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Friday, 21 February 2020

Cambridge Faculty of Law Legal Studies Research Paper SeriesThe Faculty has published Volume 11 Number 2 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Kathleen Liddell, John Liddicoat & Matthew Jordan: IP Policies for Large Bioresources: The Fiction, Fantasy and Future of Openness (2/2020)

Much research in synthetic biology (SB) and genomics (Gx) is reliant on the use of large-scale collections of biological materials and data, often referred to as ‘biobanks’ or ‘bioresources’. Following substantial investment in the form of time, money, and personnel, some of these bioresources have reached a point where they can be regularly accessed by researchers and can realistically hope to facilitate innovation. At the same time, their maturity brings several challenges including how to promote access, ensure stewardship, and address financial sustainability. All these facets must be managed for on-going utility. Access promotes the likelihood of significant scientific findings and avoids under-utilisation; stewardship earns trust from sample donors and funders; and sustainable sources of income are crucial if the bioresources are to serve as infrastructure (rather than projects) and assist with longitudinal studies. A key part in managing these challenges – much less studied than issues of consent, return of incidental findings, and researchers’ eligibility for access – is the stance taken by large bioresources on intellectual property (IP) and financial conditions of access. Acquisition, ownership and sharing of intellectual property in life sciences is ethically charged, and financial conditions of access are controversial where they preclude or discourage external researchers from using the bioresource. There is limited guidance available for developing such policies in the fields of Gx and SB . Moreover – and this goes to the heart of this chapter – discussion of IP and business models for bioresources is a topic that falls in the shadow of hyperbole about openness.

This chapter aims to bring the issue of IP policies for large bioresources out of the long shadows of rhetoric about openness. It will highlight two fictions: first, that the idea of openness is clearly defined; and second, that organisations are committed to openness. It will also highlight the fantasy that harmonisation of bioresources’ access policies is feasible and desirable. The chapter will conclude by outlining future research to improve openness and intellectual property policies for large Gx and SB bioresources.

Bobby Reddy: Thinking Outside the Box - Eliminating the Perniciousness of Box-Ticking in the New Corporate Governance Code (3/2020)

On 16 July 2018, a new corporate governance code was published. As with previous iterations, it applies on a ‘comply-or-explain’ basis, whereby companies are required to either comply with provisions or explain reasons for non-compliance. However, the new code substantially simplified the previous version of the code in an attempt to attenuate the process of ‘box-ticking’. Box-ticking manifests itself in two ways: firstly, by companies complying with the letter rather than the spirit of the provisions, and, second, by companies not utilising the inherent flexibility to implement the optimum firm-specific governance structures by explaining rather than complying. This article will elucidate the history of box-ticking, and the reasons why companies succumb thereto, since Adrian Cadbury pioneered the concept of ‘comply-or-explain’ in 1992, before proposing an exclusively principles-driven approach to the corporate governance code which would alleviate box-ticking and fulfill the original aspirations of Cadbury over a quarter of a century ago.

Bobby Reddy: Finding the British Google: Relaxing the Prohibition of Dual-Class Stock from the Premium-Tier of the London Stock Exchange (4/2020)

There is a dearth of British tech-companies listing on the London Stock Exchange (LSE), and the LSE lacks a large, innovative tech-company such as Google. The UK-Government, concerned as to the loss of UK tech-companies to foreign acquirors, views the encouragement of UK tech-firm listings as a policy priority. Dual-class-stock, which is currently prohibited from the LSE Main Market’s premium-tier, allows founders to list their firms, and retain majority-control, while holding significantly less of the cash-flow rights in the company. In this article, the potential for dual-class-stock to attract UK tech-company listings will be broached, together with the benefits that such a structure can engender for UK tech-companies and their public shareholders. The risks of dual-class-structures will also be discussed, but it will be shown that in a UK-regulatory context, in relation to high-growth tech-companies, the risks may not be as severe as presumed, and easily moderated through judicious controls.

