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Friday, 28 April 2017

Cambridge Faculty of Law Legal Studies Research Paper SeriesThe Faculty has published Volume 8 Number 6 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Sarah Nouwen: The International Criminal Court and Conflict Prevention in Africa (20/2017)

Forthcoming in Tony Karbo and Kudrat Virk (eds.), Towards a New Pax Africana: Making, Keeping, and Building Peace in the Post-Cold War Era, this chapter examines the role of the International Criminal Court in conflict prevention. To that end, it explores three sub-questions. First, what does the ICC have to do with prevention? Second, what does the Court have to do with the prevention of conflict in particular? And finally, even more specifically, what does it have to do with the prevention of conflict in Africa? In reflecting upon these questions, the chapter highlights some of the most frequent assumptions underpinning claims about the ICC and conflict prevention on the continent.

Lionel A. F. Bently et al: The Legal Consequences of Brexit Through the Lens of IP Law (21/2016)

This paper discusses the consequences on the main intellectual property rights (patent, copyright, trade marks and designs) as well as on trade secrets of a hard Brexit, namely an exit of the United Kingdom from the European Union which means that it will not longer be bound by EU law.

Eilis Ferran et al: The Consequences of Brexit for Companies and Company Law (22/2017)

The consequences of the Brexit vote will be felt throughout the legal systems, both in the UK and in the EU. The legal consequences of the Brexit decision and the process which will lead to the withdrawal of the UK, raises numerous questions many of which are in the process of being analysed, and possibly solved. In the field of company law, with respect to cross-border matters, UK companies will be exposed to national laws in the EU States after the Treaty freedom of establishment will not further apply. This may lead to tensions between the two systems of recognition of foreign companies, i,e. the incorporation theory and the seat theory. Foreign companies active in seat jurisdictions may in the future be disqualified if their seat is effectively established in the seat State. Access may become more difficult, not on the basis of company law, but of sectoral regulations. In other part of the regulatory system, such as the rules on cross-border mergers, on rights of shareholders in listed companies, or disclosures to be made, equivalence of rules, as decided by the European Commission, will be the key factor. Additional issues will arise for the cross-border recognition of accounting standards and for the activity of auditors.

Mark Elliott: The Supreme Court's Judgment in Miller: In Search of Constitutional Principle (23/2017)

In R (Miller) v Secretary of State for Exiting the European Union, the Supreme Court of the United Kingdom (a) held that the UK Government had no prerogative power to initiate the formal process whereby the UK will withdraw from the EU and (b) declined to recognise any requirement that the devolved legislatures’ consent be obtained in respect of legislation authorising the Government to commence the withdrawal process. This article critically examines Miller, arguing that the majority’s analysis veers between unwarranted muscularity in relation to the prerogative issue and unnecessary conservatism as regards the devolution issue. The article goes on to argue that while the majority judgment’s restrictive approach to the prerogative may be viewed as a progressive victory for constitutional principle, such an evaluation can be sustained only if a set of relatively traditional constitutional premises are adopted to begin with. The article also contends that the general approach adopted by the majority is problematic, given its willingness to invoke arguments of constitutional principle without adequately engaging with questions about what the pertinent principles are, and argues that such an intellectually lackadaisical mode of constitutional adjudication is to be deprecated.

Christopher Kuner: The Internet and the Global Reach of EU Law (24/2017)

EU law has significant influence on the Internet and parties outside the EU’s territorial boundaries that use it and are affected by it. The Internet has enabled the EU to extend to third countries the application of its fundamental values, including the autonomy of EU law, the rule of law, and fundamental rights. There are many examples of the EU exerting its global reach regarding the Internet, particularly in data protection law, but also in areas such as Internet governance, international agreements, and private international law. This occurs through a variety of mechanisms, including emulation and learning; international negotiation; coercion and conditionality; and blocking recognition of third country legal measures. The EU’s actions in exercising its global reach implicate important normative issues, such as distinguishing between the furtherance of core EU legal values and the advancement of the EU’s political interests; promoting the principles of EU law as universal values; ensuring that EU legal values are upheld in practice; and determining the territorial boundaries of EU law. The influence exercised by the EU carries responsibilities towards third countries, particularly those in the developing world. The Internet may also be influencing EU law, as is shown by the changing role of the Court of Justice.


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