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Monday, 28 November 2016

Cambridge Faculty of Law Legal Studies Research Paper SeriesThe Faculty has published Volume 7 Number 12 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Eilis Ferran: The UK as a Third Country Actor in EU Financial Services Regulation (47/2016)

Unless it remains in the single market via membership of the EEA or is able otherwise to negotiate special access terms, after Brexit the UK will have to fall back on the third country provisions of EU financial services regulation. This paper examines the complexities of the current Union approach to the treatment of third countries and considers the likelihood of Brexit smoothing the progression towards a more unified EU system. The paper also considers what the evolution of the EU’s treatment of third countries is likely to mean for the UK as it seeks to negotiate continued access to the EU market. Finally, the paper explores new opportunities for the UK to innovate in regulatory design without impairing equivalence or undermining its commitment at the international level to global regulatory convergence.

Stuart Wallace & Conall Mallory: Applying the European Convention on Human Rights to the Conflict in Ukraine (48/2016)

The ‘annexation’ of Crimea by the Russian Federation and the ongoing conflict in Eastern Ukraine have resulted in widespread human rights abuses. Both Ukraine and the Russian Federation are signatories to the European Convention on Human Rights and the Convention should apply within the territory and to the conflict. However, recent applications to the European Court of Human Rights reveal a great deal of confusion over which State bears responsibility for protecting human rights in different parts of Ukraine. This article seeks to shine a light on this problem presenting a deep analysis of the European Court of Human Rights’ jurisprudence and discussing how it applies to both the conflict in Eastern Ukraine and ‘annexed’ Crimea. It addresses a number of salient issues such as whether either State bears responsibility for the actions of non-state actors and armed groups in Eastern Ukraine and whether the legality of the ‘annexation’ has any bearing on the human rights obligations of each State? The article presents a detailed critique of recent judgments from the European Court of Human Rights arguing that the jurisprudence of the Court has created a bewildering degree of complexity and uncertainty as to the obligations of each State and discussing the practical implications of this uncertainty.

Richard Ekins & Christopher F. Forsyth: Judging the Public Interest: The Rule of Law vs. The Rule of Courts (49/2016)

Six days after the general election in May this year, the Cabinet Office released the Prince of Wales’s correspondence with ministers, a course of action which was required by the Supreme Court judgment in Evans v Attorney General. The content of the letters has attracted much public attention. But what has largely escaped notice is the remarkable nature of the judgment itself, which is a striking instance of judicial overreach. This paper shows how the judgment compromises the rule of law by undercutting the Freedom of Information Act 2000 (FOIA) and recommends that Parliament act swiftly to overturn the judgment.

Christopher F. Forsyth: The Principle of Privity (50/2016)

One noteworthy aspect of the administration of justice in England is how little coercion is used, especially in litigation against public authorities. If a judge decides in favour of the claimant then it is taken for granted that that finding will take effect (subject to any appeal) and the authorities will obey the law as found by the judge. Every day in the Administrative Court one can thus see public authorities in all their multitudinous forms - Ministers of the Crown, local authorities, police forces, regulatory bodies, etc, etc - accepting without complaint or hesitation the discipline of the rule of law. Here one sees in operation Dicey’s principle that with us ‘...every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen...’, but without any coercion.

Graham Virgo: 'All the World's a Stage': The Seven Ages of Unjust Enrichment (51/2016)

This paper was delivered as a key-note address at the Society of Legal Scholars annual conference at the University of Oxford in September 2016. It reflects on the state of the law of unjust enrichment, with reference to recent decisions of the Supreme Court and the writings of commentators relating to the theoretical foundations of this body of law. Whilst aspects of the judicial interpretation of the law of unjust enrichment are a cause of significant concern, it is clear that the law of unjust enrichment is firmly embedded in English law. Further, despite some commentators arguing that this body of law has no sound theoretical basis and does not operate as a coherent body of law, the papers argues that it is both coherent and theoretically sound. But the paper identifies shortcomings in private law scholarship and in the interaction with the judiciary, and suggests a clearer analysis of what constitutes unjust enrichment. Further, whilst some have argued that this body of law is in its final age and ‘mere oblivion’ beckons, to quote Shakespeare, that body of law called unjust enrichment is mature and remains relevant.


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