bluuebunny/crossref_metadata_2025 huggingface dataset:
The Aminoil Arbitration
Authors: Mann F A
Published: October 2023

Shortly before his death the late Sir Gerald Fitzmaurice wrote to the present writer that he had just finished an arbitration which led to a ‘remarkable’ award, and that he hoped at an early date to have a discussion about it. Unfortunately, his untimely death rendered such a discussion impossible. In the absence of the advice or at least the comments of a dear and greatly respected friend the present writer must try to unravel the intricacies of this clearly ‘remarkable’, but also difficult and far from compellingly reasoned award in the case of the State of Kuwait v. The American Independent Oil Company (Aminoil). It was rendered by Professor Paul Reuter as President, Professor Hamed Sultan appointed by Kuwait and Sir Gerald appointed by Aminoil.
Uniform Statutes in English Law
Authors: Mann F A
Published: October 2023

Uniform statutes are provisions enacted or authorized by Parliament and derived from treaties or similar arrangements which a group of nations agree to incorporate into their respective legal systems with a view to unifying legal rules in a particular field. Even though, as a matter of form, the legislative act itself is, in constitutional law, usually the direct and, indeed, the only source of municipal enforceability, the fact that uniform statutes are the ultimate product of a treaty constitutes their special characteristic. That fact has numerous consequences which it is proposed to examine: Is the interpretation of uniform statutes subject to peculiar rules? In particular, is it possible and perhaps even necessary by some process of interpretation to fill gao in the uniform text? Do uniform statutes really succeed in unifying the law? If not or not entirely, how are divergences to be overcome or, in other words, what is the relationship between uniform laws and the conflict of laws? Is the idea and object of unification of law a head of public policy and, if so, does it eliminate conflict rules and does it perhaps even have a bearing upon rules of jurisdiction?
The State Immunity Act 1978
Authors: Mann F A
Published: October 2023

On 22 November 1978 the State Immunity Act 1978 came into force. Its purpose, according to its long title, is ‘to make new provision with respect to proceedings in the United Kingdom by or against other States; to provide for the effect of judgments given against the United Kingdom in the courts of States parties to the European Convention on State Immunity; to make new provision with respect to the immunities and privileges of heads of State; and for connected purposes’.

As the Act makes ‘new provision’, it is a remedial statute. It initiates a new era in the field of sovereign immunity in English law, an era which will throw up problems of a new and different kind that have to be solved by way of statutory interpretation.
Preliminary Considerations
Authors: Vasciannie S C
Published: October 2023

In general, the countries which became members of the Group of Land Locked and Geographically Disadvantaged States at the UNCLOS III represented a broad cross-section of political and economic interests in the international community. Membership ranged from the developed, industrialized economies of Switzerland and Austria to Mali and Nepal, which are universally acknowledged to be amongst the least developed countries in the world.1 At the same time, States such as the Federal Republic of Germany and the German Democratic Republic were able to subordinate their differences of ideological orientation in order to reach uniform positions under the auspices of the Group. As the Group derived its raison d’etre from geographical considerations, this situation was not entirely curious; however, precisely because of its diverse membership, the Group was never able to treat its unity as a matter of course.
The Question of Access to the Non-Living Resources of the Continental Shelf for Land-Locked and Geographically Disadvantaged States
Authors: Vasciannie S C
Published: October 2023

At the UNCLOS III, land-locked and geographically disadvantaged States advanced several claims concerning the resources of the continental shelf. These claims were largely unsuccessful for a variety of legal and political reasons. This chapter seeks primarily to outline the LLGDS claims and to show why coastal States were able to maintain a united front in resistance to the LLGDS efforts.
The Theory of the British Constitution
Authors: Allott Philip
Published: October 2023

Rivalled only by the constitutions of the Church of Rome, of China, and of France, the British constitution is the most interesting example of a constitution available for contemporaneous study. With fourteen centuries of continuous and well-documented development, it is a unique living specimen of the long-term self-socializing of the human species. Study of the British constitution is a less proud tradition. Cloudy and confused since the earliest days, the constitutional self-awareness of the British people has been distorted over the last two centuries by a series of developments whose significance goes far beyond the problems of the British constitution.
The Relevance of International Law to Israeli and Palestinian Rights in the West Bank and Gaza
Authors: Weston Richard A Falk ,Burns H
Published: October 2023

When demonstrations against Israel’s occupation of the West Bank and Gaza erupted in Gaza in December 1987 and shortly thereafter spread to the West Bank, few perceived that what was in the making was a resistance quite unlike the sporadic ‘riots’ that had aggravated Israeli-Palestinian relations since the Six Day War and the beginning of the occupation in 1967. By late February 1988, however, even the Israeli General Staff had adopted the Arabic word intifada,1 the term preferred by the Palestinians themselves to define what was happening.2
The Administration of Occupied Territory in International Law
Authors: Greenwood Christopher
Published: October 2023

