Legal Studies Research Paper Series Vol. 10, No. 5

The Faculty has published Volume 10 Number 5 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Matthew H. Kramer: On No-Rights and No Rights (13/2019)

As is well known to everyone familiar with the analytical table of legal and moral relationships propounded by the American jurist Wesley Hohfeld, one of the eight positions in the table is that of the no-right.

In most discussions of Hohfeld’s overall framework, no-rights have received rather little attention. Doubtless, one reason for the relative dearth of scrutiny is that Hohfeld devised a hyphenated neologism to designate no-rights. Each of the other positions in the Hohfeldian table is designated by a term with a solid grounding in everyday discourse and juristic discourse, whereas the hyphenated term “no-right” – in contrast with the unhyphenated phrase “no right” – does not have any comparable grounding either in ordinary discourse or in juristic discourse. That neologism is almost never employed by anyone outside the confines of discussions of Hohfeld’s categories, and it is often not employed even within those confines. Notwithstanding the enormous amount of philosophical and juristic attention bestowed on Hohfeld’s analytical framework since its elaboration in the second decade of the twentieth century, the term “no-right” has found little favor in philosophical or juristic circles. Moreover, on the rather rare occasions when the term is used rather than merely mentioned, it is almost always misused. The exploration of the correct use of that term in the first half of this paper may seem rather fussy, but the importance of that exploration for a satisfactory understanding of legal and moral relationships will become apparent in the second half of the paper.

Henning Grosse Ruse-Khan: Protecting Intellectual Property through Trade and Investment Agreements: Concepts, Norm-setting, and Dispute Settlement (14/2019)

This paper attempts to offer a birds-eye, comparative view on two different expansionist tendencies in international IP law and policy. Looking at IP protection via IP chapters in FTAs on the one hand and by means of international investment law on the other, we can observe a common trend towards occupying additional regulatory space – albeit through different routes. The paper reviews these trends from a conceptual perspective, and by comparing norm-setting and dispute settlement in the respective areas. It finds that at a meta level, the traditional form of regulating IP in international treaties expands in form of ever-more detailed and comprehensive commitments which contracting states then have to implement (or perhaps better: import) in(to) their domestic IP laws. Since these expansions concern the traditional domain of IP laws as mechanisms that regulate private law relations, they are conceptually different from investment law as a tool primarily designed to protect against state interferences. By protecting IP rights as an investment asset, international investment law makes a whole new (or perhaps better: distinct) set of commitments from another area of global norm-setting available to IP owners. From among these commitments, the principal tool for expansion is ISDS as a litigation mechanism that directly benefits IP owners once they qualify as investors. ISDS invites IP owners to engage in creative lawyering that re-packages investment protections against state interference into tools that allow IP-owners to challenge unfavourable domestic IP rules which determine the nature and scope of the private rights IP owners rely on vis-à-vis competitors and users. Overall then, the distinct routes for regime expansion show that while FTA-based IP protection grows by means of norm-setting, investment protection for IP rights is essentially enlarged through ISDS as a private dispute settlement tool with public consequences.

Michael Waibel: Decolonization and Sovereign Debt: A Quagmire (15/2019)

The phenomenon of State succession is one of the most complex, challenging and politicised areas of international law and policy — covering diverse questions such as membership in international organizations, nationality, state responsibility, treaties, property, debts and state archives. A particularly controversial aspect of decolonization after World War II was its effect on private property. During decolonization after World War II, state succession into debt became torn between the theory of universal succession and the clean-slate theory. The theory of universal succession and the clean-slate theory are extreme positions on a spectrum that came to the fore at the height of decolonisation in the 1960s and 1970s. The tension between two stylizes schools on state succession into debt is the subject of this paper.

Michael Waibel: Fair and Equitable Treatment As Boilerplate (16/2019)

The super-norm in the investment treaty regime is the treatment standard of fair and equitable treatment (“FET”) — a standard that has no analogue in the trade regime. FET features in nine out of ten investment treaties. The paper contends that fair and equitable treatment provisions in investment treaties are a prominent example of boilerplate provisions. It argues that the character of FET as boilerplate suggests that investment tribunals ought to adopt a modified interpretive stance compared to negotiated provisions in treaties. Boilerplate provisions should be interpreted using the contra proferentem principle — with ambiguities resolved against the drafter of the FET provision — and considering the reasonable expectations of the contracting state that received a draft boilerplate FET provision from its counterparty.

Section II explains the dataset and this article’s text-as-data-methodology. Section III sets out the main types of FET provisions, drawing on the existing literature. Section IV examines the clusters that emerge from this paper’s text-as-data methodology and considers FET as a social network. Section V contends the FET standard is a prominent example of a boilerplate provision. Section VI argues that the character of FET as boilerplate suggests that investment tribunals ought to adopt a modified interpretive stance compared to negotiated provisions in treaties.

Peter Turner: What Delimits Equitable Relief from Forfeiture? (17/2019)

SHORT steps in a sequence of cases over just forty years have changed the dominant English understanding of equitable relief from forfeiture almost entirely. Each step has been volitional, yet taken without the judges evidently intending such large change or considering whether stare decisis permits it. That this has befallen a body of law that acquired its modern form 350 years ago is worrying.

Relief against forfeiture is routinely granted in relation to leases and mortgages. But relief in relation to licences and contractual rights has become controversial through the erroneous belief that equitable relief from forfeiture would disrupt such ordinary – and commercially-important – contracts. Vauxhall Motors Ltd v Manchester Ship Canal Co. Ltd [2018] EWCA Civ 1100; [2019] 2 W.L.R. 330 makes clear the issues involved and the legal cul-de-sac to which this misunderstanding leads.

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