J S Liptrap: The Social Enterprise Company in Europe: Policy, Theory and Isomorphism (5/2020)

The last decade or so has witnessed a proliferation in the introduction of corporate organisational constructs to facilitate social enterprise across many European jurisdictions. The purpose of this paper is to investigate this phenomenon, and provide an (initial) analytical framework through which the social enterprise company can be understood, both on its own terms and with respect to the traditional business organisation. The paper begins by laying out policymakers’ collective intentions for designing the social enterprise company. From this departure point, the discussion then turns to theorising the social enterprise company’s organisational architecture. The social enterprise company is a hybrid organisational construct, which combines specific legal mechanisms and institutional logics of public, private and social economy organisations together. The social enterprise company is designed to create social value. For this reason it operates according to the principle of publicness. The intention was also for the social enterprise company to be resource flexible and attract altruistic investors and managers. The paper then further extends the theoretical discussion by examining the social enterprise company’s isomorphic prevention mechanisms, which encourage impact fidelity in the context of a conversion or a winding up. The paper concludes with some criticisms and suggestions for improvement.

Mark Elliott: The Fundamentality of Rights at Common Law (6/2020)

The concern of this chapter is with the senses in, and the extent to, which common law constitutional rights can properly be regarded as fundamental. In the context of the United Kingdom’s constitution, that issue is placed in particularly sharp relief by the (at least superficial) tension between very idea of fundamental rights and the notion of a sovereign Parliament that, if it really is sovereign, must be capable of limiting or even abrogating rights, however ‘fundamental’ they might be. A crucial question thus arises about whether rights can in any meaningful sense be regarded as fundamental within in a legal system that adheres to the concept of legislative supremacy.

This, in turn, raises a series of issues that this chapter sets out to interrogate. For instance, it is necessary to consider what it actually means for a right to be ‘fundamental’ and, in particular, whether any meaningful sense of fundamentality can co-exist with the notion of parliamentary sovereignty. This, in turn, raises questions about the ways in which rights can be protected — and thus potentially accorded a pragmatic degree of, if not absolute, fundamentality — without denying the capacity of a sovereign Parliament to restrict or remove them. It also raises questions — which take us into deeper constitutional waters — about the limits of parliamentary authority, and about whether it remains accurate to conceive of common law constitutional rights as inevitably vulnerable to legislative revocation. In this chapter, I argue that while the answers to some of these questions (perhaps inevitably) remain uncertain, due appreciation of the constitutional context within which common law rights and parliamentary sovereignty sit facilitates an understanding of such rights that accords to them a meaningful, if not an unqualified, form of fundamentality.

The analysis set out in this chapter proceeds in three stages. First, the capacity of common law rights to enjoy perceived legitimacy — which, for reasons that will be explained, may in turn bear upon their fundamentality as a matter of legal practice — will be considered. Second, from the discussion concerning legitimacy three sets of distinctions will be distilled, each of which is relevant to the senses in which common law rights might be ‘fundamental’. These distinctions — between what will be termed hard and soft understandings of fundamentality, theoretical and operational senses of the same, and the depth and breadth of common law rights — serve to calibrate more precisely the extent to and the way in which common law rights might properly be considered to be fundamental. Third, the mechanisms through which common law rights’ fundamentality is capable of finding expression within the confines of the UK’s constitutional framework will be considered. Here, the focus will be on the role of courts as reviewers of the legality of administrative action and as interpreters of legislation. This inquiry will be undertaken in principally empirical, as distinct from normative, terms: that is, the purpose of the chapter is not to argue that the UK constitution ought to be conceived of in a particular way so as to furnish a given degree of protection to fundamental rights; rather, the aim is to examine the capacity of the UK constitutional order, as it is presently understood, to protect rights in ways that render them meaningfully ‘fundamental’.


Interested readers can browse the Working Paper Series at SSRN, or sign up to subscribe to distributions of the the e-journal.