Legal Studies Research Paper Series Vol. 5, No. 13

The Faculty has published Volume 5 Number 13 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Nicholas McBride: Private Law at the Crossroads: Is There a Right Way Forward? (56/2014)

This paper forms the third part of a loose 'trilogy' of papers presented at successive Obligations conferences.

In this paper I consider three different approaches that the courts could take in deciding a ‘crossroads’ case where the law is uncertain or unsettled: they could pursue the way of integrity (developing the law in a way that is consistent with the shape of the settled law), or the way of simplicity (developing the law so as to promote one value or goal, such as protecting independence or maximising wealth), or the way of pragmatism (developing the law in a way that will make things ‘go best’ in future). I argue that the courts should adopt the way of pragmatism, by showing that adopting that such an approach is both workable and justifiable. In order to show the workability of the pragmatic approach, I set out a number of principles that a pragmatic court would seek to give effect to in deciding a ‘crossroads’ case and show how those principles would apply to determine a number of vexed issues in the realm of private law: (1) the recovery of mistaken payments; (2) the recovery of compensation under the rule in Rylands v Fletcher; (3) the recovery of compensation from an employer whose employee has committed a tort that is connected in some way with the the work the employee is employed to do; (4) the recovery of compensation for loss that has been suffered as a result of a breach of statutory duty. In order to show the justifiability of the pragmatic approach, I consider and reject seven different objections that might be made to adopting the pragmatic approach to deciding ‘crossroads’ cases.

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.

Lorand Bartels: Jurisdiction and Applicable Law in the WTO (59/2014)

This paper considers the law applicable by WTO panels and the Appellate Body in dispute settlement proceedings. It looks at several discrete legal questions in which the question of the applicable law arises: questions concerning the proper establishment of a panel; questions concerning preconditions to the exercise of jurisdiction by a panel; questions concerning the application and (which is different) the applicability of rules of law to the facts of a matter. In each case the paper considers the law at issue, the law applicable to questions about that law, and the competence of WTO panels and the Appellate Body and (where relevant) the Dispute Settlement Body, to apply that law in answering these questions.

Daniel Peat: The Use of Court-Appointed Experts by the International Court of Justice (60/2014)

Faced with increasingly complex cases, the International Court of Justice has come under criticism for failing to appoint neutral experts to assist the Court under Article 50 of its Statute. After examining the limited use of court-appointed experts by the ICJ and its predecessor, the Permanent Court of International Justice, this article argues that increased recourse to expert knowledge under Article 50 would result in a delegation of the judicial function to unaccountable experts. Acknowledging the demands of technically complex cases, the article evaluates three different methods adopted by other international tribunals, under the auspices of the WTO, ECJ, UNCC, WIPO, UNCLOS and PRIME Finance. Considering the institutional specificities of the ICJ, the article concludes by advocating the adoption of a new form of pre-trial procedure involving co-operation with specialist international organisations: this could be accomplished under an amended version of the Rules, which would limit provision for expert consultation to that necessary to determine the facts pertinent to the selection and application of the rules of law necessary for the Court to perform its function in the case at hand.

Jason N. E. Varuhas: The Public Interest Conception of Public Law: Its Procedural Origins and Substantive Implications (61/2014)

This paper charts the development and identifies the core features of a unitary conception of public law that emerged in English law in the wake of procedural reforms in the late 1970s that established the judicial review procedure. This public interest conception holds that the principal concerns of public law are regulation of public power in the public interest and according to precepts of good administration. Private law was distinguished on the basis that its concern was enforcement of private rights and protection of individual interests. This public interest conception underpinned major legal developments in a critical ten- to fifteen-year period following the procedural reform which, together, forged a distinctive, integrated “system” of public law in English law. These developments were radical in a jurisdiction characterised by the Diceyan tradition that public law is private law. On the other hand, it was consonant with the historical development of English law that a substantive legal change was secreted in the interstices of a procedural innovation.

The public interest conception has proven hugely influential. It has been used as a normative idea to guide legal development across public law fields. However, the paper argues that this is problematic. This conception was forged by reference to only one branch of public law, the common law of judicial review. Contemporary public law is composed of a range of different bodies of doctrine; it has no functional unity. Where the public interest conception is used to guide development in fields other than common law review, which continues to bear its hallmarks, the risk is that the distinctively valuable functions of those other fields are impeded, while the coherence of those bodies of doctrine may be distorted. The paper analyses two examples of where this risk has become reality: the approach to grant of relief in review proceedings on EU grounds (specifically in the context of EU environmental Directives), and the approach to damages under the Human Rights Act 1998.

Ironically, principal lessons to be drawn from the emergence of the unitary public interest conception of public law are that there is no such thing as a unitary system of public law in contemporary English law, and resting legal development on the idea of a general divide between private and public law is likely to lead to fuzzy thinking, incoherence and the warping of legal doctrine; such over-simplifications, while they may appear “neat” or seem “intuitive”, should be repudiated.

Michael Waibel: Interpretive Communities in International Law (62/2014)

This chapter explores how the wide range of interpreters that populate international law, forming part of interpretive communities, affects interpretation in international law. To understand how interpretation in international law works in practice, we need to appreciate the role of interpretive communities in the interpretive process — an influence that is routinely overlooked. To look only at interpretive directions, such as the principles of interpretation found in the Vienna Convention on the Law of Treaties (VCLT), is insufficient. Any account of interpretation is incomplete without the sociological dimension of interpretive communities. The meaning of international law norms hinges on background principles shared by interpreters who form part of one or several interpretive communities. The focus is not on individual interpreters, but rather on the relationship among interpreters. Individual and group identity, the background and the shared understandings of interpreters are key ingredients in the interpretive process.

This chapter first discusses the character of interpretive communities (Part I), before showing how practices and shared understandings within those interpretive communities shape interpretation (Part II). Part III contends that interpretive debates in international law are a contest between various actors over which normative vision of international law to advance in various issue areas.

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