The purpose of this paper is to examine the principles of international law applicable to the administration of occupied territory. In the course of this inquiry, an attempt will be made to answer the following questions: Does international law specify the administrative structure which must prevail in occupied territory? To what extent is the occupying power free to depart from the administrative structure which existed in the territory prior to the occupation? In particular, may the occupying power create different geographical units of administration?
Financial Administration of the Israeli-Occupied West Bank
Authors: Jabr Hisham
Published: October 2023

Although the Israeli occupation of the West Bank and Gaza has now continued for over twenty years, the financial administration of these territories by the Israeli military authorities and its implications for the development of the region have received scant attention. The purpose of this paper is therefore to give an overview of financial aspects of the administration of the West Bank under Israeli occupation. I will focus especially on budgetary aspects, on sources of revenue and on expenditure, in an attempt to evaluate services rendered to the inhabitants of the West Bank as compared with taxes, customs, excise, fines, and other fees paid by them to the occupying authority. The legal issues regarding the levying of such taxes and other payments are also discussed. Comparison is made also with practices under Jordanian rule and with the taxation system in the Israeli settlements, illegally implanted in the Occupied Territories.
Judicial Discretion and Criminal Litigation
Authors: Pattenden Rosemary
Published: October 2023

This book is about the discretions exercised by criminal trial courts both at Crown Court and Magistrates' Court level and about discretion in the criminal appellate process. The aim is twofold. First, to provide a theoretical framework within which to discuss and assess the discretions. This entails defining discretion, outlining the reasons for the existence of discretion and considering the means by which discretion may be controlled. Secondly, to examine the evidential and procedural discretions whose existence is recorded in cases, statutes, and the reports of law bodies, and to list the known principles by which these discretions should be exercised. The text concentrates on the law and practice in England and Wales but the footnotes include extensive references to the decisions and statutes of Australia, Canada and New Zealand. The last chapter of the book examines the way in which an exercise of discretion by a trial court, the Court of Appeal, or the Divisional Court of the Queen's Bench Division may be challenged and demonstrates that whatever the position may have been at the turn of the century few erroneous exercises of discretion are now inviolable.
P
Authors: Toth A G
Published: October 2023

Patent See Intellectual Property Rights PUBLIC HEALTH One of the grounds on which the Member States may derogate from certain provisions of Community law (other, closely related grounds for derogations include public policy and public security). Thus, under Art. 96(1) Euratom, the Member States may impose limitations, on grounds of public policy, public security, or public health, on the right of nationals of other Member States to take skilled employment in the field of nuclear energy (a similar derogation existed under Art. 69(1) ECSC on grounds of public policy and health). According to Art.
Introduction: Existence
Authors: Thornberry Patrick
Published: October 2023

In any consideration of the rights of minorities under contemporary international law, the right of existence must be a necessary prerequisite for other rights. ‘Existence’ is a notion which has a special sense for a collectivity. An individual ‘exists’ or he does not; his non-existence is individual death. A collectivity such as a minority group exists in the individual lives of its members; the physical death of some members does not destroy the ‘existence’ of the group, though it may impair its health. There is, however, another existence for a minority through the shared consciousness of its members, manifested perhaps through language, culture, or religion, a shared sense of history, a common destiny. Without this ‘existence’ it is possible to say that individuals live but the group does not: it has been replaced by something other than itself, perhaps a new group, larger or smaller.
Does the Prohibition of Genocide Bind All States?
Authors: Thornberry Patrick
Published: October 2023

In view of the limited participation by States in the Genocide Convention, the question of its relationship to customary international law retains considerable significance for many minority groups. Those States which are not parties are quite as ethnically heterogeneous as the States Parties and do not present themselves as a group of particular, outstanding political stability. Their minorities are exposed to the same physical and cultural.
The United Nations Charter: Provisions on Non-Discrimination
Authors: Thornberry Patrick
Published: October 2023

The United Nations Charter set the pattern for development of the principle of non-discrimination. The Preamble refers to the determination of the peoples of the United Nations ‘to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women.. .’. Article 1(3) on the Purposes of the United Nations includes among them the promotion and encouragement of respect for human rights and fundamental freedoms for all ‘without distinction as to race, sex, language, or religion’. The latter phrase, coupled with references to human rights, is repeated in Article 13 on the functions of the General Assembly in assisting the realization of human rights; in Article 55 on international economic and social cooperation; and in Article 76 on the objectives of the trusteeship system. The achievement of human rights on a non-discriminatory basis is one of the principal aims of the United Nations Organization as the multiple references demonstrate.
Interpretation of Treaty Articles in the Proceedings of the Committee on the Elimination of Racial Discrimination
Authors: Thornberry Patrick
Published: October 2023

