Legal Studies Research Paper Series Vol. 9, No. 15

The Faculty has published Volume 9 Number 15 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Sarah Nouwen: Is There Something Missing in the Proposed Convention on Crimes Against Humanity? A Political Question for States and a Doctrinal One for the International Law Commission (52/2018)

Part of a special issue on the proposed Convention on the Prevention and Punishment of Crimes against Humanity in the Journal of International Criminal Justice, this essay does not comment on what is in the draft Convention, but on what is not in it: consideration of the demands of a negotiated settlement to end armed conflict or political oppression. In the context of a negotiated settlement, the essence of transitional justice is the pursuit of justice in a way that facilitates the simultaneous pursuit of peace and reconciliation. Reading the draft articles and commentaries through this transitional-justice lens, the essay reflects upon the proposed Convention’s implications for attempts to transition from conflict to peace and from oppression to democracy. With the aim of opening up a debate, it poses a political question to states — essentially about the meaning of justice and who should decide on that meaning — and a doctrinal question to the International Law Commission — about the current status of amnesties in international law.

Brian R. Cheffins: Corporate Governance and Countervailing Power (54/2018)

The analysis of corporate governance has been a one-sided affair. The focus has been on “internal” accountability mechanisms, namely boards and shareholders. Each has become more effective since debates about corporate governance began in earnest in the 1970s but it is doubtful whether this process can continue. Correspondingly, it is an opportune time to expand the analysis of corporate governance. This article does so by focusing on three “external” accountability mechanisms that can operate as significant constraints on managerial discretion, namely governmental regulation of corporate activity, competitive pressure from rival firms and organized labor. A unifying feature is that each was an element of a theory of “countervailing power” economist John Kenneth Galbraith developed in the 1950s with respect to corporations, an era when external accountability mechanisms did more than their internal counterparts to keep management in check.

Findlay Stark & Stefanie Bock: Preparatory Offences (64/2018)

In this paper, we first provide a definition of ‘preparatory offences’, which is not a formal category in English or German criminal law. At the most general level, preparatory offences – as we identify them – criminalise conduct perceived to carry with it the risk that, at a later time, a completed crime will be committed (sometimes involving the person who perpetrates the preparatory offence, other times not). Preparatory offences move criminal responsibility from the actual occurrence of harmful conduct (or an attempt to bring it about) back to the planning and preparation stage of a crime. We contend that the main justification for such offences is the management of the risk of completed offences (i.e. actual harm in the form of violation of legal goods protected by the criminal law). We then defend a number of constraints on the criminalisation of preparatory offences. In our view, both English and German criminal law fall short, to differing extents, of respecting these constraints. The final part of the paper deals briefly with the punishment of preparatory offences.

Nicholas McBride: The Future of Clean Hands (65/2018)

This paper introduces the concept of a supererogatory remedy (a remedy which no one has a right to, and which it is not necessary to award) and seeks to argue that the equitable defence of clean hands has a distinctive role to play in determining whether such a remedy will be granted. As such, the defence of clean hands can be distinguished from the defence of illegality, with which it is often confused.

Nicholas McBride: Patel v Mirza: Structured Discretion or Range of Factors? (66/2018)

This short paper analyses Lord Toulson's judgment in Patel v Mirza [2016] UKSC 42, and argues that that judgment is better analysed as ruling that in cases where a defence of illegality is advanced, the courts should adopt a 'structured discretion' in determining whether to allow the defence rather than considering a range of factors to see whether or not the defence should be allowed.

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