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The Nature and Enforcement of Choice of Court Agreements: A Comparative Study (Studies in Private International Law)
by Mukarrum AhmedPRAISE FOR THE BOOK:"This constitutes a work of impressive scholarship that will become a major reference point for future discourse on choice of court agreements. Dr Ahmed advances a firm thesis in a lucid manner that will satisfy both academics and practitioners. The discussion is supported by a monumental foundation of underpinning research. Ahmed's monograph throughout shows clear understanding of underlying substantive laws and in Chapter 11 displays a refreshing willingness to engage in intelligent speculation on the implications of Brexit."Professor David Milman, University of Lancaster"The book is an excellent attempt to understand the theoretical underpinnings of choice of court agreements in private international law ... Anyone with an interest in the theory and practice of choice of court agreements, in particular in mechanisms for their enforcement, should read this book. They will find much of value by doing so."Professor Paul Beaumont, University of Aberdeen (from the Series Editor's Preface)This book examines the fundamental juridical nature, classification and enforcement of choice of court agreements in international commercial litigation. It is the first full-length attempt to integrate the comparative and doctrinal analysis of choice of court agreements under the Brussels I Recast Regulation, the Hague Convention on Choice of Court Agreements ('Hague Convention') and the English common law jurisdictional regime into a theoretical framework. In this regard, the book analyses the impact of a multilateral and regulatory conception of private international law on the private law enforcement of choice of court agreements before the English courts. In the process, it both pre-empts and offers innovative solutions to issues that may arise under the jurisprudence of the emergent Brussels I Recast Regulation and the Hague Convention. The need to understand the nature and enforcement of choice of court agreements before the English courts from the perspective of the EU private international law regime and the Hague Convention cannot be understated. This important new study aims to fill an existing gap in the literature in relation to an account of choice of court agreements which explores and reconnects arguments drawn from international legal theory with legal practice. However, the scope of the work remains most relevant for cross-border commercial lawyers interested in crafting pragmatic solutions to the conflicts of jurisdictions.
Social Legitimacy in the Internal Market: A Dialogue of Mutual Responsiveness (Modern Studies in European Law)
by Jotte MulderThis book is concerned with the social legitimacy of internal market law. What does social legitimacy entail within the multi-level 'embedded liberalism' construction of the internal market? How can the objectives of the internal market that focus on economic rights and a commitment to social diversity both be pursued without one necessarily trumping the other? These questions continue to challenge the very core of European integration. How can the diversity of Member States' 'social systems' and the varying normative infrastructure of their economies be sustainably accommodated within the internal market? This book seeks to contribute to these questions by discussing what has come to be known as the argument from transnational effects and the development of an adjudicative model for the European Court of Justice that can be termed 'socially responsive'. Drawing on the historical insights of Karl Polanyi it argues that the internal market can only be held to be socially legitimate where it supports the requirement for further market integration while still responding to social practices and values within the member states. The book presents in-depth studies of the case law of the Court in the areas of EU free movement, competition and state aid law. In so doing, this important new study aims to provide the language and tools for assessing social legitimacy in the internal market.
Law and the Precarious Home: Socio Legal Perspectives on the Home in Insecure Times (Oñati International Series in Law and Society)
by Helen Carr Brendan Edgeworth Caroline HunterThis book explores the emergent and internationally widespread phenomenon of precariousness, specifically in relation to the home. It maps the complex reality of the insecure home by examining the many ways in which precariousness is manifested in legal and social change across a number of otherwise very different jurisdictions. By applying innovative work done by socio-legal scholars in other fields such as labour law and welfare law to the home, Law and the Precarious Home offers a broader theoretical understanding of contemporary 'precarisation' of law and society. It will enable reflections upon differential experience of home dependent upon class, race and gender from a range of local, national and cross-national perspectives. Finally it will explore the pluralisation of ideas of home in subjective experience, social reality and legal form. The answers offered in this book reflect the expertise and standing of the assembled authors who are international leaders in their field, with decades of first-hand practical and intellectual engagement with the area.
