Legal Studies Research Paper Series Vol. 15, No. 2

The Faculty has distributed Volume 15 Number 2 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Sarah Nouwen: Peacemaking (23/2023)

Unlike intuitively related areas such as dispute settlement, the use of force, the law of armed conflict, human rights and international criminal law, ‘peacemaking’ is not a recognised subfield of international law. It was not recognised as such in the beginning of the period under review in this volume (1989), nor by the end of it (2021). However, after the term ‘peacemaking’ rose to prominence in the 1990s as a concept and objective of global governance, legal scholars sought to capture the proliferation of peacemaking practices in legal language, coining or invoking concepts such as lex pacificatoria, ‘legal tools for peacemaking’ and jus post bellum. By the end of the period under review, none of these projects had managed to establish their version of a ‘law of peacemaking’ as a generally recognised subfield of international law. Lawyers had come relatively late to the practice of peacemaking, and when they did, the terrain – both in terms of political thought and practices – had already begun to shift. But while falling short of establishing a recognised subfield of international law, attempts to let law speak to peacemaking continue, albeit in less universalist terms.

Jane Stapleton: Unnecessary and Insufficient Factual Causes (24/2023)

Law recognizes a necessary (i.e., but-for) factor as a factual cause. However, it is a common misconception that the but-for test is the exclusive test of factual causation. Longstanding case law reveals that a factor may be a factual cause of an outcome, even if it was neither necessary nor sufficient for it. This was recently unanimously confirmed by the Supreme Court of the United Kingdom in Financial Conduct Authority v. Arch Insurance (UK) Ltd (2021). In the law, there seems to be a uniform concept of what it means to be a factual cause, one that is wider than necessity and includes unnecessary and insufficient factors which are recognized as factual causes across a wide variety of legal contexts. This uniform concept of factual cause can be captured in a forensically straightforward way in an “extended but-for test”. Appreciation of unnecessary and insufficient factual causes, which are common, provides a more coherent frame in which to view the outcomes of certain earlier cases. It also illuminates the importance for clarity of legal reasoning of separating the context-independent factual cause issue from context-dependent analytical stages such as the scope of the rule and remedy, including loss quantification.

Rumiana Yotova: Anticipatory Duties under the Human Right to Science and International Biomedical Law (28/2023)

The paper assesses the interplay between international human rights law and international biomedical law as two specialised regimes within international law. The focus lies specifically on the anticipatory duties arising under the human right to benefit from science and its applications on the one side and under international biomedical law on the other. International biomedical law instruments claim to adopt a human rights-based approach to the regulation of biology and medicine, so one of the questions that arises is whether the anticipatory duties in biomedical law are indeed a specific application of the corresponding duties in international human rights law, modified, expanded and elaborated further to better address the distinctive subject matter, namely, the interface between the individual and science and technology in a medical context? Or whether the anticipatory duties in international biomedical law draw from general international law or other specialised regimes within it? The main question that this paper aims to address concerns the precise scope and content of the anticipatory duties under international biomedical law and their relationship to human rights.

Narine Lalafaryan: Private Credit: The Evolution of Corporate Finance and The Firm (25/2023)

This paper aims to provide new insights into the role of modern debt (credit) capital in the firm, its relationship with equity (share) capital, and the implications of advances in debt markets for corporate finance and corporate governance. The thesis of this paper is that the role of debt and its relationship with equity in the firm, due to recent significant developments in the corporate finance markets after the global financial crisis of 2007-2008, has been transformed. The relatively new, but already very experienced non-traditional providers of debt finance, such as private credit funds, are aggressively competing with traditional finance providers, such as commercial banks, in a dynamic market which is full of unforeseen and large-scale risks.

To the best of our knowledge, this is the first academic paper in law to examine private credit funds and to compare them to commercial bank financing. The paper challenges the traditional legal and financial framework of corporate finance and corporate governance and shows that modern debt providers (i) do participate in capital growth, (ii) are interested in the firm’s profit maximisation, (iii) there is not always a conflict between the interests of equity and debt providers in the firm, and (iv) corporate loan financing agreements are often expected to be renegotiated (repriced). Based on developments in the corporate finance markets, the paper argues that outside financial distress, often debt and equity simply can no longer exist in a vacuum from one another. The reliance of private credit funds on private (contractual) bargaining can also improve the economic efficiency.

Eyal Benvenisti: Power and Passion in International Organizations: A Call to Rethink the Law (30/2023)

After 1945, international organizations (IOs) were enthusiastically lauded as the effective, democratic means for resolving international conflicts and promoting global welfare. Sharing this enthusiasm, the International Court of Justice developed doctrines which exuded confidence in IOs, premised on a belief that their subjection to legal accountability is unnecessary and even counterproductive. The fundamental faith in the idea of IOs persisted despite growing evidence of IO failure, because this failure was associated with agents defying their principals’ commands and hence resolvable by improving agents’ accountability. In this Article I argue that the problem with IOs runs deeper as I develop a typology of the functions that IOs serve and of the factors that promote or impede collaboration. I demonstrate that, to paraphrase Clausewitz’s famous quip, IOs are spaces where politics continue with other means. Absent key factors that secure endogenous collaboration, power reigns within IOs, At the same time, I propose that my typology opens the door for studying ways to enhance inter-state collaboration through the institutional design of each IO. Since IOs tend to be arenas where politics continue with other means, they should not necessarily remain shielded from the requirements of the international rule of law.

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