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Tuesday, 30 September 2014

Cambridge Faculty of Law Legal Studies Research Paper SeriesThe Faculty has published Volume 5 Number 11 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Neil G. Jones: The Authority of Parliament and the Scope of the Statute of Uses 1536 (47/2014)

Drawing upon evidence from early-sixteenth-century Chancery pleadings, this paper aims to contribute to our understanding of the framing of the Statute of Uses 1536. It looks, not backwards from later unexecuted uses or trusts, but forwards from evidence of practice in creating uses in the decades immediately before 1536, so as to assess the intentions of those responsible for the statute and the extent to which it was foreseen that the statute would not execute some types of uses, and that such types of uses would in practice continue to be created, suggesting that, aside from its effect upon feoffments to the uses of a last will, the intended consequences of the statute were less far-reaching than may have been supposed.

Hayk Kupelyants: Protection of Private Creditors and Deposit Insurance (51/2014)

Recent bank failures amidst the global financial crisis have sparked with new force the debates on deposit insurance. The paper overviews the protection of deposit holders in case of default of deposit-taking institutions. The paper analyses the types of deposit insurance, the remedies available to deposit holders at international and national levels. Drawing on general international law and the comparative analysis of the US and UK legal systems, the paper reaches the conclusion that depositors protected by deposit insurance schemes can retrieve rather limited legal remedies and provides a critical assessment of the protection afforded to deposit holders.

Henning Grosse Ruse-Khan: Litigating Intellectual Property Rights in Investor-State Arbitration: From Plain Packaging to Patent Revocation (52/2014)

Enforcing intellectual property rights abroad is difficult. International treaties have generally not created directly enforceable IP rights. Usually, the protection they confer cannot be directly invoked in national courts. Because of the territorial nature of IP protection, right holders must proceed in local courts based on local laws. Litigating IP rights abroad hence faces several hurdles.

International investment law offers some options to overcome these hurdles: It commonly includes IP rights in its protection for foreign investments against government interference. Often, investors can directly challenge host state measures in international arbitration proceedings. Relying on investment standards offers an alternative mechanism to protect IP rights abroad and is increasingly used to challenge the host state’s compliance with international IP treaties. However, arbitrators have on occasion denied their competence to rule on alleged breaches of an international IP agreement.

This article focusses on the investment interface aspect of IP: Compared to domestic proceedings (where international standards usually cannot be invoked), WTO dispute settlement (where right holders have no legal standing), and the protection of property under human rights instruments (where protection is limited to specific human rights standards), investor-state arbitration may be the only forum where right holders can litigate international IP norms such as the TRIPS Agreement. This may have significant effects on the autonomy of host states in responding to public interest concerns (such as access to medicines or reducing smoking) once measures affect IP rights of foreign investors. Reviewing the options for litigating international IP norms in investment disputes, I conclude that most routes pursued by right holders are unlikely to be successful. Ironically, it is only clauses in investment treaties which aim to safeguard flexibilities in the international IP system that are likely to open a door for challenging compliance with international IP obligations in investor-state arbitration.

Nicholas McBride: Tort Law and Human Flourishing (55/2014)

This is the second in a loose ‘trilogy’ of three papers that I presented at successive Obligations conferences: Obligations V (at the University of Oxford, in 2010, on the theme of ‘Rights and Private Law’), Obligations VI (at the University of Western Ontario, in 2012, on the theme of ‘Challenging Orthodoxy’), and Obligations VII (at Hong Kong University, in 2014, on the theme of ‘Divergence and Convergence in Private Law’).

In this paper, I argue that giving effect to the ‘balanced approach’ to determining what rights we have that I set out in my paper on ‘Rights and the basis of tort law’ requires one to draw on a vision of what human flourishing entails, so that we can determine whether the benefit to A from finding that he has a particular right against B outweighs the burden that B will incur if we find that A has such a right against B. I go on to argue that the vision of human flourishing that underlies the law’s practice in determining what rights we have against each other is a very familiar one – one that is widely prevalent in the West and best set out in the writings of John Finnis. I go on to criticise this account of human flourishing as radically defective, and explain what difference adopting a sounder view of what human flourishing entails would have on what rights we are recognised as having against other people.

I hope that this paper and the other two papers in the trilogy will eventually form the basis of a book, to be called The Humanity of Private Law.


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