Legal Studies Research Paper Series Vol. 9, No. 13

The Faculty has published Volume 9 Number 13 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Henning Grosse Ruse-Khan: Intellectual Property and International Law (56/2018)

Written for a Handbook on Intellectual Property Research, edited by Irene Caboli and Maria Lilla Montagnani, this paper offers some thoughts on legal research that concerns or applies ‘international law’ concepts, perspectives and methodologies to intellectual property (IP). The idea is to discuss how research questions related to IP can be framed from the standpoint of international law. This begs an initial question: what do we mean by ‘international law’ and how does this relate to IP? The first section tackles these questions by offering a range of possible views on the notion of international (IP) law. Section two then considers how a multi-dimensional conception of international law frames research questions on IP. It also gives some more concrete examples of an international law approach to IP.

Christopher Kuner: Turning the Rule of Law into an English Constitutional Idea (57/2018)

In Opinion 1/15, the Grand Chamber of the Court of Justice of the European Union applied the fundamental right of data protection to a pending international agreement of the EU. In its first ruling on the compatibility of an international agreement with the EU Charter of Fundamental Rights, the Court found that a draft agreement between the EU and Canada for the transfer of airline passenger name record data could not be concluded in its current form, since it was adopted under the wrong legal basis and several of its provisions were incompatible with fundamental rights. This annotation deals with a number of important issues that the Opinion raises, in particular the legal basis for international agreements on data sharing; its implications for the fundamental rights to data protection and privacy; the role that international law played in the Opinion; the use of international agreements and adequacy decisions for data transfers; how the Court dealt with issues of foreign law; and the impact the Opinion may have on the EU’s conclusion of international agreements in the future.

Mark Elliott & Stephen Tierney: Political Pragmatism and Constitutional Principle: The European Union (Withdrawal) Act 2018 (58/2018)

The European Union (Withdrawal) Act 2018 forms the centrepiece of the UK's domestic legal preparations for its departure from the European Union. The Act aims to capture and domesticate large swathes of EU law so as to safeguard legal continuity upon Brexit. This paper examines the process by which the Act was passed by the UK Parliament and its substantive constitutional implications, which are likely to be far-reaching. Membership of the EU has had a monumental impact not only upon the substantive law of the UK, but also upon the development of fundamental constitutional doctrines, principles and practices over more than four decades, affecting our understanding of parliamentary supremacy, the relationship between Parliament and Government, the constitutional authority of the courts and the creation and development of devolved government. The implications of the Act go far beyond the immediate task of retaining and reordering the domestic effect of EU law. The paper assesses the deeper consequences which the Act signifies for four dimensions of the constitution: the rule of law and legal certainty, parliamentary supremacy, the relationship between Parliament and government, and the UK's territorial constitution.

Shona Wilson Stark: Deprivations of Liberty: Beyond the Paradigm (59/2018)

What constitutes a "deprivation of liberty" under Article 5 of the European Convention on Human Rights is very unclear. The courts have employed different tests for determining whether a deprivation of liberty has taken place in different cases. From an examination of the Convention and the case law, the threshold for a deprivation of liberty is much lower than the almost total social isolation of detention in a prison cell. The courts' fixation on the so-called "paradigm" case of containment in a cell has therefore been problematic when considering "non-paradigm" cases such as crowd containment and medical detentions.

The courts have also, it is argued, misunderstood the relationship between Article 5 and freedom of movement under Article 2 of Protocol 4.

This article outlines what the test should be for determining whether a deprivation of liberty has occurred to bring some clarity to this messy area of law.

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