number of traditional security rights.2 They are the traditional security rights of the civil law tradition, namely the possessory pledge of movables;3 the pledge of receivables, which requires the notification of the debtor of the pledged receivables for its enforceability against the debtor;4 and the mortgage in immovables which must be recorded with the recording office administered by the regional courts.5 The possessory pledge of movable things and the pledge of receivables are similar to the pledges found under many other civil law jurisdictions (including German law) and meet the same practical limitations in modern business
The Origins of National Consciousness
Authors: Musgrave Thomas D
Published: November 2023

The concept of self-determination originally developed throughout Europe and the United States in the eighteenth and nineteenth centuries. In essence, self-determination is understood to occur whenever a people freely determines its own political status. In Western Europe and the United States the notion of self-determination drew its inspiration primarily from Enlightenment ideas of popular sovereignty and representative government. In Central and Eastern Europe, on the other hand, the notion of self-determination was based primarily on the nineteenth-century phenomenon of nationalism. This meant that in Western Europe and the United States the concept had a political orientation which generally did not take ethnic considerations into account, whereas in Central and Eastern Europe the concept was much more strongly linked to ethnic and cultural factors.
The Action for Annulment in the EC Treaty: An Overview
Authors: Albors-Llorens Albertina
Published: November 2023

The action for annulment is regulated by Article 173 EC Treaty, which reads as follows: The Court of Justice shall review the legality of acts adopted jointly by the European Parliament and the Council, of acts of the Council, of the Commission and of the ECB, other than recommendations and opinions, and of acts of the European Parliament intended to produce legal effects vis-a-vis third parties.It shall for this purpose have jurisdiction in actions brought by a Member State, the Council or the Commission on grounds of lack of competence, infringement of an essential procedural requirement, infringement of this Treaty or of any rule of law relating to its application, or misuse of powers.
The Locus Standi of Non-Privileged Applicants to Challenge Measures in the Form of Regulations or of Directives
Authors: Albors-Llorens Albertina
Published: November 2023

This Chapter will be devoted mostly to the study of the case law of the European Court of Justice in connection with the attempts made by private parties to challenge Commission and Council regulations.1 It has already been seen2 that Article 173 EC Treaty excludes a sensucontrario any binding act other than decisions from the scope of challenge by natural and legal persons. Consequently, regulations and directives3 are, in principle, excluded. However, and with the clear intention of preventing the Euro pean institutions from escaping the likelihood of review by choosing the form of a regulation for an act which is in substance a decision, the drafters of the EC Treaty established the principle that a private applicant could bring annulment proceedings against a decision which ‘although in the form of a regulation is of direct and individual concern to the former’.4 From the wording of Article 173(2) EEC Treaty, it would seem that three cumulative hurdles need to be overcome by natural or legal persons who wish to challenge a regulation. In the first place, it has to be proved that the measure, albeit in the form of a regulation, is in substance a decision; in the second place, that the decision is of individual concern to the applicant; in the third place, that it is of direct concern.5 However, one feature of the case law in this area which could trouble any observer who wishes to find uniform criteria in the Court’s approach to the question of locus standi. This is the fact that two divergent lines seem to emerge from the case law of the Court.
The Plea of Illegality
Authors: Albors-Llorens Albertina
Published: November 2023

The plea of illegality, unlike annulment proceedings, is an indirect method of challenging Community acts. It allows a party to plead the illegality of a normative act which serves as the legal basis of a measure at issue in the main action. This judicial remedy, which is familiar to the legal system of the Member States,1 appears regulated in all three Community Treaties. Thus, Article 184 EC Treaty reads: Notwithstanding the expiry of the period laid down in the fifth paragraph of Article 173, any party may, in proceedings in which a regulation adopted jointly by the European Parliament and the Council or a regulation of the Council, of the Commission or of the ECB is at issue, plead the grounds specified in the second paragraph of Article 173 in order to invoke before the Court of Justice the inapplicability of that regulation.3 Within the framework of the ECSC Treaty, Article 36(3) allows private parties to invoke the plea of illegality only in the course of an appeal against pecuniary sanctions or periodic penalty payments.
The Action for Damages
Authors: Albors-Llorens Albertina
Published: November 2023

