Legal Studies Research Paper Series Vol. 15, No. 3

The Faculty has distributed Volume 15 Number 3 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Eyal Benvenisti: When Solange I Met Neubauer: National Courts Protecting Global Interests When Reviewing Decisions of International Organizations (31/2023)

What is the significance of the Solange I judgment for situations when national constitutional courts (NCCs) are called upon to implement or resist the implementation of an act of an international organisation (IO)? May, or even should these courts follow the German Federal Constitutional Court (GFCC) and indirectly review the compatibility of the measure with the national constitution? What considerations should shape these courts’ approach? In responding to this question, this essay inquires about the positive and negative effects of such an exercise of indirect review on IOs beyond the EU: could such a review undermine the functionality of the IO or its impartiality? I will present an argument in support of the Solange I approach and explain how and why indirect review by NCCs is more likely than not to contribute to an improvement in the functionality and impartiality of IOs. My argument will be partially based on integrating into the Solange I framework the GFCC’s 2021 judgment of Neubauer, in which the Court extended the Basic Law’s protection also to people living abroad. I contend that such an indirect review by an NCC that pays due regard not only to national interests, but also to the rights of foreigners that may be affected by the NCC’s decision to implement or reject the IO measure could improve the functionality of IOs and their adoption of inclusive and accountable outcomes that balance the rights and interests of all affected by the IO.

Fiona Costello & Catherine Barnard: The Darker Side of the Internal Market Ideal: EU Migrant Workers Living in a Coastal Town (32/2023)

The free movement of people is one of the cornerstones of the internal market, allowing any EU citizen to live and work in another Member State (MS). Much research has been done on intra-Member State migration to metropolitan cities, research which highlights the benefits of free movement. What is less understood is the impact of free movement on small, regional locations which previously experienced little to no inward migration. Our research aims to start filling that gap. It examines the experiences of EU migrant workers who moved to the UK (pre-Brexit) exercising their EU freedom of movement rights. In particular, it looks at EU migrant workers working in low-wage, low-skilled employment in the coastal town of Great Yarmouth in Norfolk, in the East of England. We look specifically at the problems EU migrant workers experience in and around housing, an issue which had already been identified by the Member States in the 1950s as a potential flashpoint. Housing has always been a sensitive issue for receiving states, as well as for locals and for migrants. We wish to argue that the requirement of equal treatment, the key right under EU law, means little in practice for the day-to-day experience of migrant workers yet it creates tensions within the local community.

Bobby V. Reddy: Going Dutch? Comparing Regulatory and Contracting Policy Paradigms Via Amsterdam and London SPAC Experiences (1/2024)

The Special Purpose Acquisition Company (SPAC) is a cash-shell listed with the sole purpose of acquiring an operating business. Although SPACs, in a high interest rate environment, may have recently fallen out-of-favor, it was not long ago when they dominated the US markets. SPACs did not, though, come without controversy. Arguably the incentives ingrained in typical SPACs make them poor investments for long-term shareholders, while lucrative for their sponsors and shareholders seeking to exit prior to an acquisition. Europe was not immune to the SPAC craze, but London and Amsterdam took differing approaches. While London employs a regulatory paradigm pursuant to which SPACs (to avoid a trading suspension upon announcement of an acquisition) must adopt specific terms, Amsterdam follows a contracting paradigm, giving market participants broad scope to implement any SPAC terms that they see fit. In this article, the terms of the cohort of London- and Amsterdam-listed SPACs from 2021 and 2022 are comprehensively scrutinized in the context of the terms that are embedded in the typical US SPAC. This article finds that many of the terms mandated by London’s regulatory rules are also found in Amsterdam-listed SPACs. However, many of those London- and Amsterdam-listed SPACs also display many of the qualities seen in the US which have caused so much consternation. Taking inspiration from the phrase ‘going Dutch’, it is argued that an optimal SPAC policy that assuages concerns levied at US SPACs should take contributions from both the regulatory and contracting paradigms.

Matthew H. Kramer: There is no such thing as the separability thesis (2/2024)

One commendable aspect of the ruminations by H.L.A Hart on legal positivism, which quite a few contemporary philosophers of law have not fully absorbed, is that he recognized the diversity of the points of contention that have pitted the devotees of positivism against the devotees of natural-law theories. Whereas some present-day philosophers of law are inclined to refer to “the separability thesis” of legal positivism – with the definite article “the” as a signal that there is one defining point of dispute between legal positivists and their opponents – Hart knew that there is no single such thesis. He was keenly aware that natural-law theorists have postulated numerous connections between law and morality which putatively clinch the character of law as an inherently moral phenomenon, and he rightly held that legal positivism poses a challenge to each of those connections or to the claim that any unchallenged connection serves to establish the inherently moral character of law. Far from being confined to a solitary separability thesis, legal positivism consists in a wide-ranging affirmation of the separability of law and morality – an affirmation that contests the multifarious endeavors of natural-law theorists to present law as intrinsically moral.

Surabhi Ranganathan: The Seabed and the South: From Stock Stories to New Histories of International Lawmaking (4/2024)

Centering on the career of Cameroonian diplomat Paul Bamela Engo during the negotiation of the UN Convention on the Law of the Sea, this article makes a methodological intervention in the historiography of multilateral treaty-making. It reads through and against the grain of dominant narratives of oceanic constitution-making, and offers counter-narratives that serve as conceptual and mobilizational resources in contemporary struggles. It examines how the ‘stock story’ of the emergence of the resource regime for seabed minerals as the common heritage of mankind erases the radical alternatives that were proposed by Third World actors and their efforts to write them into law and sorts these actors into trope-laden categories of ‘extremist’ and ‘moderate’. Against this, and building on critical race theorist Richard Delgado’s exploration of counterstorytelling, it traces histories that position Third World diplomats and lawyers as intellectual innovators and rival worldmakers. Extending the field of international intellectual history, and examining international lawmaking conferences as a political form, these histories link UNCLOS to wider anticolonial and worldmaking projects. Connecting analyses at multiple spatial and temporal scales they offer an empirically-grounded approach to the agency and structural constraints of Third World actors negotiating international legal orders, and illuminate international law-making as a promising site for global history.

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