The Convention on the Elimination of All Forms of Racial Discrimination is concerned with racial groups in general and not specifically with minorities. None the less, minorities are the natural victims of racial discrimination in most States, and have been frequently discussed in the reporting procedure under the Convention. The reporting procedure by which the State describes the progress made in its legislation and administration is perhaps better adapted to securing an overview of group problems than the more sharply focused individual complaints procedures, and thus to emphasize the collective aspects of discrimination as they affect minorities. The Committee has filled out some of the implications of the Convention as matters of general interpretation and contributed to a better understanding of its virtues and limitations as a legal text to support the interests of minority groups.
Contemporary International Law
Authors: Thornberry Patrick
Published: October 2023

There is a measure of truth in Sieghart’s remark that ‘all human rights exist for the protection of minorities’. ‘ Minorities’ in this sense includes many groups besides ethnic, religious, and linguistic groups; human rights in general exist for the weak, the vulnerable, the dispossessed, the inarticulate. The strong have little need of human rights, at least in a democracy commit ted to majority rule, though, strictly speaking, in the letter of the international instruments encoding human rights, they are also beneficiaries: the premiss of these instruments is a universal premiss.
Hurley’s Case and the Doctrinal Basis for Human Rights Jurisprudence in South Africa
Authors: Ellmann Stephen
Published: October 2023

South African courts cannot test the substantive constitutionality of the Internal Security Act or the Public Safety Act or any other legislation passed by Parliament. Yet they are not powerless in the face of state instrusions into human rights, even when the state’s defence of its actions rests on invoking one of the congeries of statutory provisions that authorize such intrusions. In fact South African law provides the courts with a range of grounds on which to limit such intrusions, even while acknowledging the principles of parliamentary supremacy. The most fundamental of these grounds is the power of statutory interpretation. Even a supreme parliament’s laws must be applied in the courts, and to apply them the courts must interpret them. In this chapter I will look closely at the rules of statutory interpretation which the courts employ.
Title Registration Achieved
Authors: Anderson J Stuart
Published: October 2023

With the 1853 Report, as it happened, deeds registration was doomed. Even Lord Cranworth acknowledged as much in due course. Its theory was good, he thought, but its consequences for small transactions were unacceptable. For a good long time any brave reformer raising the issue would be met with derision. It had turned out to have only a specialist appeal, offering experts an improved mechanism for assessing complex titles at the probable cost of imposing additional expenses on ordinary practitioners in run of the mill transactions. Title registration claimed immunity from this defect; it would bring benefits across the board. Yet its principle was still far from being accepted either in Parliament or outside. The Report of the 1853 Select Committee and the backing of the subsequent Commission was only a beginning. Title registration was still an untested idea based on a priori assumptions about the way in which land transactions worked. Whether facts would form a more obliging fit than they had done for deeds registration remained to be seen.
Perfecting a Private Market
Authors: Anderson J Stuart
Published: October 2023

This chapter bridges the concerns of Part I and those to follow in Part II. For lawyers its focus is the legislation of the early 1880s, the Settled Land Act and the Conveyancing Acts, statutes which contemporary conveyancers saw as a new dawn. After them things were never the same again: the old world derided by Brougham had finally passed. But solicitors who believed that the bright new day would bring peace would be disappointed: the dawn was false. A plateau had been reached, not the summit. Looking back we can see that until the 1870s politicians had had to be persuaded by the law reformers that their concerns with technical questions of land law were worth taking up. And looking ahead we see that by the mid-1880s the position was reversed: political parties had identified land transfer as an urgent problem, with lawyers and their institutions serving the subsidiary role of promoting and negotiating a solution. The signs were already there. Dispute brewed over settlement of land, the use of entailed estates, and the related question of intestate primogeniture.
International Human Rights and Private Bodies: Two Approaches
Authors: Clapham Andrew
Published: October 2023

Part II deals primarily with the case-law of international or ‘supranational’ organs: the European Commission of Human Rights (Strasbourg), the European Court of Human Rights (Strasbourg), and the European Court of Justice of the European Communities in Luxembourg. This part also contains a brief excursus through the case-law of the Supreme Court of the United States and the Supreme Court of Canada. The approach of these last two courts is interesting for present purposes due to the influence of the Common Law dimension as well as the presence of similar centripetal tensions to those found at the supranational level in Europe.
Limits to the Application of Human Rights in the Private Sphere
Authors: Clapham Andrew
Published: October 2023