Questioning EU Citizenship: Judges and the Limits of Free Movement and Solidarity in the EU (Modern Studies in European Law)
by Daniel ThymThe question of supranational citizenship is one of the more controversial in EU law. It is politically contested, the object of prominent court rulings and the subject of intense academic debates. This important new collection examines this vexed question, paying particular attention to the Court of Justice. Offering analytical readings of the key cases, it also examines those political, social and normative factors which influence the evolution of citizens' rights. This examination is not only timely but essential given the prominence of citizen rights in recent political debates, including in the Brexit referendum. All of these questions will be explored with a special emphasis on the interplay between immigration from third countries and rules on Union citizenship.
The Duty of Care in Negligence (Hart Studies in Private Law)
by James PlunkettThis book aims to provide a detailed analysis and overview of the duty of care enquiry, drawing on both academic analyses and judicial experience in leading common law systems. A new structure through which duty problems can be analysed is also proposed. It is hoped that the book provides some fresh insights and clarity of the concept to the reader.
Global Constitutionalism and Its Challenges to Westphalian Constitutional Law (European Academy of Legal Theory Series)
by Martin BelovWestphalian constitutionalism has shaped our understanding of politics, socio-political institutions and personal and political freedom for centuries. It is historically based in the foundations of Western modernity, such as humanism and rationalism, and is organised around familiar principles of national sovereignty, the rule of law, the separation of powers, and democracy. But since the end of the twentieth century, global constitutionalism has gradually emerged, challenging both the constitutional ideology and the constitutional design of Westphalian constitutional law. This book critically assesses the structural and functional transformations in the Westphalian constitutional tradition produced by the emergence of supranational and global constitutionalism. In so doing, it evaluates the theory of global constitutionalism, its legal and socio-political limits, and important issues concerning the supranational constitutionalism of the EU. This leads to an articulation of the constitutional theory of the emerging post-Westphalian constitutionalism, examining its development during a period of significantly increased access to and sharing of information, increased mobility and more open statehood, as well as the rise of human rights and its encounter with populism and nationalism. This book will be of great interest to scholars of constitutional law and theory, particularly those with an interest in globalisation and supranationalism.
Gender Justice in Islamic Law: Homicide and Bodily Injuries
by Musa Usman AbubakarThis book seeks to interrogate the classical fiqh formulation on gender and homicide with a view to exploring further the debate on whether the so-called gender injustice in Islamic law is a human creation or attributable to the divine sources of the Qur'an and Sunnah. The study is in response to the increasing criticism of the Islamic criminal law regime and the accusation that it discriminates on the basis of gender. It argues that any attempt to critique a religious question through the lens of traditional Western human rights ideals would be resisted by the vast majority of Muslims. An examination of the question and any suggested solutions offered would be much more effective if situated within the system they identify with; that is to address the question of gender justice deficit from within the Islamic legal tradition. Focusing on Nigeria and Pakistan, the book achieves this by drawing on classical fiqh literature, contemporary literature, legislative sources and relevant case law.
The Unity of Public Law?: Doctrinal, Theoretical and Comparative Perspectives
by Mark Elliott Jason Ne Varuhas Shona Wilson StarkThis major collection contains selected papers from the second Public Law Conference, an international conference hosted by the University of Cambridge in September 2016. The collection includes contributions by leading academics and judges from across the common law world, including senior judges from Australia, Canada, New Zealand and the UK. The contributions engage with the theme of unity (and disunity) from a number of perspectives, offering a rich panoply of insights into public law which significantly carry forward public law thinking across common law jurisdictions, setting the agenda for future research and legal development. Part 1 of the volume contains chapters which offer doctrinal and theoretical perspectives. Some chapters seek to articulate a unifying framework for understanding public law, while others seek to demonstrate the plurality of public law through the method of legal taxonomy. A number of chapters analyse whether different fields such as human rights and administrative law are merging, with others considering specific unifying themes or concepts in public law. The chapters in Part 2 offer comparative perspectives, charting and analysing convergence and divergence across common law systems. Specific topics include standing, proportionality, human rights, remedies, use of foreign precedents, legal transplants, and disunity and unity among subnational jurisdictions. The collection will be of great interest to those working in public law.
