Legal Studies Research Paper Series Vol. 5, No. 4

The Faculty has published the third edition of 2014, Volume 5 Number 4 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Michael Waibel: Investment Arbitration: Jurisdiction and Admissibility (9/2014)

Jurisdiction refers to the power of a court or judge to entertain an action. By contrast, admissibility concerns the power of a tribunal to decide a case at a particular point in time in view of possible temporary or permanent defects of the claim. With admissibility, the question is whether the claim is ready for decision at this stage. Whereas jurisdiction typically looks at the dispute as a whole, admissibility is concerned with particular claims. Even though the distinction between jurisdiction and admissibility is a longstanding one in international law, the delimitation of the two is not always straightforward, and in addition the terminology is sometimes inconsistent. In investment arbitration, the boundary between jurisdiction and admissibility is particularly fluid.

After introducing the central concepts – jurisdiction, admissibility and applicable law, Section B examines different modalities of how states and investors consent to the adjudication of their investment disputes. Section C turns to three general jurisdictional questions: Kompetenz-Kompetenz; the existence of a legal dispute and counterclaims. Section D turns to the scope of jurisdiction, and looks the four dimensions of jurisdiction (personal, territorial, temporal and subject matter). Section E distinguishes issues of admissibility from issues jurisdiction, and explains how jurisdiction and admissibility interact.

Simon Deakin: The Legal Framework Governing Business Firms and its Implications for Manufacturing Scale and Performance: The UK Experience in International Perspective (15/2014)

This paper review empirical studies examining the economic effects of laws governing the formation, financing and organisation of business firms with the aim of putting the UK experience in a comparative perspective. The literature identifies two models of legal support for manufacturing which imply different directions for policy: on the one hand, the Silicon Valley model of venture capital funded growth which depends on liquid capital markets and flexible labour markets, and the northern European and Japanese model which is based on long-term innovation, stable ownership, and institutionalised worker-management cooperation. The UK has some of the legal features of the Silicon Valley model, but important parts are missing: for example, the Californian rule under which post-employment restraints (‘restrictive covenants’) are void on the grounds of their anti-competitive effects has no equivalent in the UK. Conversely, although the UK has certain elements of the northern European or east Asian model of institutionalised corporate governance, it is unlikely to be able to replicate the ‘productive coalition’ approach of these countries as long as the legal framework prioritises shareholder rights and the market for corporate control, and provides limited encouragement for job security. The Silicon Valley and ‘productive coalition’ models are ideal types which can distract from the fact that most countries, the UK included, are hybrid systems with some of the characteristics of each model. Rather than designing laws and policies exclusively with one model or the other in mind, it may be preferable to consider specific laws and policies on their own merits, while bearing in mind that a given legal rule or policy does not operate in isolation from others and that there may be some ‘network effects’ in operation due to the way that particular rules interact.

Matthew Dyson: Might Alone Does Not Make Right: Justifying Secondary Liability (16/2014)

The current test for secondary liability usually turns on foresight of a risk that the principal might commit the crime, but this is misguided. If some form of foresight must be used, which is both doubtful and if true, regrettable, the current formulation of it is unacceptable. It is commonly said now that S is liable for the same offence as P, where S foresees a “real risk” or “substantial possibility” that P will commit that offence. This is a poor cousin to recklessness, the hard-won common law test for wrongful risk-taking. In particular, reference to quantifying the risk cannot take the place of the other established element of recklessness: recklessness only criminalises foreseeing a risk and unjustifiably taking it, rather than merely the taking of any appreciated risk, however small. A return to established principle might help to level off from the last twenty years’ downward spiral of the level of culpability required for secondary liability and prevent further problems in the law. At the very least, the law should recognise the situations where the validity or utility of the conduct by the secondary party makes the risk that it contributes to a crime taking place insufficient to justify criminal liability.

Brian Sloan: Loving but Potentially Harmful Parents in the Supreme Court (17/2014)

This paper is a case note on the Supreme Court's decision in Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33.

Neil Andrews: Fundamentals of Multi-Party or Collective Litigation (21/2014)

Fundamental choices are to be made when fashioning a system or combination of systems concerning multi-party and collective relief (see section II of this article). These include: economic access to justice (section III), opt-out 'class’ litigation (notably the status of `representatives’ suing on behalf of the class of alleged victims, and the availability of claims for compensation or money) (section IV) and opt-in arrangements and group litigation (see section V).

Subject to controls, England has embraced group litigation (opt-in) and that it continues to offer representative proceedings (opt-out), extending the latter to cover claims for compensation where the global amount is ascertainable and there is a clear criterion for distributing the damages `kitty’ amongst individual victims (section IV). But caution should not be thrown to the winds. Arrangements must be carefully controlled and monitored because unduly vigorous and dynamic collective redress can become problematic (section VI).

Interested readers can browse the Working Paper Series at SSRN, or sign up to subscribe to distributions of the the e-journal.