The main conclusion of the last chapter was that there should be protection from all violations of human rights, and not only when the violator can be directly identified as an agent of the State. It was suggested that, in the case of the European Convention on Human Rights, this could be legally justified by a dynamic interpretation which considered the general evolution of international law, and in particular the international law of human rights.
Theories and Conceptions
Authors: Waluchow W J
Published: October 2023

In Law’s Empire Dworkin introduces an important distinction between what he calls the ‘grounds’ and the ‘force’ of law. The former primarily interest Dworkin in Law’s Empire and concern the ‘circumstances in which particular propositions of law should be taken to be sound or true’.1 Propositions of law, we are told, are ‘all the various statements and claims people make about what the law allows or prohibits or entitles them to have’. 2 That Canadians owing income tax to the federal government must file their returns before 30 April or face a late penalty is presumably an example of a proposition of law. That no person may profit from his own legal wrongdoing is another proposition of (common-law) jurisdictions. That Ontario residents may file for divorce following one year’s separation is another still. All these propositions of law report the current state of the law in the relevant jurisdiction. They describe, or in some other way make reference to, existing legal rights, duties, powers, liabilities and so on. On Dworkin’s account, the legal duties cited in, or entailed by, propositions of law should normally be respected by citizens, and their violation normally licenses state coercion. It justifies a judge in holding the offender liable.
Charter Challenges
Authors: Waluchow W J
Published: October 2023

In the preceding chapter I argued that inclusive positivism, which acknowledges the conceptual possibility of legally recognized or pedigreed moral tests for the validity and content of law is at the very least on a par theoretically with exclusive positivism which denies this possibility. At various stages in the argument reference was made to challenges to legal validity made under documents like the Canadian Charter of Rights and Freedoms. It was suggested that these charter challenges seem typically to involve substantive moral arguments purporting to undermine legal validity. I sugested that it is mistaken to view such challenges as anything but attempts to demonstrate either that pedigreed criteria for legal validity have not been satisfied, and that what seems to be valid law is in fact no law at all, or that a law must be understood or interpreted in such a way that it does not infringe upon a pedigreed moral right protected by the Charter. In the former instance, morality figures in arguments purporting to challenge the existence of valid law. In the latter case, it figures in arguments intended to establish the content of valid law, the law contained within the instruments (for example, the statutes or precedents) employed for its expression. If this view of charter challenges is correct, then it follows that the existence and content of law does sometimes depend on moral factors.
Hercules
Authors: Waluchow W J
Published: October 2023

For our purposes, the distinguishing feature of inclusive positivism is the claim that moral considerations can, but need not, figure properly in determinations of law, i.e., attempts to determine the existence or content of valid laws. Since moral considerations do seem to figure in this way, we have good reason to think that inclusive positivism is a better descriptive-explanatory theory of law than exclusive positivism. But an important question arises at this point. Perhaps the appropriate conclusion to be drawn from our previous discoveries is not that inclusive positivism is the better theory, but that legal positivism is obviously inadequate because that theory is identical with exclusive positivism and the latter necessarily precludes political morality from the possible grounds of law. In other words, the appropriate conclusion may not be that we have reason to adopt a version of positivism, i.e. inclusive positivism, which provides conceptual space for morality in determinations of law, but that positivism must be abandoned altogether because it necessarily excludes morality from the possible grounds for valid law, and morality does sometimes seem to figure in this way.
Discretion and Legal Theory
Authors: Waluchow W J
Published: October 2023

In the last chapter we examined three arguments, each purporting to show that positivism is inconsistent with a rule of recognition containing moral tests for valid law, and that inclusive positivism is therefore incoherent. The Validity Argument was shown to be unsound on the ground that weight and validity are logically compatible properties. The Pedigree Argument was seen to fail because the moral tests for law sanctioned by inclusive positivism are only contingent features of some possible legal systems. The Argument From Function was discredited on a number of grounds, the primary one being that it seriously exaggerates the positivist’s concern for certainty and finality in the law, casting his views concerning how law sometimes serves these values into a form he would reject, namely, a normative theory of law. In this chapter we consider two further arguments which might be offered to show that positivism is inconsistent with moral tests for law, and that inclusive positivism is therefore internally inconsistent. Both arguments appeal to the idea of discretion, a notion which was extremely important in Dworkin’s early assault upon positivism. The first argument runs as follows.
Recruitment
Authors: Amerasinghe C F
Published: October 2023

The Applicant seeks rescission of the original decision of the Bank not to employ her in a permanent position. Such rescission is unnecessary because she has already been given a permanent position. (Arellano, Decision No. 98 [1990], para. 43)
Benefits
Authors: Amerasinghe C F
Published: October 2023