Contextualising International Law in Northeast Asia
by Asif H QureshiNortheast Asia is one of the most important regions of the world both economically and in terms of its historical heritage. The region poses significant challenges for international law whilst international law can unleash cooperative endeavours which can place the region in a formidable location in the new multi-polar world order. This work sets out a contextual regional approach to international law focusing on the relations as between China, South Korea and Japan. In particular the author deliberates on the historical development of international law in the region, the relationship of international law with the Chinese, Korean and Japanese legal systems; historical disputes as between the three States; and the respective practices in the sphere of monetary and trade relations. This work will be of interest to international law scholars, practitioners and policy makers.
The China-Australia Free Trade Agreement: A 21st-Century Model (Studies in International Trade and Investment Law)
by Colin Picker Heng Wang Weihuan ZhouThis book provides readers with a unique opportunity to learn about one of the new regional trade agreements (RTAs), the China–Australia Free Trade Agreement (ChAFTA), that has been operational since December 2015 and is now at the forefront of the field. This new agreement reflects many of the modern and up-to-date approaches within the international economic legal order that must now exist within a very different environment than that of the late eighties and early nineties, when the World Trade Organization (WTO) was created. The book, therefore, explores many new features that were not present when the WTO or early RTAs were negotiated. It provides insights and lessons about new and important trade issues for the twenty-first century, such as the latest approaches to the regulation of investment, twenty-first century services and the emerging digital/knowledge economy. In addition, this book provides new understandings of the latest RTA approaches of China and Australia. The book's contributors, all foremost experts on their subject matter within this field, explore the inclusion of many traditional trade and investment agreement features in the ChAFTA, showing their continuing relevance in modern contexts.
Remedies for Breach of Privacy
by Jason Ne Varuhas Nicole MorehamOver the last 15 years, privacy actions have been recognised at common law or in equity across common law jurisdictions, and statutory privacy protections have proliferated. Apex courts are now being called upon to articulate the law governing remedies, including in high-profile litigation concerning phone hacking, covert filming and release of personal information. Yet despite the practical significance of the courts' approach to damages, injunctions and other remedies for breach of privacy, very little has been written on the topic. This book comprehensively analyses these developments from a comparative perspective and provides solutions to issues which are coming to light as higher courts forge this remedial jurisprudence and practitioners look for guidance.Significantly, the essays are important not only for what they say about remedies, but also for the attention they give to the nature of the new privacy actions, providing deep insights into substantive law. The book includes contributions by academics, practitioners and judges from Australia, Canada, England, New Zealand and the United States, who are expert in the legal disciplines implicated by privacy remedies, including torts, equity, public law and conflict of laws. By bringing together this range of perspectives, the book offers authoritative insights into this cutting-edge topic. It will be essential reading for all those seeking to understand and resolve the new issues associated with privacy remedies.
The Arctic in International Law and Policy (Documents in International Law)
by Kristina SchönfeldtThe Arctic is an increasingly important region faced with major challenges caused not only by the effects of climate change, but also by a growing interest in its living and non-living resources, its attraction as a new destination for tourism, and as a route for navigation. It is not only the eight Arctic States that have paid an increased level of attention to the region; several non-Arctic actors from Asia and Europe also seek to gain more influence in the High North. At the same time, the evolving law and policy architecture for the Arctic region has recently played a more prominent role in the political and academic debate. Unlike Antarctica, where the coherent Antarctic Treaty System governs international cooperation, the legal regime of Arctic affairs is based on public international law, domestic law, and 'soft law'. These three pillars intersect and interact making Arctic governance multi-faceted and highly complex.This book provides an analytical introduction, a chronology of legally relevant events, and a selection of essential materials covering a wide range of issues-eg delineation and delimitation of maritime boundaries, environmental protection, indigenous peoples' rights, shipping, and fisheries. Included are multilateral and bilateral treaties, UN documents, official statements, informal instruments, domestic laws, and diplomatic correspondence.
Brexit and Financial Services: Law and Policy
by Kern Alexander Catherine Barnard Eilís Ferran Andrew Lang Niamh MoloneyThis timely book examines the legal and regulatory implications of Brexit for financial services. The UK's withdrawal from the EU is likely to have significant market, political, and policy consequences for the UK financial system, for the single market and the euro area, and for the international financial system. As the UK disentangles its financial system from the EU, law will matter to a profound extent. Treaties, legislation, and regulation, at UK, EU, and international levels, and the many dynamics and interests which drive them, will frame and shape the ultimate settlement between the UK and the EU. Law will also shape how the EU financial system develops post-Brexit and how the international financial system responds.Written by leading authorities in the field, this book addresses and contextualises the legal, regulatory, and policy issues across five dimensions, which correspond to the major legal spheres engaged: financial regulation implications and market access consequences for the UK financial system; labour law and free movement consequences for the UK financial system; the implications internally for EU financial governance and the euro area; the implications and relevance of the EEA/EFTA financial services market; and the trade law and World Trade Organization law implications.
