Legal Studies Research Paper Series Vol. 8, No. 1

The Faculty has published Volume 8 Number 1 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Michael Waibel & Trina Malone: Constitutional Protections Afforded to Individuals Subject to an Extradition Request (61/2016)

Extradition concerns the official surrender by a state ('the requested state') of an alleged offender or convicted criminal to another state ('the requesting state') for the purpose of prosecuting or punishing that individual in relation to crimes within the jurisdiction of the requesting state. States are under no obligation under general international law to extradite alleged offenders to another country. Obligations to extradite, subject to important exceptions, exist only pursuant to hundreds of extradition treaties currently in force. Whether a state can extradite an individual is ordinarily a matter for national constitutional law in the first instance.

This entry examines the constitutional protections for individuals in extradition requests. Some of the most important individual rights and safeguards applicable in extradition proceedings find expression in the constitutions of states, including those that may prevent an extradition from being carried out, or which require the authorities of the requested state to seek and obtain certain assurances from the requesting state before any extradition can take place. A survey of national constitutions reveals that the most prevalent constitutional protections relate to the decision-making process in the requested state; the risk of ill treatment or an unfair trial in the requesting state; conduct for which an alleged offender may not be extradited; and the protection of nationals from extradition in any or certain circumstances.

Valia S.G. Babis: State Helps Those Who Help Themselves: State Aid and Burden-Sharing (62/2016)

Since the beginning of the financial crisis, various forms of public support have been employed to provide financial assistance to troubled banks. Any such operation involving public funds must comply with EU State aid rules in order to prevent competitive distortions between banks and member states. This paper begins by examining the interaction between State aid and the Bank Recovery and Resolution Directive (BRRD) and demonstrates the continuing importance of State aid approval both in and outside resolution. The paper continues by focusing on burden-sharing as a requirement for State aid approval and examines the Commission’s approach to burden-sharing in State aid cases to date. Against this background, the paper continues by considering the CJEU’s judgment in Kotnik and Others (Case C-526/14). The paper comments on the CJEU’s findings and assesses the potential future impact of the judgment. The main conclusions are that legal certainty provided by the CJEU is to be welcomed, that the judgment is unlikely to affect the Commission’s established approach, and that the judgment could have an impact on future cases on public support to the banking sector.

Brian Sloan: Primacy, Paramountcy, and Adoption in England and Scotland (63/2016)

Article 3(1) of the United Nations Convention of the Rights of the Child (‘UNCRC’) requires children’s ‘best interests’ to be ‘a primary consideration’ in actions concerning them. Article 21, however, mandates States that recognise the concept of adoption to ensure that ‘best interests’ ‘shall be the paramount consideration’. English and Scots adoption law have both moved from treating best interests as merely the ‘first’ consideration to treating them as the ‘paramount’ consideration. This ostensibly aligned both systems with the UNCRC, but raised issues regarding the child’s relationship with her birth family, also protected by the Convention. This chapter analyses the relationship between ‘primacy’ and ‘paramountcy’ within the UNCRC, before considering the implications of the shift in the governing principle in domestic law.

Paul Daly: Administrative Law: Characteristics, Legitimacy, Unity (2/2017)

Over the last half century, courts around the common law world have transformed the principles of judicial review of administrative action. Administrative law’s scope and depth have increased dramatically. Increasingly intrusive grounds of review – including for factual error and, in some jurisdictions, breach of substantive legitimate expectations – are available against a wide variety of public and private actors performing governmental functions. Assessing the legitimacy of this judicial creativity has been an important concern of administrative lawyers. However, an assessment of legitimacy cannot be performed without an understanding of the nature of administrative law.

I will argue in this paper, building on previous work, that administrative law is marked by three characteristics. It is open, contestable and dynamic. These characteristics give the body of administrative law doctrine developed by judges a unique nature which must be understood prior to assessing its legitimacy.

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