Despite not being required by Rule 7.01, the Bank subsequently decided to offer six months compensation to staff in the Applicant’s situation. Those were the conditions offered to the Applicant by close of business on September 30 and he accepted the offer, signing the Separation Agreement in October 1987. There was no duress in the mutual separation agreement, because the situation in which the Applicant found himself was of his own choosing. (Pavesich, Decision No. 94 [1990], para. 51)
Exercising Party Choice
Authors: Fentiman Richard
Published: October 2023

We have seen that litigants generally have a choice whether or not to plead and prove foreign law, a choice reflecting the voluntarism of the English approach to civil procedure and choice of law. Indeed, the principle of party choice, whatever its merits, whatever its scope, powerfully shapes the process of international litigation. It raises an important strategic issue for litigants which is lacking where the introduction of foreign law is invariably required. And it accounts for the large, unassessable, number of English cases with a foreign element in which foreign law goes unpleaded.
Proof by Experts
Authors: Fentiman Richard
Published: October 2023

Foreign laws are facts in English doctrine, albeit that their legal character makes them different from other facts. Being facts, they remain unknown to a court unless pleaded and proved. And, being facts, courts generally lack judicial notice of their content, which they consequently cannot estab lish by independent research. Exceptionally, courts take judicial notice of foreign law, and sometimes the determination of foreign law requires no special expertise but falls within a court’s inherent knowledge or compe tence.3 Standardly, however, the proof of foreign law belongs to the cate gory of matters which must be established by expert evidence.
Principle, Policy, and Reform
Authors: Fentiman Richard
Published: October 2023

It remains to ask whether English law’s treatment of foreign law is justi fied. This is a matter of concern on a number of levels. The success or oth erwise of the English approach affects the expense, duration and fairness of litigation. Its deficiencies may discourage legitimate claimants from proceeding under foreign law, to their possible disadvantage; or from doing so at all, denying them access to justice; or from doing so in England, to the detriment of the market for legal services.
Two Models of Proof
Authors: Jackson John , Doran Sean
Published: October 2023

In Chapter Two we noted that the Diplock courts were introduced as part of a package of emergency measures designed to deal with political violence in Northern Ireland. These measures have been the subject of much controversy and the Diplock courts, which have ultimately been responsible for convicting those who have passed through this security system, have naturally been associated with the measures used. Attention has focused more on how these measures have affected plea rates and conviction rates than on the actual process of trial without jury. In this book we concentrate on the character and practice of this process in order to gauge what happens when the jury is taken away from the conventional trial format, but when the rules of procedure governing the trial are left intact. Before we turn to the trials themselves, however, we need to ask how the common law trial procedure is typically characterized. The epithet which best captures its essence is ‘adversarial’. A key question to be addressed therefore is whether this ‘adversariness’ is affected by the absence of the jury. But first let us examine the basic tenets of the adversarial tradition.
The Umpireal Role of the Judge
Authors: Jackson John , Doran Sean
Published: October 2023

In Chapter Three it was explained that the judge’s role in the contest model of proof is an umpireal one. This is the general, albeit not universally accepted, view of the role of the judge in the criminal trial. The judge should exhibit both authority and restraint, remain aloof yet attentive, act as umpire but never as player, to borrow terms from the ‘sporting theory of justice’ by which the adversarial tradition is frequently characterized and at times caricatured.1 Before we consider the extent to which judges adhered to this role in the Diplock and jury trials we observed, we need to delineate more precisely the limits of the judge’s sphere of permissible intervention in the course of the adversarial criminal trial.
Judicial Questioning
Authors: Jackson John , Doran Sean
Published: October 2023

In the last chapter we examined the classic ‘umpireal’ role which judges are required to adopt in adversary trials, both with and without a jury. In particular we noted how judges are given considerable scope, under the guise of the umpireal ideal of holding the ring between the parties, to interfere quite intrusively with party presentation and we drew comparisons between Diplock and jury trials. In this chapter we turn away from the umpireal role of checking the excesses of counsel and look at the way in which judges more positively affect the fact-finding process during the trial. As already stated, a good way of examining this is to look at the part played by judges in questioning witnesses.
Between the State, Law, and the Market: The Social and Professional Stakes in the Construction and Definition of a Regulatory Arena
Authors: Y Yves Dezala
Published: October 2023

As a result of the opening up of borders, the rules, institutions, and more generally the whole framework for economic activity in capitalist countries have become one of the weapons, as well as one of the stakes, in increased international competition. These legal devices are also one of the objects of an entire export-oriented-and imperialist—service industry of symbolic production, which aims to substitute the market economy for the various more or less interventionist systems of planning erected by the communist regimes, as well as the welfare states and the ‘developmental states’ (Castells 1992).
European Capitalism: Between Freedom and Social Justice
Authors: Dejong Prof. Dr. H W
Published: October 2023

