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

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

This issue includes the following articles:

Brian Sloan: The 'Disinherited' Daughter and the Disapproving Mother (24/2016)

This paper is a case note on Ilott v Mitson [2015] EWCA Civ 797. The judgment concerns the appropriate remedy following a successful claim by an estranged adult daughter under the Inheritance (Provision for Family and Dependants) Act 1975. The charities who were named in the mother’s will have been granted permission to appeal to the Supreme Court.

Marc Moore: A Necessary Social Evil: The Indispensability of the Shareholder Value Corporation (25/2016)

This symposium paper critically evaluates the developing 'Post-Shareholder-Value' ('PSV') paradigm in corporate governance scholarship and practice, with particular reference to Professor Colin Mayer's influential theory of the corporation as a unique long-term "commitment device". The paper's positive claim is that, while evolving PSV institutional mechanisms such as Benefit Corporations and dual-class share structures are generally encouraging from a social perspective, there is cause for scepticism about their capacity to become anything more than a niche or peripheral feature of the US public corporations landscape. This is because such measures, in spite of their apparent reformist potential, are still ultimately quasi-contractual and thus essentially voluntary in nature, meaning that they are unlikely to be adopted in a public corporations context except in extraordinary instances. The paper's normative claim, meanwhile, is that while in many respects the orthodox shareholder-oriented corporate governance framework may be a social evil; it is nonetheless a necessary evil, which US worker-savers implicitly tolerate as the effective social price for sustaining a system of non-occupational income provision outside of direct state control. Accordingly, pending fundamental reform of the broader social-institutional context to the shareholder-oriented corporation, the key features of the evolving PSV governance model should remain quasi-contractual as opposed to being placed on any sort of mandatory regulatory footing.

Federica Paddeu: Use of Force Against Non-State Actors and the Circumstance Precluding Wrongfulness of Self-Defence (26/2015)

The right of self-defence against non-State actors is increasingly invoked and accepted in the practice of States. However, the recognition of this right must overcome a fundamental obstacle: that of explaining why the rights of the host State, in particular its right of territorial sovereignty, is not infringed by the self-defensive force used within its territory. In practice, States invoking self-defence against non-State actors rely on the involvement of the host State with those actors to justify the use of force in that State’s territory. It is not clear, from a legal standpoint, how to rationalize the fact of involvement as a form of legal justification. For some, involvement amounts to attribution. For others, involvement is a form of complicity. For others still, involvement may entail a breach of the host State’s due diligence obligation to protect the rights of other States in its territory. All of these solutions are deficient in some way, and have failed to receive generalized endorsement. This article considers whether there may be a different, as yet neglected, solution: self-defence as a circumstance precluding wrongfulness. The article shows that this is not a perfect solution either, since positive law remains uncertain on this point. Nevertheless, it is a solution that may provide a better normative framework for the development of the law of self-defence against non- State actors.

Gregory Shaffer & Michael Waibel: The (Mis)Alignment of the Trade and Monetary Legal Orders (27/2016)

Following the catastrophe of the Great Depression and World War II, two separate, but interrelated international legal orders arose, one for international monetary matters, and the other for international trade. Since every transaction in the cross-border sale of goods, outside of barter, involves both a movement of goods and a movement of money, these two orders intersect. This interface poses challenges for the coordination and settlement of two distinct areas of international and national law and policy, governed by two different international organizations that work with different government departments, which departments, in turn, are staffed by professionals with different disciplinary backgrounds and policy priorities and who are pressed to be responsive to different economic constituencies. The book chapter assesses the implications of the coordination and alignment of these two legal orders for three important issues confronting the world economy today. First we address the close alignment of the two legal orders on the issue of balance of payments, where trade restrictions are introduced on balance of payments grounds. We next assess their relative misalignment as regards exchange rates in which there is considerable contestation over potential government manipulation of exchange rates that affect trade competitiveness, posing the threat of “currency wars.” We then address their potential conflict regarding capital controls and the liberalization of financial services under the GATS, its Annex on Financial Services, and a web of plurilateral and bilateral preferential trade agreements. We conclude regarding the reasons for and implications of variation in the alignment of the monetary and trade legal orders in addressing these three critical regulatory issues.

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