British Conservatism and the Legal Regulation of Intimate Relationships
by Andrew GilbertWhat does conservatism, as a body of political thought, say about the legal regulation of intimate relationships, and to what extent has this thought influenced the Conservative Party's approach to family law? With this question as its focus, this book explores the relationship between family law, conservatism and the Conservative Party since the 1980s. Taking a politico- and socio-legal perspective, the discussion draws on an expansive reading of Hansard as well as recently released archival material. The study first sets out the political tradition of conservatism, relying largely on the work of Edmund Burke, before going on to analyse the discourse around the development of four crucial statutes in the field, namely: the Matrimonial and Family Proceedings Act 1984; the Family Law Act 1996; the Civil Partnership Act 2004; and the Marriage (Same Sex Couples) Act 2013. This work offers the first extended synthesis of family law, conservative political thought and Conservative Party politics, and as such provides significant new insight into how family law is made.
World Trade Law: Text, Materials and Commentary
by Simon Lester Bryan Mercurio Arwel DaviesThis third edition of one of the leading textbooks on world trade law offers what is, in a number of ways, a unique perspective on this important subject. Combining the best aspects of both casebook and treatise, this comprehensive textbook provides detailed explanations and analysis of the law to help understand the issues as well as case extracts to offer a flavour of the judicial reasoning of trade adjudicators. Moreover, the book is truly global in outlook, being equally useful for students of international trade law in the UK, Europe, the US, Asia and elsewhere around the world. This updated edition includes in-depth discussions of the most recent developments in international trade jurisprudence, setting out important precedents that help establish the boundaries between global trade rules and domestic national autonomy. In this era, when political developments place even more importance on international trade, it will be essential reading for all students, scholars and practitioners in the field.
Carter v Boehm and Pre-Contractual Duties in Insurance Law: A Global Perspective after 250 Years
by Yong Qiang Han Greg PyntRevisiting Carter v Boehm, the collected papers in this book are intended as a catalyst for rethinking the pre-contractual duties in insurance law and the related principle of utmost good faith at a critical time for insurance law. In so doing, it endeavours to provide insurance law students, academics, practitioners and judges with new perspectives for a keen understanding of this fundamental aspect of insurance law, which has become increasingly dynamic under both common law and civil law legal traditions. It will explore to what extent and why the doctrines of pre-contractual duties in insurance law under the two major legal traditions are converging, as well as the implications of such convergence. It will be of great interest to students, academics and practitioners in the field of insurance law.
Reclaiming Constitutionalism: Democracy, Power and the State
by Maria TzanakopoulouReclaiming Constitutionalism articulates an argument for why the constitutional phenomenon remains attached to the state – despite the recent advent of theories of global constitutionalism. Drawing from the idea that constitutionalism historically sought to build social consensus, this book argues that the primary aim of constitutionalism is to create social peace and to shield, rather than to limit, the power of political elites in any given state. Implicit in the effort to preserve social peace is the fundamentally important acknowledgement of social conflict. Constitutionalism seeks to offer a balance between opposing social forces. However, this balancing process can sometimes ignite, rather than appease, social conflict. Constitutionalism may thus further a project of social struggles and emancipation, for it incorporates within its very nucleus the potential for an agonistic version of democracy. In light of the connection between social conflict and constitutionalism, this book explores the conditions for and locations of the former. From the state and the EU to the global level, it considers the role of citizenship, national identities, democracy, power, and ideology, in order to conclude that the state is the only site that satisfies the prerequisites for social conflict. Reclaiming constitutionalism means building a discourse that opens up an emancipatory potential; a potential that, under current conditions, cannot be fulfilled beyond the borders of the state.
