Legal Studies Research Paper Series Vol. 7, No. 3

The Faculty has published the third edition of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN: Volume 7 Number 3.

This issue includes the following articles:

Kathleen Liddell & Michael Waibel: Fair and Equitable Treatment and Judicial Patent Decisions (4/2016)

This article focuses on the increased scope for tension between obligations under investment treaties, particularly fair and equitable treatment, and the interpretation of national patent law by domestic courts. Precisely because investment treaties were created to protect investors from State-led mistreatment and bias, and investment treaties include intellectual property (IP) rights in their definition of investment, the question is how much flexibility national courts retain in applying, interpreting and developing IP laws. The implication of international investment treaties limiting longstanding flexibilities in IP law could be serious and profound. What more precisely are the implications of the IIL fair and equitable treatment standard for patent law and domestic court interpretations?

Our main conclusions are: first, that investment tribunals should defer substantially to interpretations of patent law by domestic courts, limiting themselves to reviewing decisions for lack of a rational basis or lack of elementary procedural fairness (denial of justice). They should not engage in closer scrutiny. Second, if investment tribunals engage in closer scrutiny (for instance, in relation to patent decisions by other State organs, or if they reject our first conclusion), fair and equitable treatment provides limited stability for existing patents and for patent law. Investors have no legitimate expectation that national patents will be irrevocable, that national courts will interpret domestic rules of patentability – such as utility – in a particular way, or that patent law will be static over time. However, domestic courts (and other State organs) breach FET if they contradict settled patent law and apply this to existing patents in such a way that the patent rights are diminished, or adopt an interpretation with no rational basis.

Mark Elliott: From Heresy to Orthodoxy: Substantive Legitimate Expectations in English Public Law (5/2016)

English administrative law is unusual in the common law world for its embrace of the doctrine of substantive legitimate expectations. However, while that doctrine is now an accepted — if not yet fully settled — part of the administrative law landscape in England, it is only 20 years since it was judicially castigated as "heretical". This paper charts the development of the substantive legitimate expectation doctrine over recent decades, and critically examines the reasons for its transformation from heresy to orthodoxy.

It does so by situating the emergence of the substantive legitimate expectation principle within the context of wider changes that have taken place in English public law in recent decades, arguing that the patina of doctrinal orthodoxy that substantive legitimate expectations now enjoy is warranted. That position is advanced by reference to two lines of argument.

First, it is argued that the doctrine of substantive legitimate expectation can be understood in terms more subtle and less uncompromising than those implied by the early cases which attracted particularly critical attention, both academically and judicially.

Second, as well as addressing the substantive legitimate expectation doctrine's compatibility with orthodoxy, orthodoxy's compatibility with the doctrine is examined and two distinct but complementary propositions advanced. It is argued, on the one hand, that understandings of what orthodoxy is have evolved somewhat in the last 20 or so years. On the other hand, it is argued that understandings of what orthodoxy requires, in doctrinal terms, have also changed.

These shifting perceptions of the nature and implications of orthodoxy have served to carve out a space for the substantive legitimate expectation doctrine today which is more generous than that which previously existed. The story of the evolution of the doctrine of substantive legitimate expectation thus forms part of a larger tableau upon which is recorded the recent evolution of English administrative law itself.

Marc T. Moore: The Pre-Eminence of Securities (Over Company) Law Claims in Redressing the Mismanagement of Anglo-American Listed Firms (6/2016)

This paper argues that the director’s company law duty of care is a practically insignificant mechanism for redressing the mismanagement of Anglo-American listed companies today. This is due in particular to the fact that traditional company law negligence claims have been rendered largely superfluous with respect to listed company internal control failings by the alternative availability of securities law actions centred on alleged managerial misinformation in connection with board oversight failure. Based on analyses of the post-financial-crisis Citigroup and (ongoing) RBS litigation, the paper argues that misinformation-based actions are in general a more practicable avenue of redress for investors in US and UK listed companies who incur losses as a result of high-level internal corporate control failings, in comparison to traditional company law negligence claims.

Peter Turner: Equity and Administration (7/2016)

Each generation of lawyers in common law systems faces an important question: what is the nature of equity as developed in English law and inherited by other common law jurisdictions? While some traditional explanations of equity remain useful – including the understanding of equity as a system that qualifies the legal rights people ordinarily have under judge-made law and under legislation – other common explanations are unhelpful or misleading. This paper will form the introduction to a volume of essays considering a distinct and little noticed view of equity. By examining the ways in which courts of equity have addressed a range of practical problems regarding the administration of deliberately created schemes for the management of others’ affairs, modern equity can be seen to have a strongly facilitative character. The extent of and limits on this characterisation of equity are explored both in this paper and in others that will be published together as Turner (ed), Equity and Administration (in press, CUP, 2016). The contributions cover equity’s attitude to administration in various public and private settings in common law systems.

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