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  • ItemEmbargo
    'A Reasonably Well Organized Modern State': Investment Treaty Arbitration and the Reformation of Economic Sovereignty in Customary International Law
    Hailes, Oliver
    The international arbitration of investment treaty disputes between foreign nationals and their host States is commonly supposed to restrict the exercise of sovereignty. Yet several expressions of territorial jurisdiction have been identified by investment tribunals as presumptive rights of States, which formally derive from custom and are accordingly considered in their interpretation and application of treaty standards. Arbitral reasoning has thereby modernised the general international law on what a State can do in the economy. And what it cannot. This thesis highlights a positive contribution of investment treaty arbitration by showing how key cases and lines of authority have reformed the limits and content of three rights of States in the economy: expropriation, taxation, and regulation. It is organised in two parts and nine chapters. Part I lays a methodological foundation for approaching the notion of economic sovereignty as a bundle of rights under customary international law, which are routinely applied and thereby developed in investment treaty arbitration. Part II examines how the limits and content of three rights have been reformed through the arbitral application of old legal forms to modern economic measures, underpinned by several past projects in the international legal field and a general distinction between governmental authority and commercial activities. These core rights may be consensually limited by any contractual promise but must be integrated in investment treaty interpretation. For any public purpose, each State enjoys the presumptive rights: to take the property of foreign nationals with an offer of compensation at fair market value (expropriation); to make a compulsory exaction of money by law, whether or not for the predominant purpose of raising revenue but without any reciprocal benefit to the payer (taxation); and to adopt, enforce, or amend a measure creating domestic rights and obligations, subject to a circumstantial standard of reasonableness (regulation).
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    Towards an Understanding of the Distinction Between Limitations and Exceptions in International Copyright Law
    Parish, James
    The topic of copyright limitations and exceptions attracts extensive jurisprudence and academic commentary. However, the terms ‘limitations’ and ‘exceptions’ remain undefined in international copyright law. The World Intellectual Property Organization (WIPO) has offered three conflicting definitions for these terms. First, the 1980 WIPO Glossary suggests the terms are synonymous. Second, a 1999 WIPO Workshop describes ‘limitations’ as permitted-but-paid uses of a protected work, and ‘exceptions’ are free uses. Third, a 2003 WIPO Study says ‘limitations’ exclude certain subject matter from copyright protection, and ‘exceptions’ provide defendants with immunity from copyright infringement. The diversity of definitions reduces legal clarity. Amid this confusion, a former Director and Assistant Director General of the Copyright Division at WIPO suggests it is best for commentators to “avoid” using the terms altogether when describing international copyright unless they enter a “debate about the categorization, justification and ideological background of exceptions and limitations”. Article 13 TRIPS of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement set a major international test for permissible copyright limitations and exceptions. The drafting history for this provision suggests a subtly different set of definitions so far overlooked by WIPO. As early as 1958, the US Copyright Office recognised that legislatures could exclude permitted acts from the scope of copyright statutes either by narrowly defining the scope of exclusive rights using a ‘limitation’ (such as restricting the exclusive right of communication to ‘the public’, indicating that it is always lawful to communicate to private entities); or the legislature broadly defines exclusive rights (a general communication right) and subsequently provides an ‘exception’ that excludes a potential group of users from liability (perhaps a carve-out for private performances). The US Copyright Office saw two differences between limitations and exceptions: i) a formal difference and ii) a potential normative difference. Copyright legal theorists know the formal difference between limitations and exceptions, but most agree that the US Copyright Office distinctions do not matter in practice. This leads people to think that limitations and exceptions are synonymous terms. However, almost 250 years ago, Jeremy Bentham explored the philosophical and normative differences between limitations and exceptions. Copyright legal theorists have so far overlooked the contributions of Bentham and his progeny. Bentham’s theory suggests there is a right time for a legislature to use either a limitation or exception. Legislatures should use limitations to prevent the positive scope of a prohibition from exceeding its justificatory basis. Examples of copyright limitations include the idea/expression dichotomy and the permitted act of criticism. In contrast, a legislature should use exceptions to accommodate competing policies that trump copyright, such as the US bars and grills exceptions to public performance rights. Attending to this framework can enrich many aspects of copyright practice, including i) the improved readability of copyright statutes, ii) an improved legal theory of the relationship between copyright and contract law, and iii) a radical reinterpretation of Article 13 TRIPS that may provide more flexibility in enacting national limitations to copyright law.