Capitalism is the economic system in which firms, privately owned, produce goods and services for markets where consumers spend their incomes in accordance with their own free choices. The goal of the system is, to quote Marx (1890: 138, 149, 295), the generation of surplus value: ‘The production of surplus value, ... , is the specific end and aim, the sum and sub stance, of capitalist production’. The quotation, as given above,1 is, I think, one which deserves general acclaim, for it denotes the essential features of capitalism to bring forth goods and services valued in and by markets and to do so on a progressive basis. Capitalism--or the free market economy, if one prefers a less ideologically oriented term-is not a system which is static or stagnant, but something which grows and develops, be it with ups and downs. Its fluctuations manifest leaps forward and crises of adaptation, but always and in the long run, like the Echternach procession: two steps forward and one backwards.
Competitive and Non-Competitive Regulatory Markets: The Regulation of Packaging Waste in the EU
Authors: Paul Joel R
Published: October 2023

Opponents of the World Trade Organization, the European Union, and the North American Free Trade Agreement (NAFTA) have popularized the idea that regulatory competition will lead to a race to the bottom. According to the conventional view of regulatory competition represented by these critics, where capital, finished goods, and services are relatively mobile across national borders, regulators will be induced to lower regulatory standards to compete for scarce investment capital (Paul 1991: 70-4; Batra 1993: 215-30; Daly & Cobb 1989: 5r-61). This paradigm of the relationship between private capital and state regulators describes a regulatory market in which competing states offer infrastructure, labour, and market access to private capital subject to certain regulatory conditions or costs, and private capital is free to select the state that offers the most favourable regulatory regime.
The Search for a Unifying Principle
Authors: Lowenfeld Andreas F
Published: October 2023

It is evident that this group of essays makes no pretence to constituting a treatise, covering all the various aspects of private international law. But the effort has been to do more than merely present a collection of short stories, linked only by the annoying fact that the United States is a participant in nearly all of them. If this volume has been long (perhaps too long) on narrative and illustration, and short (perhaps too short) on doctrine, it has not been for want of a central theme. I do think that a common principle emerges from the various cases, episodes, and short stories here set out-the principle of reasonableness.
Manner of Involvement in the UK
Authors: Stapledon G P
Published: October 2023

Having now analysed the various areas of corporate affairs with which the institutions have been concerned, the purpose of this chapter is to describe in more detail the actual manner in which the institutions have monitored their portfolio companies. The institutions ‘ manner of participation can be broken down into four types, although each type possesses the same two variables. The first and second categories are ‘direct ‘ methods of monitoring, in that it is the institutions themselves that carry out the action(s). The third and fourth categories are ‘indirect ‘ methods of monitoring, in that the institutions act through proxies-either collective action vehicles such as the Institutional Shareholders ‘ Committee, or non-executive directors on portfolio companies ‘ boards. One variable is, therefore, the party that performs the monitoring actions.
Conclusion and Suggested Reforms
Authors: Stapledon G P
Published: October 2023

In the aftermath of the takeovers boom which occurred in the UK and the US during the mid-to-late 1980s, and the scandals concerning Australian entrepreneurial companies of that period, many commentators in all three countries called for a greater involvement by institutional shareholders in corporate governance. This book has explored the topic of institutional monitoring of corporate managements in the UK and Australia. The aim of the book has been twofold: to present a picture of the extent and nature of institutional monitoring in the UK and Australia, and to analyse the possibilities for institutional monitoring in the future in each country. Any study of institutional-shareholder involvement in corporate govern ance in the UK must take account of the fact that the systems of corporate ownership and governance in the UK and the US are fundamentally different from those in most other major ‘western ‘ economies. The UK and US corporate sectors are characterized by a relatively large number of quoted companies, a liquid capital market where ownership and control rights are traded frequently, and few inter-corporate equity holdings. The corporate sectors of Germany and Japan are, in contrast, characterized by a relatively small number of quoted companies, an illiquid capital market where ownership and control rights are traded infrequently, and many inter-corporate shareholdings. The UK and US systems of corporate ownership and governance are ‘outsider ‘ systems, whilst the German and Japanese systems are ‘insider ‘ systems.
Preliminary Remarks
Authors: Fawcett James J , Torremans Paul
Published: October 2023

In a case involving a foreign element the first thing that a court has to decide is whether it has jurisdiction. This refers to ‘the question of whether an English court will hear and determine an issue upon which its decision is sought’. The jurisdiction of the English courts is complicated by the fact that there are two different sets of jurisdiction rules. The first is the EC/EFTA rules, the source of which is the Brussels and Lugano Conventions. The second is the traditional English rules on jurisdiction.
The Sanctimony of Contract*
Authors: Collins Hugh
Published: October 2023

