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Wednesday, 17 December 2014

Cambridge Faculty of Law Legal Studies Research Paper SeriesThe Faculty has published Volume 5 Number 14 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Sarah Nouwen and Wouter Werner: Monopolizing Global Justice: International Criminal Law as Challenge to Human Diversity (63/2014)

Over the past two decades, international criminal law has been increasingly institutionalized and has become one of the dominant frames for defining issues of justice and conflict resolution. Indeed, international criminal law is often presented as the road towards global justice. But the rise of international criminal law and its equation with global justice come with a profound risk: alternative conceptions of justice can be marginalized. Based on field work in Uganda and Sudan, we present five examples of alternative conceptions of justice that in fact have been side-lined: the restoration of relationships, putting an end to on-going violence, redistribution, non-criminal law forms of punishment and equality. However, international criminal law’s monopolization of discourses of justice threatens not only alternative conceptions of justice, but also international criminal law itself. It frustrates one of its main aims: the protection of diversity.

Brian Cheffins: Delaware and the Transformation of Corporate Governance (64/2014)

The corporate governance arrangements of publicly traded companies have been transformed over the past four decades. Various observers have suggested that Delaware, where more than half of U.S. public companies are incorporated, has done much to influence corporate governance changes. This Article considers the nature and extent of Delaware’s contribution to the development of corporate governance, indicating in so doing that this contribution was substantial but not decisive. Delaware had only a marginal impact on changes affecting key corporate governance topics such as executive pay and shareholder activism. On the other hand, with boards a series of well-known Delaware court decisions in the mid-1980s fortified the status of independent directors and provided incentives for boards to be attentive. Also, Delaware court rulings helped to bring to an end the hectic takeover activity of the 1980s, which in turn likely prompted a shift in emphasis away from the market for corporate control in favor of “internal” corporate governance mechanisms.

David Erdos: Exploring the Expansive yet Diverse Interpretative Stance of European Data Protection Authorities as Regards Freedom of Expression on the ʻNew Mediaʼ (65/2014)

EU Directive 95/46 mandates a strong interaction between data protection and public freedom of expression, an issue which must be addressed by Data Protection Authorities (DPAs) across an increasingly variegated and ubiquitous ʻnew mediaʼ space. A survey probing understandings of the law as regards a range of hypothetical ʻnew mediaʼ scenarios was sent to all European Economic Area DPAs. The survey results demonstrate that DPAs have generally adopted an expansive interpretation of the role of data protection norms here which is sometimes in conflict with Court of Justice jurisprudence. Not only was there always a consensus that data protection law was applicable, but only as regards the media archive scenario did a majority of DPAs consider the special journalistic, literary and artistic purposes provision (Art. 9) applicable. In the case of the scenarios clearly linked to individual self-expression (which concerned an amateur blogger, rating website, individual social networker and social networking site) many DPAs did acknowledge that default data protection rules had to be interpreted with regard for freedom of expression. In contrast, as regards the search engine indexing and street mapping service examples, there was a broad consensus that these provisions applied in full. At the same time, considerable diversity of response, seemingly unrelated to differences in national transposition of the special purposes provision, was also evident. Given this, any legislative reform resulting from a new Data Protection Regulation must be coupled with cultural engagement with DPAs in order to ensure a more harmonized, legally certain and balanced protection of rights online.

Michael Waibel and Jake William Rylatt: Counterclaims in International Law (66/2014)

Counterclaims are claims raised by respondents. Various international courts and tribunals have expressed their jurisdiction to hear counterclaims as an emanation of their inherent powers, even though their constitutive instruments are silent. Modern rules of court often contain provisions on counterclaims. So do the principal instruments and rules regulating international investment arbitration and international commercial arbitration. Counterclaims allow a tribunal to streamline and simplify the settlement of complex international disputes, where parties each present claims related to the same underlying dispute. However, respondent States may opportunistically squeeze tenuously related ‘counterclaims’ within the ambit of the jurisdiction established over the principal claim. This chapter addresses the role of counterclaims before the ICJ and international investment arbitration tribunals.


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