Legal Studies Research Paper Series Vol. 13, No. 2

The Faculty has published Volume 13 Number 2 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Eilis Ferran: Shareholder Engagement and Custody Chains (1/2022)

Shareholder engagement has come to be seen to be pivotal to good corporate governance. It is therefore more important than ever for the mechanisms of shareholder engagement to be up to the important task they are meant to perform. Historically, these mechanisms have fallen short because of the capital markets’ necessary dependency on custody chains. Custody chains perform valuable functions but they also create a distance between the company and the end investor from which flows a significant risk of voting preferences and other important information not passing smoothly up and down the chain. Corporate governance is thus at risk of being distorted by process deficiencies.

Changes to the operation of custody changes that were introduced by the EU’s flagship amended Shareholder Rights Directive II became operative in September 2020. This article is therefore among the first to draw on operational impact to assess the significance of these new measures. Experience has already demonstrated that while there have been some important advances, the regulatory changes are struggling on two levels: they have created new uncertainties within national laws; and they have failed to provide the necessary cross-border harmonization of key concepts. These are not issues that can be resolved effectively by technology or market workarounds on their own. There is a continuing need for legislative change to ensure that legal uncertainties do not act as a barrier to further technology-driven market standardization and innovation.

Matthew H. Kramer: Puzzles And Disagreements: Responses to 'Legal Positivism in the Civil-Law Tradition' (2/2022)

This essay is written for a volume Jurisprudence in the Mirror, edited by Michael Green with Georgio Pino and Luka Burazin. It responds to a paper by Cristina Redondo Natella and Giovanni Battista Ratti in which they outline the contemporary debates among legal positivists in Continental Europe and Latin America. Among the main foci of my responses are some matters of meta-ethics, the nature of legal positivism, the distinction between deontic conflicts and contradictions, the property of legal validity, and the character of legal interpretation.

Eyal Benvenisti: The Birth and Life of the Definition of Military Objectives (4/2022)

The forgotten story of the birth and life of the definition of ‘military objectives’ is relevant to the ongoing discussion about the need to adapt the law to asymmetric warfare. This definition, authored by a West-German law professor and a former member of the Nazi party, was driven by a Western effort to privilege regular armies while curbing the actions of guerrilla fighters and exposing their civilian supporters to harm. The Non-Aligned Movement turned the tide by burdening regular armies while exempting irregular combatants from the consequences of disregarding the law. It was only through judicial intervention—grounded in an imagined history of the linear progress of humanity—that civilians on both sides of asymmetric conflicts would ultimately become entitled to receive adequate protection.

Sarah Nouwen: Exporting Peace? The EU Mediator’s Normative Backpack (7/2022)

On the occasion of the launch of the European Law Open, this article analyses two policy documents of the European Union (EU) on its ambitions in peace mediation, to think about what it could mean for European law to be open to the world. Reading these documents – ‘the Concepts’ – through the lens of the theme that I have been assigned for this opening issue – ‘Europe in the world’ – one discerns an outward-looking EU searching for a greater role in the international field of peace mediation. One also sees instances of eurocentrism: a set of assumptions about the superiority of European (or ‘western’) ways of knowing and doing. In these Concepts, the EU envisages sending EU mediators into the world – either to mediate themselves or to support mediation efforts by others. The Concepts also contain increasingly long lists of EU values to be carried along and distributed during peace mediation. But the Concepts do not consider that in the countries where the EU mediator arrives, this backpack filled with normative baggage may bring other associations. Without more explicit recognition of the EU’s obstinate baggage, the EU is unlikely to be an effective peace mediator or, indeed, a credible global actor. More generally, critical reflexivity could help the EU to address the lingering Eurocentric tendencies that these Concepts reveal. Such critical questioning by the EU of its own assumptions, as well as learning from perspectives from outside the EU or the past, can be a process of focusing on Europe in order to decentre it. That, then, could also be a mission for this bold new European journal.

David Erdos: The UK GDPR, Immigration Exception and Brexit: Interrogating Open Rights Group v Secretary of State for the Home Department and its Aftermath (9/2022)

This piece explores the holding, context and aftermath of the judgments by the Court of Appeal of England and Wales which declared the so-called “immigration exception” set out in the UK Data Protection Act 2018 incompatible with, and assumed it subject to, article 23 of the (UK) GDPR (see Open Rights Group v SSHD [2021] EWCA Civ 800 and [2021] EWCA Civ 1573). The subsequent limitation of the exemption’s use to the Secretary of State is impactful in itself. However, it is argued that this case has much wider significance for both data protection and for Brexit. Firstly, the finding that article 23(2) of the GDPR mandates granular specificity places in jeopardy a wide range of exemptions in not only UK but also EU Member State law. Secondly, the assumption that the “immigration exception” is subject to article 23 is questionable since the post-Brexit rewording of the latter seeks to restrict its scope to limitations laid down in delegated legislation only. However, this rewording was effected under powers limited to addressing post-Brexit technical “deficiencies” and so should have been held ultra vires. Such UK Government overreach is also apparent as regards the GDPR’s so-called journalism derogation and may be a serious issue across much of EU-derived retained law.

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