Our centenary year should be a time for a restatement of our objectives as lawyers at the LSE. How can lawyers contribute to the projects of a School of social sciences? In reconsidering those objectives in this inaugural lecture, it is worth reflecting on how the four previous holders of this Chair in English Law defined their respective contributions. They were important pioneers in our distinctive endeavours in legal education and scholarship. Building on their work, we have the exciting opportunity to delineate a new agenda for legal scholarship.
Crime and Politics: Spot the Difference*
Authors: Cohen Stanley
Published: October 2023

This essay is about the relationships between crime and politics. It also includes a slightly self-indulgent sub-text: a glance at what happened to some ideas from the ‘new criminology’ movement which so involved many of us thirty years ago.
Autonomy and the Rule of Law*
Authors: Sedley Mr Justice
Published: October 2023

We are by now well past the era when law could be perceived and taught as a self-sufficient and self-referential et of rules, elucidated where necessary by textual scrutiny and judicial precedent and applied to facts ascertained by a judge with an aquiline eye, sharpened to the point of infallibility by years of experience at the Bar, for falsehood and prevarication, or by a jury of English yeomen with much the same virtues. Such an account of autonomy required a range of unspoken assumptions, most of them lying beyond my present topic, about the nature not only of law but of adjudication. I mention them in order to draw the contrast with what I want to consider: the need for a society which acknowledges the rule of law to have an independent legal system, and the need in a democracy for such a legal system to be responsive to social concerns without being driven by them.
Introduction and Overview
Authors: Jackson John H , Sykes Alan O
Published: October 2023

The treaty creating the World Trade Organization is perhaps the most important development in international economic law since the Bretton Woods Agreement. The broad scope of the WTO Agreements, from trade in goods to trade in services to intellectual property to investment, along with the newly created Dispute Settlement System to administer them, has the potential to transform international economic relations in many ways. But the extent of this transformation will rest chiefly on the faithful implementation of new international legal obligations in the domestic law of each member country, and on the ability of WTO members to pursue further fruitful negotiations on a range of issues. This book is the culmination of a two-year project to examine this task of negotiating the Uruguay Round Agreements and implementing these historic accords in national Jaw.
The Operative Closure of the Legal System
Authors: Luhmann Niklas
Published: October 2023

The topic of this chapter proceeds under the heading of the ‘positivity’ of law in legal theory and its ancillary literature. Since Bentham’s polemics on the absurd theories of reason in the common law and since the philosophical polemics on the impractical attempts to build the principles of law on the basis of transcendental theories (Feuerbach, Hugo), modem law has described itself as positive law. The remaining disputed question is: whether law in the way in which it is valid needs a further reason or ‘legitimacy’. The status of such a further reason as it relates to law internally is unclear. Of course, one can talk about a political and moral assessment of valid law. However, a legal system that acknowledges another law that does not need to be grounded in positive law, alongside positive law, provides a reason for resistance to positive law. Understandably, most refrain from such a proposition-with the exception of some extreme theories.
Five Puzzles in von Hirsch’s Theory of Punishment
Authors: Bottoms Anthony
Published: October 2023

Andrew von Hirsch’s approach to sentencing theory, developed and refined in his three distinguished books Doing Justice (1976), Past or Future Crimes (1986) and Censure and Sanctions (1993), has been immensely influential, both in the academy and-directly or indirectly-in sentencing reforms in several legal jurisdictions. I am glad to count myself among the many who have found this body of theory both exciting and largely persuasive.
Barristers, Politics, and the Failure of Civil Society in Old Regime France
Authors: Bell (Johns Hopkins University) David A
Published: October 2023

I resolved to write only on matters of the sort that belonged particularly to the philosophe or literary jurist; to lift these cases, as much as I could, to their true dignity, and when they bore on a possible reform of the laws, to examine the law itself along with the case, and to amass the materials for improved legislation … In point of fact, I was hardly a barrister except in name. Pierre-Louis de Lacretelle, Un Barreau Extérieur á la fin du XVIIIe siécle (1823).
Builders of Liberal Society: French Lawyers and Politics
Authors: Karpik Lucien
Published: October 2023

The sociology of lawyers, which has long been built on Anglo-Saxon reality, or rather on a particular representation of this reality, has conceived the profession as a community whose organization and privileges revolved around service relations or as an economic agent seeking to control the market while remaining aloof from politics. The last ten years, however, have seen the active rehabilitation of the political orientation. From this perspective, French lawyers occupy a crucial position. Over the long term—from the beginning of the eighteenth to the mid-twentieth century—their relationship with politics has been so fundamental that the professional actor and the political actor have become one, in other words the relationship has become so close-knit that the ‘profession’ has come to designate both a craft and a political movement.
Lawyers and Political Liberalism in Eighteenth- and Nineteenth-Century England
Authors: Pue W Wesley
Published: October 2023