  • ItemControlled Access
    Transboundary Self-Determination: Remedying the Effects of International Borders
    Mukhayer, Harum
    This thesis advances a new category of self-determination: transboundary self-determination. This thesis posits that transboundary self-determination may: (1) Remedy the disruptive effects of international borders on communities between two or more States separated by an international frontier, and (2) To promote a truly international peace and security in which the rights of communities between borders are prevented from falling between the cracks of the international legal framework. The original contribution this thesis makes is the enunciation of transboundary self-determination as a remedial response to the gap in international law governing the cross-border rights of communities between two or more States. As such, it is an in-between category for communities between borders who are neither internal to the State nor external to it. I suggest that this remedial right is necessary to ensure the operative effects of uti possidetis as a “photograph” of the territorial situation; a photograph that captures more than the geometric lines of frontiers and reflects the lived experience of borderlands between two or more States. Taken together the three expressions, or trichotomy of self-determination – internal, external and transboundary – ensure that no one is left behind in the expression of self-determination. It caters to the rights of transboundary peoples, broadly defined as peoples whose self is necessarily determined through cross-border cultural, spiritual/ religious, livelihood and family ties. Had it not been for borders or territorial changes these transboundary rights would have flowed freely without territorial disruption. Rooted in the jus cogens character of the right and principle of self-determination, transboundary self-determination derives its legal and normative force from the right of all peoples to ‘freely determine their political status and freely pursue their economic, social and cultural development’ enshrined in the UN Charter. Through the eight-cases presented in Chapter 3, the thesis presents examples of defacto and dejure transboundary rights from the Irish Border, Abyei Area, Kashmir, Kurdistan, Chagos Islands, Red Sea Islands, Sami Laplands and North America. These findings suggest that while the enunciation of transboundary self-determination as a unique category is novel, the rights it encapsulates are established and suggest a rule that has long been in circulation only to find a complete expression now, in this thesis.
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    The Failed Internalisation of the European Convention on Human Rights in Russia: The Gap Between Values and Norms, and the Contested Meaning of Dignity
    Izvorova, Lora
    Despite the shortcomings of Russia’s legal and political systems, in 1996 the state was offered membership of the Council of Europe (CoE) based on a rhetorical commitment to the liberal democratic values of the organisation. Ratification of the European Convention on Human Rights (ECHR) and dialogue with Strasbourg promised to facilitate Russia’s transformation into a liberal democratic state founded on respect for human rights and the rule of law. Alas, this optimistic vision did not materialise. Until its expulsion from the CoE in 2022, Russia was one of the Member States with the worst compliance with the ECHR. Furthermore, from 2010 Russia began asserting a right to disagree with the European Court of Human Rights (ECtHR) on the correct interpretation of Convention provisions if this was necessary to protect the values of the Russian Constitution. In this thesis, I examine a hitherto unexplored explanation for Russia’s failure to become a good complier with the ECHR. I argue that the internalisation of the ECHR in Russia was obstructed by the conceptual contestation of the Convention’s foundational values. In Russia and in the USSR, there was always a competing set of values through which the state interpreted its human rights obligations. These pre-existing values have shaped the meanings of dignity, liberty, equality, and rule of law in the state. Thus, although Russia incorporated its ECHR obligations in domestic law and learnt to use the language of ECHR values, it never accepted the liberal democratic meanings of these values in ECtHR jurisprudence. This plagued the dialogue between Russia and Strasbourg with mutual hostility and lack of understanding, thereby delimiting the persuasive authority of ECtHR judgments. The implications of the conceptual contestation of ECHR values on the internalisation of the ECHR in Russia will be examined in-depth by focusing on one particular value – dignity. I will show that the conception of inherent human dignity underpinning Strasbourg jurisprudence is not the meaning of dignity informing Russia’s interpretations of ECHR provisions. Instead, the dignity of the individual is perceived as a status acquired through conduct that upholds the pre-existing values which legitimise state authority. This home-grown conception of human dignity is closely linked to a view of the state as a dignified entity that embodies these values – that is, to state dignity.
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    The Principles of Territoriality - A Study in Public and Private International Law, Intellectual Property, and International Arbitration
    Rivoire, Maxence
    The principle of territoriality is often invoked as a self-evident, universally acknowledged concept in various areas of the law. Yet, there is not one, but several principles of territoriality. Not only does territoriality have different meanings in different disciplines, but it is sometimes understood differently within each discipline as well. This thesis aims to lift the uncertainty behind territoriality by clarifying its meanings and implications in four disciplines: public international law, private international law, intellectual property (IP), and international arbitration. Through a comparative and transnational lens, it examines the historical and contemporary relevance of each understanding of territoriality, while revealing connections between these understandings where necessary. This thesis then builds upon these foundations to examine the situation where different conceptions of territoriality meet and intersect: the commercial arbitration of cross-border disputes involving IP. It notably compares the question of the arbitrability of IP with the question of exclusive jurisdiction (or “jurisdictional territoriality”) in international IP litigation. It also considers the applicable law to arbitrability and to the merits of the case in arbitrations involving IP, insofar as these questions are greatly influenced by one’s understanding of territoriality.
