Legal Studies Research Paper Series Vol. 6, No. 11

The Faculty has published Volume 6 Number 11 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Christopher Kuner: Extraterritoriality and Regulation of International Data Transfers in EU Data Protection Law (49/2015)

Use of the term “extraterritorial” to describe the regulation of international transfers of personal data in EU data protection law has led to confusion about the scope of such regulation. Any distinction between extraterritoriality “in scope” and “in effect” has become meaningless. Extraterritoriality in EU regulation of international data transfers is intrinsically neither good nor bad; rather, its appropriateness depends on how it is used and implemented. Regulation of international data transfers in EU data protection law tends to apply in a “black or white” fashion, without the safety valves necessary to prevent jurisdictional overreaching. This leads to increasing conflicts between EU law and the law of third countries. Attention should turn from deciding whether a particular exercise of jurisdiction is extraterritorial, to determining the conditions under which it can be appropriate. The controversy surrounding extraterritoriality illustrates the need to set boundaries to the application of EU data protection law.

Brian Sloan: Trusts and Anti-Avoidance Under the Care Act 2014 (50/2015)

This paper arises out of the author’s project on “Adult Social Care and Property Rights”, begun during an Early Career Fellowship at the Centre for Research in the Arts, Social Sciences and Humanities in 2015. A version of the paper was presented at the “Modern Studies in the Law of Trusts and Wealth Management” Conference in Singapore in July 2015. The social care system in England was the subject of an overhaul via the Care Act 2014, which is yet to be fully implemented. Inter alia, the Act seeks to rationalise the provision of social care, to limit the amount that any one person can be expected to contribute towards his or her lifetime care costs, and to increase the extent to which liabilities to pay for care are deferred, for example until the sale of the care recipient’s home on death. Many individuals will nevertheless be expected to contribute a significant sum towards care costs, even if it is ultimately borne by their estates after death. This potential liability is likely to lead to attempts to shield certain assets from local authorities in order to provide for dependants and others who have a legitimate claim to the now-deceased care recipient’s estate. The Act also contains wide-ranging anti-avoidance provisions designed in substance to reverse dispositions made in order to avoid liability for social care charges. The paper’s aim is to evaluate whether the Act achieves an adequate balance between ensuring that the costs of necessary care are equitably distributed, and protecting the property-related interests of care recipients and those who would otherwise be the beneficial recipients of their assets.

Christopher Sargeant: Factortame Revisited and the Constitution Reimagined: The UK Supreme Court Takes its First Ride on the HS2 Rail-Line (52/2015)

This paper considers the recent decision of the UK Supreme Court in the HS2 case. It argues that notwithstanding the importance of the individual technical conclusions ultimately reached on the specific questions raised, the primary significance of this decision derives instead from the important and undoubtedly welcome reasoning of the Justices concerning the relationship between the UK legal order and that of the European Union ('the EU'). This is most notable in regards its analysis of the extent of the supremacy enjoyed by the latter over the former, but also in so far as it suggests a more nuanced understanding of the constitutional model that is presently understood to exist in the UK than is ordinarily the case.

Marc T. Moore: Understanding the Modern Company through the Lens of Quasi-Public Power (53/2015)

The Anglo-American public company is one of the most heavily studied institutions within modern western society. However, over recent decades there has been an increasingly pervasive tendency amongst social-scientists to seek to depict and understand companies in purely instrumental or anatomical terms, by reference to the prudential private incentives of their individual participants. Such reductionist and individualistic depictions of the company have an undoubted analytical value, but also something of a descriptive ‘blind spot’ when it comes to the more ‘public’ aspects of the company’s structural architecture. Indeed, the notion of power – as it is typically manifested within the internal relational architecture of the modern company – cannot properly be understood by reference to the orthodox ‘private’ reference point of the discrete reciprocal transaction. In particular, the aspect of the corporation that is typically regarded as its most inherently private feature – namely the central equity relation between its shareholders and management – is, in itself, fundamentally unrepresentative of a discrete reciprocal transaction in the classically understood sense. Rather, it is characterised by an inherent structural imbalance, as a result of which management is customarily vested with a significant ambit of power in allocating shareholders’ invested funds. Such power, moreover, is not fundamentally dissimilar from the type of power exercised by the state in allocating public revenue streams committed by citizens. Accordingly, just as the public power of the state must be ‘checked’ by effective accountability mechanisms to secure its legitimacy in the eyes of citizen subjects, so too – correspondingly – must the quasi-public power of the company (and, in particular, its management) be effectively ‘checked’ so as to secure the continuing acquiescence of shareholders in their subjection to management’s discretionary prerogative. This arguably helps to explain the existence of mandatory corporate governance laws in the US and UK which have the effect of compelling periodic account-giving by management to shareholders.

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