Legal Studies Research Paper Series Vol. 9, No. 9

The Faculty has published Volume 9 Number 9 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Zoe Adams, Louise Bishop, Simon Deakin, Colin Fenwick, Sara Martinsson Garzelli & Giudy Rusconi: The Economic Significance of Laws Relating to Employment Protection and Different Forms of Employment: Analysis of a Panel of 117 Countries, 1990-2013 (36/2018)

This paper presents findings from analysis of a dataset of labour laws, based on the Centre for Business Research Labour Regulation Index (CBR-LRI), which has recently been extended to cover 117 countries and the period from 1970 to 2013. The dataset shows that laws regulating different forms of employment (DFE), including part-time work, fixed-term employment and agency work, have become significantly more protective over time, in particular since the late 1990s. Employment protection laws (EPL), covering individual dismissal, collective consultation and codetermination rights, have become steadily more protective since the 1970s. Europe has seen a decline in the level of EPL since the onset of the sovereign debt crisis in 2008, but this trend is small, on average, by comparison to earlier increases in protection beginning in the 1970s, and has not been replicated in other regions. Time-series econometric analysis using non-stationary panel data methods suggests that strengthening worker protection in relation to DFE and EPL is associated with an increase in labour’s share of national income, rising labour force participation, rising employment, and falling unemployment, although the observed magnitudes are small when set against wider economic trends.

Mark Ellitt, Alison L. Young & Jack Williams: The Miller Tale: An Introduction (37/2018)

The judgment of the UK Supreme Court in R (Miller) v Secretary of State for Exiting the European Union — in which the legal capacity of the Government to trigger the UK's withdrawal from the EU under Article 50 of the Treaty on European Union was tested — is of fundamental legal, constitutional and political significance. The Supreme Court’s judgment discussed the relative powers of Parliament and the Government, the relationship between Westminster and the devolved legislatures, and the extent to which the UK’s membership of the EU had changed the UK constitution prior to departure from the EU, in addition to possible further changes to the constitution even after departure. It also provided further evidence of the emerging role of the UK’s Supreme Court as a constitutional court, despite the lack of a codified constitution in the UK. This paper, which forms the first chapter of a collection of essays on the Miller case, introduces the case, places it in context and preliminarily explores its legal and constitutional significance. In particular, the chapter sets out and examines the arguments presented to the Divisional Court and the Supreme Court and the judgments of those courts, as well as considering a number of notable aspects of the litigation.

Paul Daly: Reprendre le contrôle : ennuis et ironies (The Ironies of 'Taking Back Control') (38/2018)

This text is based on the keynote address for a conference held at the Université de Montréal on March 29, 2018 to mark the first anniversary of the notification by the UK government of its intention to leave the European Union pursuant to Article 50 TEU.

Taking as my theme the notion that Britain is 'taking back control', I identify several ironies about the 'control' that has supposedly been 'taken back' and the way in which it will be distributed between the organs of government.

My goal is not to question the outcome of the referendum, or even to suggest that prior warning of these ironies would have convinced a majority of voters to REMAIN in the EU. Nonetheless, 'taking back control' is proving very difficult in practice, a lesson that other nationalist, populist and isolationist political movements would do well to learn.

Neil H. Andrews: Breach of Contract: A Plea for Clarity and Discipline (40/2018)

The author identifies an `anti-termination’ bias in the judicial classification of terms (and in some legislative intervention). The problems engendered by this bias are, first, a weakening of the innocent party’s protection in the face of breach; weakening of commercial discipline overall in the fulfilment of contractual undertakings; and the inability to advise with confidence on whether breach in particular instances will permit, or has permitted, a party to terminate the contract for breach. As the author concludes, the anti-termination bias is a denial of “bright-line” protection of the innocent party and it promotes an overall slackening of discipline by failing to insist on strict compliance with contractual obligations.

Neil H. Andrews: Improving Arbitration: Responsibilities and Rights (41/2018)

There are two main perspectives. The first concerns the central responsibilities of the non-parties (lawyers, arbitrators, institutions, national legal systems and the global system) to promote just and effective arbitration. As for the parties’ rights, these arise at three main stages: (i) pre-commencement: this is the right to select arbitration; (ii) process rights: this is the right to obtain a confidential, speedy, efficient and just conduct of the reference; (iii) the outcome right: each party has the right to receive an award which is binding and, if a claim is upheld, an award which is enforceable.

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