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    Inconsistencies in Law
    Gueiros Dias, Daniela
    Inconsistencies have been the object of study of numerous analytical legal philosophers like H. L. A. Hart, Hans Kelsen, Alf Ross, Norberto Bobbio, Lon Fuller, Ronald Dworkin, Carlos Alchourrón, Eugenio Bulygin, and Pierluigi Chiassoni. Although these authors hold differing views on inconsistencies, I argue that they have all failed to arrive at a sound taxonomy of the different types of inconsistencies that can occur in the law. I claim that inconsistencies can be classified into two types, namely, contradictions and conflicts. I also contend that inconsistencies are not to be confused with improper inconsistencies, which do not concern instances of logical incompatibility between norms, but rather of functional incompatibility between them, which means that the application of one norm undermines the achievement of the goals or purposes pursued by another norm. The central claim of this dissertation is that a failure to differentiate between contradictions and conflicts as two types of inconsistencies as well as a failure to differentiate between inconsistencies and improper inconsistencies has often resulted in mistaken views about how inconsistencies affect the law’s ability to provide guidance and of how problems arising from inconsistencies in the law can be remedied. I examine the *Validity Thesis* (inconsistent norms can be simultaneously valid in a single legal system), the *Guidance Thesis* (inconsistencies undermine law’s ability to offer guidance to individuals’ conduct by rendering the law indeterminate), the *Interpretation-Creation Thesis* (inconsistencies are created by interpretation) and the *Modification of the Law Thesis* (the resolution of inconsistencies entails a modification of the legal system) with the purpose of showing how they are to be understood or, more precisely, what interpretation is to be given to them to make them correct.
  • ItemOpen Access
    The Moral Foundations of Fair Labelling
    Moshikaro, Khomotso
    This thesis examines the principle of fair labelling in criminal law. It argues that fair labelling is a principle of justice concerned with the just allocation of blame in offence (i) naming (ii) differentiation, and (iii) persistence or duration. The first two chapters examine the concept of a criminal label and its relationship to punishment. I argue here that criminal labelling is not simply concerned with offence description and categorisation, but also the allocation of a status that alters the rights and duties of an offender. Categorising an offender as having committed a certain offence which is at odds with the blameworthiness they actually deserve is a site of certain kind of injustice - an ontic injustice. This ontic injustice creates a mismatch between the offender’s entitlements (as per critical morality) and the legal categories and duties imposed on them when allocating blame in punishment. I argue that fair labelling is concerned with this specific kind of mismatch when the criminal law allocates blame in offence description and categorisation. I then argue that convictions (best understood as punitive criminal labels) are the paradigmatic case of criminal labelling and so the paradigm case for analysing fair labelling concerns. I then connect convictions to the communicative functions of the criminal law in punishment and explain why criminal conduct specifically concerns the public and community at large. In the third chapter I defend and justify criminal labelling – especially the important part criminal labels play in punishment as a communal practice concerned with moral education. Here I stress the often-neglected role that civil society plays in criminal punishment. In the fourth chapter, I then analyse the role that fair labelling plays in the allocation of blame when concerned with issues of culpability. I argue that different mens rea requirements ought to be reflected in different offences as a point of departure, taking account of the importance of the interest entailed. This does not mean criminal offences cannot blur these lines, but that such blurring will require justification by appealing to the importance of the interest involved. I also analyse the rule of law implication of properly allocating blame and argue that fair labelling is compatible with, and mutually supported by, the rule of law. The last two substantive chapters of the thesis are concerned with the persistence of an offence after offenders have served their sentence. I argue here that an offence can persist in a manner that incorrectly treats an offender as an irredeemable moral inferior and so miscategorises them as a second-class citizen. I then argue that the persistence of an offence may also fail to allow an offender to live down a conviction in a manner that creates a mismatch between their label understood as a status and their actual moral entitlements according to critical morality.
