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Wednesday, 17 November 2021

Cambridge Faculty of Law Legal Studies Research Paper SeriesThe Faculty has published Volume 12 Number 7 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Steve A. Bank and Brian R. Cheffins: Corporate Law’s Critical Junctures (25/2021)

What accounts for substantial legal change? With corporate law, many think a stock market crash is key. But not all crashes lead to reform. So, what else is necessary? This paper uses a “critical junctures” model borrowed from social science to explain when and why major corporate law change happens. The model indicates that a combination of a lengthy period of depressed share prices and a perception that business wrongdoing was integrally related to the slump are required to create the window of opportunity for significant and enduring reform. It follows that the COVID-19 pandemic is unlikely to serve as a catalyst for major changes to corporate law.

Sarah Nouwen and Wouter Werner: Gezina van der Molen (26/2021)

As one of many portraits collected in Immi Tallgren’s eye-opening portrait gallery of (forgotten) women in International Law, this chapter paints a picture of Gezina van der Molen. Contrary to many of the women discussed in this book, Van der Molen was already recognized as a significant actor in the world of international law and relations in her day. In many of her roles she was the first woman in a man’s world: the first woman to obtain a doctorate at the Free University of Amsterdam; the first female professor at that university; the first woman to be appointed as a member of the Permanent Court of Arbitration. For Van der Molen, it was not so much the positions that were important, but the work she could do through those positions – work that she had also pursued as a resistance fighter in the Second World War and in various social groups. This work was initially heavily inspired by the religious and moral principles of the church to which she belonged: the Neo-Calvinist. But her increasing encounter with plurality created a dilemma that still confronts international lawyers today: given that there are many different readings of what justice requires, who should be able to determine its meaning in concrete circumstances? In one prominent role, that of Chairwoman of the ‘Committee for War Foster Children’, it was Van der Molen who was to a large extent responsible for deciding just that. It has been her insistence on equality without wanting to recognize cultural differences as being legally relevant that has turned her into a pioneer who cannot be celebrated.

Catherine Barnard: Retained EU law in the UK Legal Orders: Continuity between the Old and the New (27/2021)

Retained EU law is an unusual and multi-headed beast which lawyers and practitioners are still trying to understand. In this working paper I try to explain and analyse the concept and its position in the legal hierarchy of norms – all against the backcloth of renewed uncertainty caused by Lord Frost’s speech in September 2016 suggesting that retained EU law is due a rethink, just 9 months after it formed part of the statute book.

David Erdos: Assessing UK Data Protection Reform in Transnational Context: What New Direction? (28/2021)

This paper analyses the post-Brexit reforms to UK data protection put forward in Data: A New Direction. It is found that they are wide-ranging and significant but generally not radical. The great bulk of the proposed substantive changes to data protection (although not the most far-reaching suggestions concerning either e-privacy or automated decision-making) could be plausibly justified under the restrictions regime set out in the General Data Protection Regulation (GDPR). The reforms to the integrity duties would be deeper and pose some risk of reducing ʻaccountabilityʼ to formalistic theatre even when high risk processing is underway. Nevertheless, in principle their basic structure remains compatible with Data Protection Convention 108+ (DPC+). Proposals to shift the ICO away from a de jure focus on upholding data protection rights are difficult to square even with the DPC+. De facto the ICO is not acting as an effective enforcer of data subject rights even today, but these proposals would entrench and further this troubling reality. This points to a critical problem with the initiative, namely, its lack of balance vis-à-vis the interests of the data subject. A reform package which sought to marry more robust and accountable enforcement for individuals with some liberalisation of the substance and process of data protection would offer a better way forward.

Henning Grosse Ruse-Khan: The Role of Customary International Law in Intellectual Property Protection Beyond Borders (29/2021)

This paper considers the role of customary international law for the protection of intellectual property (IP) beyond borders. As an area where standards of protection are primarily, if not exclusively, governed by treaty law there seems to be little role left for custom. The analysis shows that this holds true for principles or rules committing states to a particular form of protecting the rights of foreign IP owners. However, the interpretation, application and enforcement of these rules is informed by other areas of public international law, including those governed by custom. After reviewing this often neglected role of customary international law for IP protection in general, the paper focuses on the customary right to regulate and its role in neighbouring areas of international economic law - in particular the protection fo foreign investments. Exploring the contours and limits of this right, the main research question then is whether – and if so, how – this right applies to treaty commitments in relation to the protection of IP rights. I conclude that despite a complex web of treaty-based rules, there is usually no specific evidence that the state parties intended to ‘contract out’ of the right to regulate - an aspect further confined by reference to this right in the Doha Declaration on TRIPS and Public Health. A broader point is to emphasise custom as a necessary contextual factor of the environment within which international IP law operates: it is a relevant element simply because coordinating protection beyond borders is often relying on the functionality and tools of international law.


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