The EU, World Trade Law and the Right to Food: Rethinking Free Trade Agreements with Developing Countries (Studies in International Trade and Investment Law)
by Giovanni GruniIn recent years the European Union has developed a comprehensive strategy to conclude free trade agreements which includes not only prominent trade partners such as Canada, the United States and Japan but also numerous developing countries. This book looks at the existing WTO law and at the new EU free trade agreements with the Caribbean and sub-Saharan Africa through the lens of the human right to adequate food. It shows how the clauses on the import and export of food included in recent free trade agreements limit the capacity of these countries to implement food security policies and to respect their human rights obligations. This outcome appears to be at odds with international human rights law and dismissive of existing human rights references in EU-founding treaties as well as in treaties between the EU and developing states. Yet, the book argues against the conception in human rights literature that there is an inflexible agenda encoded in world trade law which is fundamentally conflictual with non-economic interests. The book puts forward the idea that the European Union is perfectly placed to develop a narrative of globalisation considering other areas of public international law when negotiating trade agreements and argues that the EU does have the competences and influence to uphold a role of international leadership in designing a sustainable global trading system. Will the EU be ambitious enough? A timely contribution to the growing academic literature on the relation between world trade law and international human rights law, this book imagines a central role for the EU in reconciling these two areas of international law.
Uniform Rules for European Contract Law?: A Critical Assessment
by Francisco De ElizaldeOver the last 30 years, the evolution of acquis communautaire in consumer law and harmonising soft law proposals have utterly transformed the landscape of European contract law. The initial enthusiasm and approval for the EU programme has waned and, post Brexit, it currently faces increasing criticism over its effectiveness. In this collection, leading academics assess the project and ask if such judgements are fair, and suggest how harmonisation in the field might be better achieved. This book looks at the uniform rules in the context of: the internal market; national legislators and courts; bridging the gap between common and civil law; and finally their influence on non-member states. Critical and rigorous, it provides a timely and unflinching critique of one of the most important fields of harmonisation in the European Union.
Ethical Business Practice and Regulation: A Behavioural and Values-Based Approach to Compliance and Enforcement (Civil Justice Systems)
by Christopher Hodges Ruth SteinholtzThis book explains the concepts of Ethical Business Practice (EBP) and Ethical Business Regulation (EBR), a new paradigm in compliance and enforcement based on behavioural science and ethics. EBR provides the basis for an effective relationship between a business and its regulators, resulting in better outcomes for both. EBR is attracting extensive attention from regulators and businesses around the world. The UK Government's 2017 Regulatory Futures Review draws on EBR as the foundation for its policy of 'regulatory self-assurance'. EBR draws on findings from behavioural science, responsive regulation, safety and business and integrity management to create a practical and holistic approach. Examples include the open culture that is essential for civil aviation safety, the Primary Authority agreements between regulators and national businesses, and feedback mechanisms provided by market vigilance systems and sectoral consumer ombudsmen. This book provides an essential blueprint for sustainable business and effective future regulation.
The UK Constitution after Miller: Brexit and Beyond
by Mark Elliott Jack Williams Alison L YoungThe judgment of the UK Supreme Court in R (Miller) v Secretary of State for Exiting the European Union is of fundamental legal, constitutional and political significance. The Supreme Court's judgment discussed the relative powers of Parliament and the Government, the relationship between Westminster and the devolved legislatures, and the extent to which the UK's membership of the EU had changed the UK constitution, both prior to and even after departure. It also provided further evidence of the emerging role of the UK's Supreme Court as a constitutional court, despite the lack of a codified constitution in the UK.This edited collection critically evaluates the decision in Miller, providing a detailed analysis of the reasoning in the judgment and its longer-term consequences for the UK constitution through the period of Brexit and beyond. The case is used as a lens through which to evaluate the modern UK constitution and its potential future evolution. Whatever form Brexit may eventually take, the impact that EU membership and the triggering of Brexit has already had on the UK's constitutional settlement is profound. The book will be of great value to anyone interested in the effect of the Miller case and Brexit on the UK's constitution.
