Legal Studies Research Paper Series Vol. 5, No. 7

The Faculty has published Volume 5 Number 7 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Veronika Fikfak: Judicial Strategies and Their Impact on the Development of the International Rule of Law (25/2014)

International scholars describe domestic courts as agents in the international legal order, acting in the service of the international rule of law. These courts are the first post of call where international claims are adjudicated and they are therefore the ideal organs to ensure that international law is applied as law, even against a reluctant Executive, whose actions threaten to breach the State’s international obligations. But what does it mean to say that courts protect the rule of international law? What type of behaviour does this rule require of domestic courts?

The issue of how courts should act has become especially problematic in the context of challenges individuals have brought against decisions of international institutions, which the Executive has sought to enforce domestically and which arguably limit individuals’ human rights without according any opportunity for review at an international level. Faced with applications for review of legality, domestic judges have had to choose between refusing the implementation of these 'strict' international decisions and abstaining from review altogether, thus giving these international decisions their full effectiveness. Stuck between a rock and a hard place, this chapter discusses whether domestic courts can reconcile the competing interests of individuals, international institutions and the international legal order. It investigates what strategies courts have at their disposal to undertake review which provides due process protections to individuals whilst at the same time avoiding a challenge of the authority of the international institution and ensuring the international rule of law.

Eilís Ferran: European Banking Union: Imperfect, But It Can Work (30/2014)

European Banking Union (EBU) is an odd construction born of compromises and shaped to fit into legal territory bounded by EU Treaty constraints that cannot be adjusted in the current political environment. Can EBU work in spite of the limitations of its design or is there dangerous papering over the cracks? This paper addresses this question by examining the capacity of the EBU to help stabilize the euro area and to contribute to the reversal of current trends towards fragmentation and renationalization of financial markets. The paper looks closely at the design of both the Single Supervisory Mechanism and the Single Resolution Mechanism, on which the EU legislative Institutions reached agreement in April 2014. From this analysis the paper builds the case for the claim that the legal framework for the two mechanisms is sufficiently robust for the new arrangements to have the authority and credibility to rebuild confidence and, in that way, to contribute to the reversal of the trend towards EU financial market disintegration.

Graham Virgo: Personal and Proprietary Remedies for Breach of Confidence: Nearer to Breach of Fiduciary Duty or Breach of Contract? (33/2014)

The operation of the remedies for breach of the equitable duty of confidence are confused, largely because of a recent tendency to treat the action as a tort, with a consequent lack of emphasis of the equitable origins of the action for breach of confidence. This paper places the action and the available remedies in its equitable context. It surveys the operation of the pecuniary remedies which are available, with particular reference to negotiating damages and breach of confidence. Principles are identified to determine when each remedy should be available, including two fundamental principles of but for causation and conscience. The paper also considers whether profits made from breach of confidence should be held on constructive trust. Whilst it is argued that it is now time to recognise a principled remedial constructive trust in English law, the role of such a trust as a remedy for breach of confidence is likely to be very limited.

Jo Miles et al: Child Support Judgments: Comparing Public Policy to the Public's Policy (34/2014)

Any child support regime necessarily makes policy choices about how parental income should be shared between the two parental households. Those choices involve balancing the claims of the child, the claims of the custodial parent for help with the expenses of providing for the child, and the claims of the support obligor for autonomy in deciding how to spend his own earnings. That balancing task is complicated by the fact that the child and the custodial parent necessarily share a living standard, so that any child support transfer, large or small, will unavoidably benefit the custodial parent as well as the child. This article reports the findings of an empirical study designed to reveal the policies favoured by the British public on these questions. It then compares the public's preferred policies to the policy choices implicit in the current UK child support schedule. It concludes that there are important gaps between the two, and recommends that consideration be given to amending the current UK law to better align it with the public's values on these matters. This paper, aimed at an academic audience, is a more comprehensive and technically complete presentation of an earlier paper, "Child Maintenance: How Much Should the State Require Fathers to Pay When Families Separate?", which was aimed at a general audience and published online as part of British Social Attitudes 2013.

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