Legal Studies Research Paper Series Vol. 12, No. 1

The Faculty has published Volume 12 Number 1 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Federica Paddeu: Military Assistance on Request and General Reasons Against Force: Consent as a Justification for the Use of Force (28/2020)

Is consent a defence or part of the definition of the prohibition of force? The mainstream answer has been to read (non)consent into the definition of the prohibition. The rule would thus prohibit only non-consensual force. In this article, I challenge this approach. This approach implies that there is no general reason against force in international society, that consensual force is not harmful and does not call for justification. And yet, the use of force, whether internal or international, always harms or threatens harm to international peace - the paramount purpose of the United Nations, so that maintaining international peace must count as a general reason against force. Moreover, international actors offer and expect justifications whenever force is used, including with consent. To reflect the general reason against force, the prohibition must exclude consent from its definition. Consent must be recast as a defence.

Jenifer Varzaly: Towards a Unified Approach to Economic Assessment in International Commercial Law Reform (31/2020)

Economic assessment is critical to international commercial law reform in order to ensure law reform efforts are evidence-based and result in economic benefit. Yet, such assessment is seldom undertaken and, when done so, is not uniform in its scope or methodology, nor is it subject to systematic review. This article proposes a set of guidelines in order to address this challenge. While there are both political and technical challenges to law reform efforts and the implementation of a clear framework for assessment, this article aims to provide a first step forward towards creating a unified approach. It does so by proposing a series of guidelines which traverse five key components of any economic assessment undertaking, drawing on international and within country data regarding assessment processes. There is a particular focus on quantitative analysis, replicability, transparency, and continuous improvement, in relation to unifying private international law within the commercial sphere.

David Erdos: The ʻRight to be Forgottenʼ beyond the EU: An Analysis of Wider G20 Regulatory Action and Potential Next Steps (33/2020)

It has been increasingly asserted that data protection can and should enable individuals to exert a degree of control at least ex post over the online dissemination of their personal data. This paper demonstrates that, notwithstanding contrary suggestions in the literature, a concern to implement such a right to be forgotten extends well beyond the EU. Indeed, post-2014 the majority of the eight national DPAs operating in non-EU G20 jurisdictions with established data protection legislation have sought to implement this right through guidance and, in three cases, also enforcement. Whilst not as extensive as the number of countries with statutory supports for such a right, these jurisdictions span three regions and encompass jurisdictions such as Australia and Canada with a similar outlook to the EU. In light of the profoundly globalised nature of the internet, it is suggested that the EU could fruitfully promote greater transnational coordination of this issue. Whilst the G20 is itself ill-suited to this task, the pan-regional Data Protection Convention framework overseen by the Council of Europe as well as the Global Privacy Assembly could play a valuable role here.

Brian Sloan: Forfeiture and the Effect of Section 33A of the Wills Act 1837 (34/2020)

The forfeiture rule is “the rule of public policy which in certain circumstances precludes a person who has unlawfully killed another from acquiring a benefit in consequence of the killing”. Section 33A of the Wills Act 1837 (applicable to deaths on or after 1 February 2012) provides that “where a will contains a devise or bequest to a person who” “has been precluded by the forfeiture rule from acquiring it”, “[t]he person is, unless a contrary intention appears by the will, to be treated for the purposes of this Act as having died immediately before the testator”. On one view, any will is now simply read as if the forfeiting beneficiary has predeceased the testator. As this paper will explain, however, the phrase “for the purposes of this Act” has created unintended complications in the minds of some, with the potential considerably to reduce the impact of section 33A in an undesirable manner. The paper considers whether the problem with the scope of section 33A identified by some scholars is truly present, alongside what the solution to it might be.

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