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    Equitable Access to Assisted Reproduction: Designing regulation for efficacious realisation of the right to reproductive health
    Dadiya, Jinal
    This thesis examines issues of distributive justice in the regulation of assisted reproductive technologies (ARTs). Focusing on in-vitro fertilisation and gamete cryopreservation, it locates an entitlement to access ARTs within the international human right to the highest attainable standard of health under Article 12 of the International Covenant of Economic, Social, and Cultural Rights. To establish this, it develops a normative account of the right to reproductive health under Article 12, grounded in peoples’ lived experiences of involuntary childlessness and its interconnectedness with other human rights safeguards, including that to pursue genetic parenthood. I argue that the right to health raises aspirational and procedural obligations upon states to provide ARTs, as well as an immediate obligation to ensure that where ARTs are provided, access to them is equitable. The meaning and scope of equitable ART access are examined and critiqued. The right to health raises obligations for states as well as non-state organisations, thereby necessitating careful regulatory design. The second leg of this thesis compares representative regulatory frameworks to make contextually adaptable recommendations on how ART regulation should be designed, for efficacious realisation of the right to health. Methodologically, the thesis goes beyond an analysis of doctrine and case law, to examine regulatory material and policy positions. Jurisdictions considered are Ontario (Canada), England (UK), Maharashtra (India), and Singapore. Drawing on a nuanced analyses of regulatory traditions and techniques, I demonstrate that states can, and do, meet their ART provision functions is by licensing (or delegating) them out to private fertility clinics. Where ARTs can only be provided by licensed clinics, access to them should be equitable. Recommendations are made for designing licensing conditions that further the right to health. It is further claimed that right to health does not necessitate public ART funding but justifies it. I show that a right to health approach addresses contemporary scepticism about ART funding. Based on an analysis ART funding regulation in the representative jurisdictions, I identify funding policies that are inconsistent with the right to health, and recommend practices that further the right. In doing so, I respond to concerns levelled against regulating ART provision, including those of undue medicalisation, limited resource prioritisation, and indistinguishability of ARTs from other life projects.
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    A Legal History of Narrowing Ambitions: The Rise of Human Rights in Inter-American Regional Law and Organisation
    Quintana, Francisco
    This thesis examines the rise of human rights in inter-American regional law and organisation. It contends that, first, despite their present centrality, inter-American human rights were originally not a priority of American states. Rather, the codification and institutionalisation of inter-American human rights that took place between 1945 and 1969 were part of broader struggles over the legal ordering of regional geopolitical and economic relations. These forgotten struggles involved contested visions of sovereignty, collective security, and economic cooperation, articulated in the language of international law. Second, showing the constitutive power of international law, this thesis argues that shifts in modes of international legal thought and action were conditions of possibility for both the regional codification and institutionalisation of human rights, as well as for their rise to centrality starting in the 1970s. Overall, this thesis challenges the necessity of inter-American human rights as we know them today, opening up space for critique and change. At the same time, this history underscores constraints, showing that human rights rose while projects that entailed a deeper institutional change in inter-American regionalism were foreclosed in and through international law.
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    Development of powers enabling exclusion of improperly obtained evidence in civil proceedings in England and Wales, Aotearoa New Zealand and Australia
    Allen-Franks, Alexandra
    The exclusion of improperly obtained evidence is often discussed in relation to criminal proceedings but not civil proceedings, where concerns about wrongdoing of state actors and deprivation of liberty are not usually present. This thesis takes as its starting points (a) that it is sometimes assumed or claimed that there is no ability to exclude improperly obtained evidence in civil proceedings and (b) that some commentators consider that there should be no ability to exclude such evidence in civil proceedings. Contrary to (b), this thesis argues that recognition of powers enabling exclusion in civil proceedings is justifiable with reference to a version of the integrity principle (combined with the protective principle, where it applies). Contrary to (a), this thesis demonstrates that the jurisdictions under discussion (England and Wales, Aotearoa New Zealand and Australia) have recognised and/or developed powers enabling the exclusion of improperly obtained evidence in civil proceedings. This thesis argues that (to greater or lesser extents depending on the jurisdiction), recognition or development of the ability to exclude has occurred because of crossover from criminal procedure, ideas of abuse of process that relate to inherent power of the court (and can be explained with reference to an integrity principle), commitments to human rights and associated discourse. This thesis concludes with a proposal for further development of the jurisdiction-specific powers enabling exclusion. In summary, the proposal involves structuring the power to exclude by adopting a presumption of non-admission for evidence which has been obtained unlawfully and suggesting factors that should be taken into account when considering whether the presumption has been rebutted.
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    A Care Ethical Theory of Political Obligation
    Chadha Sridhar, Ira
    The ethics of care – an approach in moral philosophy with feminist roots – understands care not just as a social phenomenon (as a type of action, relationship, or practice), but also as a crucial moral value. This thesis draws on the ethics of care to explore the question of political obligation: when, or under what conditions, do we owe a moral obligation to obey the law? The thesis has four chapters. The first chapter challenges the notion that there is a general, content-independent, moral obligation to obey the law by showing that our obligations to obey the law are content-sensitive and particular: they exist only in the case of some legal directives, and not others. The rest of the thesis makes significant progress in elucidating the conditions under which these obligations are indeed present. The core argument of the thesis is that we have moral obligations to obey the law whenever the law’s demands are supported by our underlying responsibilities of care. To lay the ground for this conclusion, the second chapter offers a discussion of the concept of care as a thick ethical concept by elucidating the descriptive and evaluative dimensions of the concept. This sets the foundation for the third chapter which analyses the scope, grounds, and content of our moral duties to care for one another. In the fourth and final chapter, these findings are applied to the philosophical discussion around the obligation to obey the law to develop a care ethical response to the problem of political obligation. The argument that emerges is that we are morally obligated to obey legal directives of our state to the extent that is necessary for the effective discharge of our duties to care for co-citizens. It is the author’s hope that this thesis will initiate further dialogue between care ethics and jurisprudence, lend clarity to some of the core tenets of the care ethical approach, and help demystify the debate around the moral obligation to obey the law.
