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Thursday, 12 July 2018

Cambridge Faculty of Law Legal Studies Research Paper SeriesThe Faculty has published Volume 9 Number 10 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Paul Daly: La bonne foi et la common law : L’arrêt Bhasin c. Hrynew (Good Faith and the Common Law: The Supreme Court of Canada's Decision in Bhasin v Hrynew) (39/2018)

In this comment, I place the Supreme Court of Canada's 2014 decision in Bhasin v Hrynew on good faith in contract law in the broad context of common law thinking on the role of the courts.

Properly understood, Bhasin does not represent a radical break with the past. Rather, it represents a principled development of the common law, in an incremental fashion.

Indeed, it would be more accurate to see Bhasin as developing a negative obligation not to act in bad faith rather than a positive obligation to act in good faith. The reluctance in Bhasin to impose positive obligations is entirely consistent with the long-standing reluctance of common-law courts to require individuals to act in a particular way.

Accordingly, it would be quite wrong to see in Bhasin a drift towards civilian modes of thinking about contractual obligations -- the law of Quebec is relied upon only to support the conclusion that the proposed development of the law would not upset the settled understandings of parties to commercial relationships. Instead, Bhasin should be seen for what it is: a masterpiece of principled, incrementalist common-law reasoning which seeks to avoid radical change in the law.

Neil H. Andrews: Mediation: International Experience and Global Trends (42/2018)

Mediation involves neutral third party intervention to facilitate settlement of disputes (Section II). It is on the rise (Section IV), partly because it is encouraged by Government in various ways (Section V) and by the European Union (Section VI). Detailed global investigation of mediation (see notes 1 and 2, and Sections VII and VIII) reveals general support for the “voluntary principle” (Section IV), namely, (1) parties should not be compelled to mediate; (2) at all times the process should be under their joint consensual control; and (3) the parties must be completely free to agree whether to settle and on what terms. Including endorsement of the voluntary principle, the author proposes six fundamental principles within this field(Section III).

Rumiana Yotova: Compliance with Domestic Law: An Implied Condition in Treaties Conferring Rights and Protections on Foreign Nationals and Their Property? (43/2018)

Non-compliance with domestic law in the making of investments is increasingly invoked as a defence by states against claims in international arbitration. A number of bilateral investment treaties (BITs) contain varying formulations of express clauses requiring that foreign investments are made in accordance with the domestic law of the host State. These have been used by arbitrators as anchors for assessing the compliance of investments with domestic law and denying them all international protections. While some tribunals have inferred that compliance with domestic law is an implied condition for granting international protection to investments even in the absence of treaty language to that effect[1] or indeed, of an international treaty all together, others have required express legality clauses. These divergent approaches raise two pertinent interpretative questions. First, whether compliance with domestic law could or should be read as an implied condition when interpreting BITs and more broadly, in international treaties conferring rights on foreign nationals on the territory of the host State in the absence of express language to this effect? Second, if the answer to the first question is affirmative, how should such treaties be interpreted and applied in practice, focusing in particular on what legal consequences should be drawn in cases of non-compliance with domestic law where the treaty is silent on this point. This chapter will argue that an implied condition of compliance with domestic law is to be read into international treaties conferring rights and protections on foreign nationals, as a general principle of treaty interpretation emanating from the Lotus principle and the principle of good faith, and that this has important implications for the applicability of the treaties in question to tainted investments.

Stelios Tofaris: The Negligence Liability of Local Authorities for Failure to Protect Children from Abuse: Where to Draw the Line? (44/2018)

When should local authorities be liable in negligence for failure to protect children from abuse by third parties? The answer is of wide importance, but so is the way of reaching the answer. This makes CN v Poole Borough Council (2017), now before the Supreme Court, destined to be a landmark case in the law on the negligence liability of public authorities. The paper discusses the Court of Appeal's judgment, seeking to identify some of the key questions which arise in this context and to examine possible ways of answering them.


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