The Rule of Law in the European Union: The Internal Dimension (Modern Studies in European Law)
by Theodore KonstadinidesThis is a book about the internal dimension of the rule of law in the European Union (EU). The EU is a community based on law which adheres to and promotes a set of common values between the Member States. The preservation of these values (such as legality, legal certainty, prohibition of arbitrariness, respect for fundamental rights) is pivotal to the success of European integration and the well-being of the individuals within it. Yet, the EU rule of law suffers from an imposter syndrome and has been the subject of criticism: ie that it is only part of the EU agenda in order to legitimise sweeping new powers and policies, and that it plays little or no role in promoting a culture of compliance for either deviant EU Institutions or for Member States. This book will examine whether the EU rule of law deserves those criticisms. It will offer an analytical guide to the EU rule of law by conceptualising it and locating it within the sources of EU law. It will then ask whether the EU is based on the rule of law - a question which is answered in the affirmative, but one which has to be considered in the context of compliance and the overall effectiveness of the EU enforcement acquis. It is argued that while the EU means well in its aim to preserve unity in an increasingly diversified Europe, the extent to which it can pave the way to a better world (based on a transnational rule of law concept akin to good governance and improvement of citizens' lives) is dependent on the commitment of all European integration stakeholders to the EU project.
Redress Schemes for Personal Injuries (Civil Justice Systems)
by Sonia Macleod Christopher HodgesThis ground-breaking book takes a fresh look at potential non-litigation solutions to providing personal injury compensation. It is the first systematic comparative study of such a large number – over forty – of personal injury compensation schemes. It covers the drivers for their creation, the frameworks under which they operate, the criteria and thresholds used, the compensation offered, the claims process, statistics on throughput and costs, and analysis of financial costings. It also considers and compares the successes and failings of these schemes. Many different types of redress providers are studied. These include the comprehensive no-blame coverage offered by the New Zealand Accident Compensation Corporation; the widely used Patient, Pharmaceutical, Motor Accident and Workers Compensation Insurance systems of the Nordic states; the far smaller issue-focused schemes like the UK Thalidomide and vCJD Trusts; vaccine damage schemes that exist in many countries; as well as motor vehicle schemes from the USA. Conclusions are drawn about the functions, essential requirements, architecture, scope, operation and performance of personal injury compensation systems. The relationships between such schemes, the courts and regulators are also discussed, and both calls and need for reforms are noted.Noting the wide calls for reform of NHS medical negligence litigation within the UK, and its replacement with a no blame approach, the authors' findings outline options for future policy in this area. This major contribution builds on general shifts from courts to ADR, and from blame to no blame in regulation, and is a work that has the potential to have a major impact on the field of personal injury redress.With contributions by Raymond Byrne, Claire Bright, Shuna Mason, Magdalena Tulibacka, Matti Urho, Mary Walker and Herbert Woopen.
The Needed Balances in EU Criminal Law: Past, Present and Future (Hart Studies in European Criminal Law)
by Chloé Brière Anne WeyemberghThis important volume provides an up-to-date overview of the main questions currently discussed in the field of EU criminal law. It makes a stimulating addition to literature in the field, while offering its own distinctive features. It takes a four-part approach: firstly, it addresses issues of a constitutional nature, such as the EU competence in the field of criminal law, the importance of the principle of subsidiarity and the role played by the different EU institutions. Secondly, it looks at issues linked to the quest of the right balance between diversity and unity, and focuses in particular on the special relationship between approximation and mutual recognition. Thirdly, it focuses on the balance between security and freedom, or, in other words, between the shield and sword functions of EU criminal law. Special attention is given here to transatlantic cooperation, data protection, terrorism, the European Arrest Warrant and the European Investigation Order. Finally, it examines the importance of balanced relations between criminal justice actors.
Rationalising Constructive Trusts (Hart Studies in Private Law)
by Ying Khai LiewConstructive trusts significantly interfere with the rights of an apparent legal owner of property. This makes it necessary for their imposition to be properly explained and justified. Unfortunately, attempts to rationalise constructive trusts as a whole-as opposed to specific doctrines or particular aspects of constructive trusts-have been few and far between.Rationalising Constructive Trusts proposes a new structure for a coherent understanding of constructive trusts. By using a combination of conceptual tools, it provides answers to a number of crucial questions, for example: What are the ingredients of a constructive trust claim? What are the limits of constructive trusts? How can we rationalise the imposition of constructive trusts in particular situations? Why do judges exercise varying degrees of remedial discretion in different doctrines?From a wider perspective, the structured understanding helps us to appreciate the precise ambit and role of express, constructive, and resulting trusts.