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    Fragmentation in International Financial Regulation: Rethinking Financial Regulation for a Multipolar World
    Schilling De Carvalho, Pedro; Schilling De Carvalho, Pedro [0000-0001-7536-2661]
    International standard-setting bodies emerged as the central response to the intensification of cross-border activities. However, shortcomings in their design, the growing fragmentation of markets, and contextual changes – such as the US’ hostility towards multilateralism, the impacts of Brexit, the increasing influence of countries such as China, and nascent markets such as Fintech and Sustainable Finance – point to transformations in international financial regulation. As network governance faces greater constraints, it is fundamental to identify additional and complementary pathways for facilitating cross-border coordination and cooperation in contentious environments; for managing fragmentation and divergence. This thesis builds on the work on market fragmentation produced by the FSB, IOSCO, and the IMF to understand how deference and comparability-based approaches can facilitate global coordination and cooperation in financial markets outside international standard-setting bodies. Moreover, it analyses how deference and comparability-based approaches can impact the governance of international financial regulation and the interface between the domestic and global levels, especially in instances of market fragmentation and regulatory divergence. The thesis starts by examining the tools singled out by the FSB and IOSCO as key for coding more flexibility into the international financial architecture: equivalence and comparability-based systems. It identifies what equivalence and comparability-based assessments demand to be carried out, their shortcomings, and the interplay between comparability-based systems and the international financial architecture. The discussion then moves into how new regulatory networks – whose mandates are not focused on the creation and dissemination of international standards, but rather on capacity-building and knowledge exchange – have emerged in nascent markets, with case studies based on the Financial Conduct Authority-led Global Financial Innovation Network and the Banque de France and De Nederlandsche Bank-led Network for Greening the Financial System. Based on the idea of sequencing, the thesis analyses the use of these new structures as additional pathways for financial regulation. The examination then goes back to the FSB and IOSCO toolkit to consider the role of bilateral agreements, many of which have been deployed in such nascent markets. Lastly, the role of assessment regimes (such as the RCAP, FSAP, ROSCs, and peer reviews) in managing divergence and enabling a more flexible layer in the international financial architecture – centred around deference and comparability – is discussed.
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    The Justification and Limits of Liberty of Conscience
    Baldwin, Guy; Baldwin, Guy [0000-0003-2765-4437]
    According to Thomas Jefferson, the ‘constitutional freedom of religion’ is ‘the most inalienable and sacred of all human rights’. But the potentially expansive scope of religious convictions risks making the exercise of that human right controversial. That is because the right is usually taken to offer protection not merely to the holding of particular beliefs, but also to their exercise or manifestation. Such exercise or manifestation may be inconsistent with laws enacted to advance the public interest, or to protect the rights of others. That raises a dilemma: should legal protection for this right be allowed to trump other laws, even if they are in the public interest or seek to protect the rights of others? The project of the thesis is to explore the dilemma of the justification and limits of liberty of conscience (a term that encompasses, but is not limited to, freedom of religion). In this thesis, I defend the protection of liberty of conscience as against a state’s laws (that is, what are sometimes called ‘exemptions’). Drawing on the ideas of John Rawls – in particular, the concepts of moral personality and the basic liberties – as well as the work of other theorists, I suggest that the right to liberty of conscience is based on recognition respect for people as moral persons who have the capacity for a conception of the good and for a sense of justice. Protection of liberty of conscience is important for the exercise and development of both of these moral powers. Moreover, legal officials, like anyone else, owe duties of respect to the population that should entail respect for their liberty of conscience, and accordingly this explains why government should accommodate this immunity by granting exemptions from the law when needed. Notwithstanding the respect which is owed, I suggest that the right to liberty of conscience is only one basic liberty among several of equal status. That equality of status results from their similar derivation from the Rawlsian moral powers of a capacity for a conception of the good and for a sense of justice. Accordingly, liberty of conscience is not absolute. Drawing on Rawls, I identify two bases for the defeat of a claim to liberty of conscience: that the exercise of liberty of conscience is incompatible with the basic liberty or liberties of others, in circumstances where the other basic liberty or liberties should be prioritized (compatibility), or that limitation of the exercise of liberty of conscience is necessary in the common interest (necessity). In contrast, ideas of neutrality and dignity, employed by some theorists and courts to assess claims of liberty of conscience, are not relied upon in this thesis. I then apply the theoretical work undertaken to two case studies involving the limits of claims to liberty of conscience. I first address the theoretical basis of rights to integrity of the person and non-discrimination that are relevant to the case studies, before considering the case studies, which focus on the law of the UK and US. One case study concerns the coronavirus pandemic and objections on the basis of human rights and constitutional law against the enforcement of temporary attendance restrictions on places of worship. The other case study concerns discrimination towards same-sex couples on the basis of religious belief, in contravention of non-discrimination laws. The framework suggests that the claims to liberty of conscience in these case studies should generally fail due to the rights of others and/or the common interest; judicial decisions suggesting otherwise fail to reflect the moral position.