The system of judicial protection provided for by the Community Treaties would not be complete if there was no action aimed at obtaining compensation for loss caused by acts of the Community institutions. The determination of the non-contractual liability of the European Community is one of the competences attributed to the European Court of Justice, in addition to its other heads of jurisdiction. This remedy is regulated by Articles 178, 215(2), and 215(3) EC Treaty which read: The Court of Justice shall have jurisdiction in disputes relating to compensation for damage provided for in the second paragraph of Article 215 [Article 178].
Conclusions and Recommendations
Authors: Albors-Llorens Albertina
Published: November 2023

This work set out to study the rights of private parties seeking to obtain a review of the legality of Community acts. Given that the Community law making process is not yet entirely driven by democratic principles, it appeared to be of the utmost importance to ensure that private parties could obtain a review of the legality of Community acts that are harmful to their interests. Accordingly, the European Community Treaties provided for a system of judicial review open to private parties. In this system, the action for annulment occupies a central position, although there are other means by which a consideration of the legality of a Community act may be undertaken.
Comparative Financial Law: a Classification of the World’s Jurisdictions
Authors: Wood Philip R
Published: November 2023

This essay proposes a set of criteria for classifying the financial law of the world’s jurisdictions. The main fields of international finance are banking and capital markets. The field covers loans (especially syndicated loans and project finance), bond issues, trade finance, financial trading, e.g. in foreign exchange and derivatives, payments systems, custodianship of securities by financial institutions, security, and title finance. A self-imposed limit is that the chosen field does not cover corporate issues of equity shares. Nor does it cover ordinary commercial law-sale, transportation, construction, agency, employment, intellectual property and the like, although all of those often impinge on international financial transactions. Consumer law is outside our scope.
Linked Contracts
Authors: Hellner Jan
Published: November 2023

The expression ‘linked contracts’ is probably unfamiliar to most lawyers. As far as I know it is not common in any legal system, except possibly for certain branches. Nor does the expression refer to any special legal rule or concept. The object of this study is to draw attention to a number of factual situations that have distinct features in common but are treated by different legal rules. The situations are often well-known, although their similarities are rarely analyzed. In English law, such situations create problems under traditional principles of privity of contract and of consideration, which become apparent when ‘contracts for the benefit of third parties’ are contemplated. There is a Green Paper of the Law Commission that deals with this subject and raises some of the problems that are discussed here, al though they are there seen from another angle.
Breach of Contract and Recoverable Losses
Authors: Ramberg Jan
Published: November 2023

Few matters are so intriguing and difficult as the determination of compensation for losses incurred as a result of breach of contract. The main principle that the party affected by the breach should be put in the same financial situation as he would have been except for the breach would usually be accepted. But it is one thing to state an abstract principle and quite another matter to implement that principle in practice. It is difficult enough to determine hypothetically what the situation actually would have been if the contract had been duly performed.
When is an Agent’s Authority Irrevocable?
Authors: Reynolds Francis
Published: November 2023

It is a standard proposition in the law of agency that the principal may revoke the agent’s authority at any time, even if he promised for consideration or even by deed that the authority was to be irrevocable or would not be revoked, whether for a specified period or without limit of time. The reasoning is that the principal is conferring on the agent the power to commit him: the power is such a strong one that the principal must be free to call it back. It may of course be a breach of contract to do so. If so the principal will be liable in damages. But the equitable remedy of specific performance is not normally available in favour of the principal nor of the agent: personal services are involved to which it would not normally be applicable. This would, at least normally, also bar an injunction against revocation. In Hohfeldian terms the principal has the power to revoke but may not have the liberty to exercise the power: to do so may be a breach of contract. The revocation is nevertheless effective. As regards pure agency law these propositions must be correct.
‘Banking Law’ in the Twenty-First Century
Authors: Norton Joseph J
Published: November 2023

Of Professor Roy Goode’s numerous and significant contributions to the Academy, the one that most probably will shine the brightest and widest will be his audacious establishment of the Centre for Commercial Law Studies (CCLS) at the University of London. The primary objectives of the CCLS were and are (i) to promote, through advanced teaching, research and research seminars/conferences, the systematic study of national, European, and international ‘commercial law’ in a broad and interconnected context, and (ii) to develop an institutional base of interdisciplinary knowledge and know-how that could be placed at the service of government, the legal profession, industry, and commerce.