Legal Studies Research Paper Series Vol. 9, No. 1

The Faculty has published Volume 9 Number 1 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Johnathon E Liddicoat, Jeffrey M Skopek, Kathleen Liddell: Precision Medicine: Legal and Ethical Challenges (64/2017)

On 7 and 8 April 2016, the Centre for Medical Ethics & Law (University of Hong Kong) together with the Centre for Law, Medicine and Life Sciences (University of Cambridge) hosted a conference at the University of Hong Kong on the legal and ethical challenges facing the realisation of precision medicine.

This report provides a summary of the presentations that were given at the conference and categorises and summarises the key challenges that were explored in the roundtable discussions that followed the four categories of presentations, as well as some of the broader questions that emerged out of the conference.

Paul Daly, Kirsty Hughes & Kenneth Armstrong: Brexit and EU Nationals: Options for Implementation in UK Law (1/2018)

The purpose of this paper is to explore how the United Kingdom can give legal effect to the Article 50 TEU agreement it proposes to reach with the European Union on the rights of EU nationals. Although both sides seem to agree that the Withdrawal Agreement should have "direct effect" in the UK, there has been little or no discussion of the mechanisms available to make the rights enshrined in the Withdrawal Agreement effective in UK courts in the post-Brexit legal order. In this paper, we canvass a range of options.

In Part 1, we discuss – and dismiss – the possibility of giving effect to the rights only by means of an international treaty. In Part 2, we discuss the effect that ordinary domestic legislation could confer on the rights enshrined in the Withdrawal Agreement and identify the limitations of such an approach. In Part 3, we analyse the most plausible means of giving sufficient force in domestic law to the rights enshrined in the Withdrawal Agreement: adapting the machinery of the Human Rights Act 1998 or of the European Communities Act 1972 – our view is that the safest option would be to use the Human Rights Act 1998 model, given the doubts over the continued effectiveness of the European Communities Act 1972 post Brexit. In Part 4, we consider the possibility of a ‘No Deal’ scenario, in which the Article 50 negotiations are unsuccessful, and the consequences for the rights of EU nationals in the UK.

Our focus in this paper is on the rights of EU nationals, but the models we analyse could be adapted and adopted to give domestic legislative force to the whole of the Withdrawal Agreement. We hope that our analysis will provide a useful framework for future discussion about the means by which obligations negotiated under Article 50 could be given legal effect in the UK after it has left the EU.

Veronika Fikfak: Compensation for Human Rights Violations (2/2018)

This is a presentation of an on-going project on the European Court of Human Rights' approach to damages, funded by the UK Economic and Social Research Council. The European Court of Human Rights awards compensation (so-called ‘just satisfaction’) if it considers it necessary to sufficiently redress a violation of a human right. The aim of the project is to determine what price the Court assigns to human rights and explain the normative justifications that drive this practice depending on the right in question. Through an empirical quantitative and qualitative study of the last ten years of caselaw relating to just satisfaction and through interviews with judges of the Court, the project will discern the legal principles from the practice of the Court and critically assess the Court’s role in awarding compensation for human rights violations. The Impact publication explains the methodology adopted in the project and reveals the initial findings. The publication is principally aimed at practitioners and other non-academic audiences, working in the field of human rights.

Henning Grosse Ruse-Khan: From TRIPS to FTAs and Back: Re-Conceptualising the Role of a Multilateral IP Framework in a TRIPS-Plus World (3/2018)

International intellectual property (IP) protection is increasingly governed by a network of bilateral and regional treaties. Most of these contain obligations on the protection and enforcement of IP that set significantly higher standards than those of the TRIPS Agreement, commonly referred to as ‘TRIPS-plus’. Human rights bodies, NGOs, and academic commentators often criticise these standards for undermining flexibilities available under TRIPS. Such policy space, however, is critical to design national IP laws in light of domestic needs. This chapter makes a case for the continued relevance of the TRIPS Agreement as an overarching, multilateral framework. My argument is based on the role treaty law affords to the object and purpose expressed in Articles 7 and 8 TRIPS. They have not only been recognised as essential for promoting access to medicines in the Doha Declaration on TRIPS and Public Health. As integral objectives and principles of TRIPS, Articles 7 and 8 limit the ability of WTO Members to modify their IP-related treaty obligations inter se. Based on their negotiation history and common understandings expressed by WTO Members, I argue for an enhanced role of TRIPS’ object and purpose as a loose constitutional frame for IP commitments in bilateral and regional treaties.

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