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    Self-Judgment in International Law
    Eichberger, Fabian
    States have long claimed the power to ‘self-judge’ the interpretation and application of norms of international law that relate to particularly sensitive issues, such as national security. However, allowing for legally binding unilateral decision-making creates the risk of abuse by states and is thus denounced by most international lawyers. Increasing arguments of self-judgment in practice disclose a need to conceptualise the phenomenon and its limits coherently. The only way to do so is by studying the evolution and functions of self-judgment, as well as the tensions that underpin it. Against the backdrop of its intellectual history, this thesis conceptualises self-judgment as the authoritative application of international legal norms. It uncovers self-judgment as the site of persistent contestation, caught between judicialisation and pushback. Based on an extensive study of self-judgment in treaty practice and a cross-institutional analysis of the case law of international judicial bodies, the thesis unravels this process of contestation in four stages. First, in line with evolving conceptions of sovereignty throughout the 20th century international judicial bodies were instrumental in articulating a presumption against self-judgment. Following this, states shifted to ever more explicit language in a second stage, aiming to safeguard their self-judgment authority in legal instruments. Third, international judicial bodies have been relying on ‘good faith review’ as a potent tool to limit self-judgment by ‘judicialising’ it. Fourth, an emerging trend of reinforced self-judgment in treaty-making reveals how some states have resisted the judicialisation process, insisting on their right to authoritatively determine how the law applies in certain cases. In addition to uncovering this dialectic of self-judgment, the thesis also analyses the key factors in this process of contestation. It reveals the risks that self-judgment provisions can pose by facilitating abuse by states and threatening the normativity of treaty frameworks and considers the value of good faith review to manage those risks. At the same time, it argues that international judicial bodies must apply good faith review deferentially in ways that allow self-judgment provisions to fulfil their functions. Otherwise, practices such as reinforced self-judgment, an effective tool to roll back judicialisation, may continue to proliferate.
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    Figments of Fragmentation in International Trade Law: Examining the Systemic Interaction between WTO Law and Regional Trade Agreements
    Delev, Christian
    The growing network of Regional Trade Agreements (RTAs) concluded between States has often been seen as a threat or policy alternative to the multilateral World Trade Organization (WTO) system. This dissertation re-evaluates this assumption by examining the interaction between WTO law and the RTA network. Focusing on the role of norms, institutions, and legal processes, it shows how this interaction has led to the development of international trade law into a legal system of international law. The argument is developed in five parts. First, the dissertation explores the concept of a ‘legal system’ and addresses how the continued interaction between WTO law and RTAs is formative of international trade law as a legal system of international law. Second, it is argued that rights and obligations under the WTO Agreement cannot be modified *inter se* based on Article 41 Vienna Convention on the Law of Treaties. As such, Members may only lawfully conclude *inter se* treaties which are compatible with existing WTO norms, fall within the scope of an exception, or are authorised through a waiver. Third, it is shown that RTA exceptions found in WTO covered agreements serve a public ordering function by defining the range of permissible RTA formations which could be established. At the same time, the conditions found in these provisions operate as incomplete bargains by setting out hermeneutically ambiguous disciplines that have not been clarified through treaty interpretation due to the reluctance of WTO Members to interpret them. Fourth, it explains how the expansion of international trade law is in part facilitated through norm dispersal processes – where norms found in one treaty are subsequently incorporated into another. However, these processes do not necessarily ensure the consistent interpretation and application of norms across international trade law, as this would depend on whether there are relevant differences between the norm-sharing treaties and the adopted method of norm incorporation. Finally, it is suggested that the WTO Appellate Body and panels may rely on the good faith obligation under Articles 3.7 and 3.10 DSU and where ‘actions’ brought by Members are not ‘fruitful’ under Article 3.7 DSU to refuse to exercise their jurisdiction where there is jurisdictional overlap. In turn, RTA tribunals may generally rely on both their express and inherent powers to refuse to exercise jurisdiction, particularly the principles of *res judicata* and *lis pendens*.
