The Faculty has distributed Volume 16 Number 1 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.
This issue includes the following articles:
Lorand Bartels & Tibisay Morgandi: International Investment Law and State Human Rights Obligations (37/2024)
This chapter addresses the different relationships that exist between states’ investment and human rights obligations. Theoretically states can reconcile these obligations by applying due diligence to foresee and mitigate potential human rights harms associated with foreign investment. This issue is particularly true of state contracts and investments involving foreseeably dangerous goods (eg tobacco or fossil fuels) and services. However, in many cases states do not or are not able to foresee these harms. This chapter discusses, in light of a proportionality framework, the different ways in which states have been able to take advantage of flexibilities – in the form of treaty or tribunal interpretations, as well as express exceptions clauses – permitting them to adopt measures to comply with their human rights obligations. However, as this chapter also discusses, some of these flexibilities have been limited in practice. In these cases, states have found themselves having to rely on two alternative ways of prioritising their human rights obligations over their investment treaty obligations: invoking a state of necessity under general international law and using treaty conflict rules to justify non-compliance with their investment obligations. These options, however, are subject to strict conditions, and in the case of the doctrine of necessity, it remains unclear whether compensation is still payable. The chapter finally addresses certain ways in which compensation itself can interfere with states’ ability to comply with their human rights obligations, including the problem of ‘crippling’ compensation. The chapter concludes with certain points that might be taken up further in a future research agenda.
Eilis Ferran & Pedro Schilling de Carvalho: Reconciling Shareholder Primacy and the Interests of People and Planet (1/2025)
The starting premise of this article is that general company law duties of directors and sustainability-related regulatory requirements can play a complementary role in accelerating the closer convergence between corporate actions and the interests of people and planet. The article considers how regulatory initiatives that work within the existing pro-shareholder company law framework can contribute to achieving this objective, especially given cases such as the UK Supreme Court’s decision in BTI v Sequana and its strong reaffirmation of shareholder primacy in the law of directors’ duties. The article considers how regulatory requirements interact with directors’ duties to define the perimeters of lawful corporate activity and discusses the role of regulation as a driver for learning and increased accountability, including via the implementation of more sophisticated risk management approaches. The article also reflects on how private and public enforcement can contribute to increasing such complementarity between regulatory requirements and company law.
Bobby V. Reddy: The UK and Dual-Class Shares: From Dual-Class Shares Lite to Full Fat (2/2025)
The London Stock Exchange’s approach to dual-class shares has meandered over the decades. Dual-class shares give privileged insiders the facility to hold voting rights that are disproportionately high compared to their economic ownership interests in the company. At one time, the exchange welcomed dual-class shares with open arms, before first informally prohibiting them, then explicitly proscribing the structure from the erstwhile premium tier, at one time the exchange’s most prestigious segment. More recently, in the shadow of what some have described as a failing stock market, the UK regulator’s attitude to dual-class shares has softened. A tentative 2021 relaxation to permit what this paper describes as ‘dual-class shares lite’ gave way to 2024 reforms that foster the admission of genuine dual-class shares companies, described herein as ‘dual-class shares full fat’. This article outlines the most recent set of UK dual-class shares reforms, critically evaluating the conditions attached to the listing of such firms. It finds that, overall, the 2024 reforms rectify the flaws of the 2021 modifications, and will be more attractive to founders of innovative, high-growth companies. However, a concomitant relaxation of related-party transaction regulations that has also taken place could portend a dual-class shares storm around the corner.
Sarah Nouwen & Neha Jain: Race and Transitional Justice: An Introduction (3/2024)
Why has the field of transitional justice failed to address one of the greatest injustices of human history: racism? Could it be different? This paper introduces the edited collection Race and Transitional Justice (Oxford University Press, forthcoming) that grapples with these questions and explores some potential responses. The contributions show that while race is an important aspect of many of the crimes that transitional justice is supposed to address and of the historical and socio-political contexts in which transitional justice mechanisms work, the field in fact has a poor sensitivity to the concept of race. As a result, transitional justice institutions may be sustaining the very racialisation that they could be expected to remedy. We identify two structural features that make it challenging for transitional justice to address racism: the legalization of transitional justice and epistemic injustices in transitional justice. The contributions vary in their hopes for redemption, ranging from calls to abandon the whole field because of its complicity in the indefinite maintenance of settler hegemony to the view that transitional justice provides an essential space to work towards a more just, non-racist, social order.
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