Legal Studies Research Paper Series Vol. 12, No. 5

The Faculty has published Volume 12 Number 5 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Stephanie Palmer & Stevie Martin: Public Health Emergencies and Human Rights: Problematic Jurisprudence Arising from the COVID-19 Pandemic (14/2021)

The COVID-19 pandemic has presented many issues for courts, often requiring immediate consideration and swift delivery of reasons. Nevertheless, experience has taught us that, in times of crisis, heightened vigilance must be afforded to the protection of individual rights. Two judgments delivered at the peak of the pandemic illuminate the fragility of rights in the face of wider societal concerns. Both cases contain statements of purported principle which are legally dubious and, if left unqualified, have the potential to fundamentally dilute the protections afforded by the European Convention on Human Rights.

Bobby V. Reddy: Up the Hill and Down Again: Dual-Class Stock and the UK Listing Review (16/2021)

The final recommendations of Jonathan Hill’s UK Listing Review were published on 3 March 2021. The headline recommendation was that dual-class stock should be permitted on the premium-tier of the London Stock Exchange. The aspiration is to encourage more high-quality UK equity listings, particularly of high-growth tech-companies, for which dual-class stock is especially beneficial. Dual-class stock allows founders to list their firms, and retain majority-control, while holding significantly less of the cash-flow rights in the company. However, in an attempt to protect and placate institutional shareholders, who are generally sceptical of dual-class stock, various conditions have been recommended. This article finds that those conditions comprise a curious mix, some of which are too relaxed and do not substantially protect public shareholders, and some of which are too severe and could deter the very firms the proposals are intended to attract, resulting in dual-class stock in name but not in substance.

Louise Gullifer: The Financing of Micro-Businesses in the UK: The Current Position and the Way Forward (17/2021)

Micro-businesses, the very smallest business enterprises in the world, are the most numerous and are of great importance to any economy, developed or developing. Globally, there is considerable evidence of a large financing gap in relation to these businesses. The author has previously mapped the reasons for this gap, identified problems caused by the unique characteristics of micro-businesses, and suggested some legal and institutional responses. This chapter takes that analytical framework and applies it to the financing of micro-businesses in the UK. Drawing on the most recent government and other data, it describes the current access to finance in these jurisdictions, considers what solutions, if any, exist to the potential problems previously identified and discusses possible ways forward.

Louise Gullifer, Henry Chong & Hin Liu: Client-Intermediary Relations in the Crypto-Asset World (18/2021)

In a world where financially valuable assets are increasingly being stored in digital form, questions arise as to the legal categorisation of such assets. The question of whether crypto-assets can constitute property has been the subject of some recent litigation and thus legal analysis. 

This paper argues that the most likely (default) relationship between a crypto-asset intermediary and a client is one of trustee and beneficiary, although there are also other possible legal characterisations, namely outright title transfer, ‘quasi-bailment’, and mere obligations sounding in contract. Ultimately, in a particular case, the legal characterisation of the relationship, as well as the precise obligations undertaken by the intermediary, will depend on the client-intermediary agreement itself. In many cases it is difficult to determine whether a particular client-intermediary agreement gives rise to one type of legal relationship or another, but all turns on the interpretation of the agreement in accordance with settled principles of construction and characterisation. Furthermore, it is uncertain whether the law will develop in a way such that bailment analysis will be accepted in the context of crypto-assets, for the objections relating to possession, transmission and (possibly) exclusivity would need to be surmounted before the concept can be applied. In the final analysis, it is concluded that the most likely type of legal relationship that would appear in practice is the trust, because this accords with the objective intention of the parties who wish to have commercial certainty, and (possibly) wish to comply with the relevant regulatory requirements within the particular jurisdiction in question.

Matthew H. Kramer: Hart on Legal Powers as Legal Competences (19/2021)

This paper first recapitulates the objections by H.L.A. Hart to the ways in which John Austin’s command model of law obfuscated the importance and the very existence of power-conferring laws. Although those objections are familiar in the world of contemporary legal philosophy, their insightfulness is highlighted here because they contrast so sharply with Hart’s own neglect of power-conferring laws at some key junctures in his theorizing. In the second half of this paper, I ponder a few of the junctures where Hart failed to heed the admonitions which he had so deftly leveled against Austin.

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