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    Law and the Paranormal: A Critical Perspective on Legal Rationality
    Sagar, Andrew
    This thesis develops a genealogy tracing how law has constructed witchcraft and related ‘paranormal’ practices throughout English legal history. It shows how early modern witchcraft laws evolved into modern fraud and consumer protection laws regulating mediumship, astrology, and fortune-telling. It argues that this development provides a case-study reflecting the emergence of several elements of the modern legal system. These include its conceptions of private property, contract, and the legal subject, but also, probabilistic causation and the juridical valorisation of natural-scientific empiricism. Linking this evolution to the emergence of capitalism, the thesis builds a unique theoretical framework drawing inspiration from critical realism, systems theory, and Marxian-inspired legal approaches, using its genealogy to offer a novel lens on law’s constitutive role within capitalist social relations. Accordingly, it posits that modern law expresses, and is bounded by, a rationality that struggles to reify certain concepts and practices, particularly paranormal practices, because of its capitalistic axioms.
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    Birthing the Eco: Towards a West African Law on Economic and Monetary Union
    Okwor, Kenneth; Okwor, Kenneth [0000-0001-9692-9305]
    This study diagnoses the reasons for the failure to achieve economic and monetary union (EMU) in the Economic Community of West African States. Economists and political scientists have proffered answers to this ‘why’ question from the prisms of their respective disciplines. They argue that the macroeconomic structures and conditions of member states, and the power dynamics in West Africa, make an EMU a fundamentally misconceived project that is bound to fail in the absence of sustained macroeconomic convergence. Since an EMU fundamentally rests on three mutually reinforcing pillars: economics, politics, and law, this study complements the literature by venturing a legal and institutional view on why the EMU has failed. In doing so, the study defines the ‘Ecozone’ as the domain for the EMU and develops the corpus of Ecozone law by synthesising the various elements comprising that law and its institutional architecture into a systematic framework for analysis. The analysis demonstrates clearly that Ecozone law is a collection of loosely-formulated and unenforceable general statements of union law, lacking the essential legal and institutional qualities necessary to make it a functional legal system both in theory and in practice. The study identifies and analyses ten issues – both *de jure* and *de facto* – which undermine the effectiveness of Ecozone law and its ability to support the establishment of an EMU. The analysis concludes that the Ecozone lacks an enabling legal environment for EMU. This is a key explanatory factor in the failure of the Ecozone as efforts to achieve sustained macroeconomic convergence, or to make EMU-related political commitments credible, have been undermined by the absence of an enabling and enforceable legal and institutional framework. In closing, the study recommends the reform of Ecozone law along a path that ensures constitutional and institutional coherence. It further recommends the restructuring of the Ecozone into a digital currency area, with the Eco as digital public money circulating in parallel to national currencies. This will compel macroeconomic convergence in the Ecozone consistent with the endogeneity thesis of optimum currency areas. The main contributions of this study are threefold. First, it synthesises the various elements that comprise Ecozone law into a coherent framework. This is novel because literature on EMU law in West Africa is sparse and the few strands of literature that exist have generally treated its various elements in siloes, without an in-depth exploration of the linkages and conflicts among them. Secondly, in expounding the corpus of Ecozone law, using the European Union’s law on EMU as primary comparator, this study has identified and analysed the weaknesses in the legal and institutional framework of the Ecozone so that reform efforts may be targeted and precise. For completeness, the study has suggested reforms that leverage on the advancements in financial technology. Third, the study contributes to the completion of the scholarly investigation into the reasons for the present failure of the Ecozone by providing the missing legal and institutional perspective to complement the economic and political views on the subject. Undergirding these three contributions is the fact that this study joins the emerging literature on EMUs in Africa and is therefore a useful addition to the body of existing knowledge on EMUs.
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    The Evolution of Hedge Fund Activism: From Corporate Raiders to Sustainability Crusaders?