Daniel Duman concluded his intriguing study of the English and Colonial Bars in the nineteenth century with the observation that despite rapid increases in admissions to the four Inns of Court between 1835 and 1885 ‘severe overcrowding at the English bar’ was avoided by the fortuitous ‘emergence of new employment opportunities in the public service and in the law itself’. Opportunities relating to ‘directing the economy and society’, legal advice, colonial service, and business helped to stave off the ‘threat of unemployment’. According to Duman this, in tum, had a significant political consequence in that the rosy career prospects for lawyers helped to produce relative political stability in nineteenth-century England.
Theories of Law in Policing
Authors: Dixon David
Published: October 2023

In literature and debates on policing, it is possible to distinguish three significant conceptions of the relationship between policing and legal rules: legalistic-bureaucratic; culturalist; and structural. This Chapter provides a critical analysis of them. They are not formal conceptual models: works to which reference is made seldom fit neatly within these categorizations, and the examples are not intended to provide an exhaustive taxonomy. Rather, the intention is to draw attention to a variety of emphases in policing studies. This Chapter will outline these conceptions, paying particular attention to a variety of structural accounts. The concluding chapter will return to these themes in an attempt to synthesize and develop elements of them.
Policing by Law and Policing by Consent
Authors: Dixon David
Published: October 2023

As suggested in Chapter 2, the adoption of techniques of legal regulation has become increasingly common in attempts to change and control policing in a number of jurisdictions (including Australia, Canada, the United States, New Zealand, Scotland, England and Wales). The general aim is the extension (or formalization), clarification, and specification of police powers and of suspects’ rights. My concern here is with a major issue which the strategy of legal regulation has not yet adequately faced-the problem of consent. Police officers may be able to achieve their objectives (e.g., to interrogate or to search) not by using a legal power, but by securing the ‘consent’ of the suspect or other subject of their attention.
The Legal (Non)Regulation of Custodial Interrogation in New South Wales
Authors: Dixon David
Published: October 2023

This Chapter deals with the ways in which New South Wales police have conducted criminal investigation ithout legislative authority to detain suspects between arrest and charge. Research for it began as a study, by observation and interviews, of policing in NSW. However, the principal focus is not on the police: the need soon became clear to locate policing in the legal environment provided by the courts and the legislature. As will be seen, New South Wales provides a strong case for McBarnet’s argument that attention should be shifted from those who administer the law to those who make it (1976: 199; see Ch. 1, above).
Questions in Legal Interpretation
Authors: Bix Brian
Published: October 2023

Philosophers in a variety of fields have recently put forward theories in which practice has a significant role within the analysis. Most of these theories, to a greater or lesser extent, are inspired by Wittgenstein’s later writings. The tum to practice-based theories has occurred, if unevenly, in jurisprudence as well. The first part of this paper considers some of H. L. A. Hart’s early work, aspects of which may be better understood if seen as an early attempt at a practice-based approach to law. In passing, possible connections and parallels between that work and Wittgenstein’s writings will be considered. The second part of the paper analyses questions about legislative intention and Ronald Dworkin’s interpretative theory from the point of view of a practice-based approach.
The ratio decidendi of the Case of the Prodigal Son
Authors: Twining* William
Published: October 2023

Legal scholars and law students are not the only people who should be grateful to Brian Simpson. He has made important contributions to legal history, legal theory, and the study of the common law. He has also been one of the few academic lawyers of his generation to convey to a wider audience the message that the study of law can and should be part of the humanities and of general intellectual culture. Contextual studies of leading cases are Simpson’s special genre, as we have seen in the other chapters of this book. These demonstrate how our subject can not only illuminate many things other than law, but can be fascinating and enjoy able as well.
The Enforcement of Directives in National Law
Authors: Ward Angela
Published: October 2023

Contemporaneously with the evolution of rules pertaining to national remedies and procedural rules, related developments in a neighbouring field further intensified the ve1tical reach of Community law into the legal systems of the Member States. Since the mid-1980s, some novel methods have been designed by the Cou1t of Justice to secure the proper application of Directives within domestic legal systems, in accordance with the principles laid down in A1ticles IO and 249 of the EC Treaty.
General Conclusions
Authors: Ward Angela
Published: October 2023

This book has examined the notions of ‘effective judicial protection’ and ‘individual rights’ in the European Community legal order, and has drawn out some of the problems inherent in their continued use to justifying the ‘federal’ constitutional design crafted by the European Court of Justice.