    Christie, Anna
    The prevailing rhetoric associated with hedge fund activism is almost universally negative. This thesis provides new evidence of activist hedge fund behavior that contradicts this dominant narrative. The principal idea underpinning the thesis is that the conventional picture of hedge fund activism requires updating to account for two key recent phenomena: activist board representation and environmental, social, and governance (“ESG”) activism. The thesis makes at least four important contributions to academic and policy debates on hedge fund activism. First, through analyzing original hand-collected data on activist hedge fund campaigns, it demonstrates that a relatively new form of activism – activist board representation – tends to involve a longer-term approach to value creation through strategic and operational changes, rather than the short term financial engineering that activist hedge funds are commonly criticized for engaging in. Second, it builds upon the study of activist board representation campaigns to argue that activist hedge funds may be well positioned to play a unique role in ESG activism by nominating specialist climate directors to corporate boards. Third, it outlines how the phenomenon of activist board representation exposes the deficiencies of the independent monitoring board and provides suggestions for potential corporate governance improvements. Finally, it theorizes the incentives behind ESG hedge fund activism, thus providing early insights into this rapidly evolving practice. The thesis is structured as follows: Part I (Chapters 1 and 2) situates hedge fund activism and the role of the board in traditional and contemporary corporate governance debates. Chapter 1 examines the intellectual foundations underpinning the monitoring board as a response to the shareholder-manager agency problem and challenges its continued dominance in light of pressing societal challenges facing corporations. Chapter 2 critiques the narrative of short-termism that is prevalent in politics, the media, and corporate practice, which can obscure learning from the campaigns of activist hedge funds. Part II (Chapters 3 and 4) examines activist hedge fund board representation campaigns. Chapter 3 introduces this new form of hedge fund activism and presents a theory and hypotheses on the potential value associated with this type of activism. Chapter 4 tests the hypotheses presented in the preceding chapter through an empirical study analyzing activist board representation campaigns at S&P 500 companies since 2010. Part III (Chapters 5 to 7) explores ESG activism. Chapter 5 develops a new account of sustainable capitalism using the building blocks of agency theory. It highlights the major shift to passive index investing and ESG investing and analyzes the monitoring shortfall on the part of global asset managers. Chapter 6 discusses ESG hedge fund activism and – building on the theory and the empirical study presented in Part II – proposes that activist hedge funds can play a unique role in a sustainable capitalism framework by nominating specialist directors with climate or energy transition expertise to corporate boards. Chapter 7 considers socially responsible activism and presents a theoretical framework of ESG hedge fund activism.
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    Beneficial Ownership and the Attribution of the Res in UK Tax Law
    Ooi, Vincent Khay Hoe
    In UK tax law, the beneficial ownership concept is an important method of attribution which connects a *res* to an owner for the purposes of tax law. The title of this thesis may be broken down into four components: 1) beneficial ownership; 2) attribution; 3) *res*; and 4) UK tax law. This thesis will therefore explore what beneficial ownership is, how it performs its main function of attributing a *res* to a person, what a *res* is and what other rights may be attributed, and how the above applies within the confines of UK tax law. This thesis briefly discusses related (but distinct) concepts of beneficial ownership in other areas of tax law but focuses on the concept as it applies in the context of what it refers to as ‘UK domestic tax law’. Beneficial ownership is part of a group of related concepts (referred to collectively in this thesis as ‘combined subdivision variants’) which largely serve a similar purpose and are often interchangeably used. More broadly, beneficial ownership is one of several methods of attribution used in UK tax law to connect a *res* (or, more broadly, an asset) to a person for various tax purposes. This thesis considers the distinctiveness of the beneficial ownership concept and how it fits within this broad taxonomy of methods of attribution. Four main research questions have been framed and answered by this thesis: 1) why is it important to attribute assets (and *res*) to persons under UK tax law; 2) what are the methods of attribution (especially beneficial ownership) and how are they used in UK tax law; 3) how can the methods of attribution be used in legislative drafting to achieve tax policy goals; and 4) how might a framework for using methods of attribution to achieve drafting goals be developed?
  • ItemOpen Access
    The Writ of Certiorari and Its Scope, 1600-1800: For the Orderly Administration of Justice
    Warchuk, Paul
    This thesis employs an internal legal history methodology to examine the writ of certiorari in the seventeenth and eighteenth centuries. Using legal manuscripts and parliamentary records, it aims to re-evaluate the conventional answers to four key questions: how did the Court of King’s Bench come to use the writ of certiorari to quash administrative decisions? What was the purpose of the writ of certiorari? Why did Parliament begin to restrict certiorari? And, how did the judges react to these early Parliamentary attempts to restrict certiorari? It is argued that the writ of certiorari permitted the judges of the King’s Bench to capture a prerogative power that had theretofore been exercised by the Privy Council—supervising administrative decision-making. However, certiorari not only emerged with the blessing of the Crown, but greatly benefit the Crown. The focus of the writ of certiorari was on orderly administration of justice. The judges used certiorari to ensure that inferior judicial bodies implemented the law in a well-organised and controlled way. Parliament recognised the value of certiorari but also its costs. The earliest restrictions were primarily targeted at abuse by vexatious litigants. As the law of certiorari continued to develop, many promoters of legislation came to see the cost and delay of certiorari as incompatible with their desire for quick and cheap administration. Within the parliamentary process, a few judges expressed concern at restricting certiorari, but others—including Sir Edward Coke and Sir Matthew Hale—played a significant role in drafting such restrictions. In court, the judges interpreted restrictions on certiorari using conventional principles of statutory interpretation. The overall result of their interpretations was not clearly in favour or clearly against restricting certiorari. Rather, it was guided by their desire to maintain a well-organised and controlled judiciary, subordinate to the King’s Bench.