Legal Studies Research Paper Series Vol. 15, No. 7

The Faculty has distributed Volume 15 Number 7 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Kenneth Armstrong: The Power of Routine and the Disruptive Politics of Brexit (23/2024)

Inspired by, and building upon, Marise Cremona’s scholarship, Armstrong’s essay explores the relationship between law and politics in EU external relations taking ‘Brexit’ as his example. Drawing on a distinction proposed by van Middelaar, the essay explores the question of whether the disruptive politics of Brexit might exemplify the end of an era of ‘rules-politics’ in favour of a shift to a type of ‘events-politics’ which is characterised by greater political agility in the face of unexpected changes and challenges. The answer put forward is that it does not. On the contrary, consistent with an historical institutional analysis, it is argued that the process of UK withdrawal and the process of constructing a post-membership relationship were governed by routines in the form of path dependencies, standard operating procedures and norms or logics of appropriateness. Crucially, law plays a fundamental role in institutionalising routine, both in terms of the EU’s substantive commitments, and in terms of its decision-making procedures. Cremona’s elaboration of the structural principles of EU external relations is exemplary in this respect.

Hypotheses derived from historical institutionalism are tested through a careful analysis of different elements of UK exit and the formation of a post-exit partnership. This includes an examination of the role of the European Council and the conduct of Article 50 negotiations. It also shows how routine procedures in the form of the preliminary ruling mechanism served to give voice to the European Court of Justice which in turn relied on well established ‘normative scripts and frames’ from the sphere of EU external relations to ground its judgments. Path dependencies also shaped the negotiating position of both the EU and the UK in relation to the level playing field provisions in the Trade and Cooperation Agreement, albeit that the EU recorded greater success in projecting its internal rules and templates into the new agreement. Established EU procedures and EU (and international) norms also played a fundamental role in confronting instances of UK non-compliance in relation to the Irish Protocol.

At every step in the essay brings to the fore not only the power of routine but also and concomitantly, the power of law. While recognising the disruptive politics of Brexit and without seeking to downplay the role or force of politics, the essay seeks to rebalance the account by emphasising the role of routine as constituted and consolidated through law. Armstrong’s account is analytical not normative but we find within it both instances of productive adaptability and excessive inflexibility within existing routine.

Felix Steffek: A Story of Two Holy Grails: How Artificial Intelligence Will Change the Design and Use of Corporate Insolvency Law (24/2024)

Artificial intelligence holds immense potential to support those affected by corporate financial distress to solve the associated coordination problems. This opportunity is currently restricted by the lack of legal and non-legal data. The essay recommends legal reform to make both types of data publicly available. It is argued that access to corporate insolvency law will include access to legal and non-legal data concerning corporate financial distress. If such access is provided, corporate insolvency law will become less mandatory and more default. However, a group of involuntary creditors requiring specific protection by corporate insolvency law will remain. The degree to which and the areas in which corporate insolvency law will become default will depend on the availability of related AI services and which groups have efficient access to these services.

Alexandra Giannidi: Making Victims Relevant: Republican Freedom and the Justification of Criminal Punishment (25/2024)

Although punishment theories have overall been slow to incorporate the move towards victims’ rights, Braithwaite & Pettit’s republican theory has been a notable exception. This paper is concerned with identifying the ways in which republican theory urges us to rethink the philosophy and practice of punishment, positioning victims at its centre, as well as with the theory’s evaluation. According to republican theory, crime compromises the victim’s ‘dominion’, that is a type of freedom as non-domination thicker than freedom as non-interference. In this context, punishment is justified as the rectification of the victims’ diminished dominion, through restorative justice practices backed by the threat of deterrence and incapacitation as a last resort. It is argued that in linking the levels of justification and practice, republican theory renders the concept of ‘dominion’ indispensable to the development of a normative framework for victim-focused punishment, while avoiding the collapse of the criminal justice system into a system of tort law. But does the turn to victims that the republican theorists envision come at a cost for offenders? On the one hand, their conception of victim-focused punishment successfully integrates a principle of parsimony, thereby reconciling the interests of victims and offenders. On the other hand, the pure consequentialist character of republican theory, reflected in the penal practices it envisions, is not easily reconcilable with the mandate for a stable protection of offenders’ rights and the principle of proportionality. It is suggested that the way forward requires at the level of theory a synthesis between republicanism and versions of backward-looking justifications of punishment, and, at the level of practice, an effort to implement responses to crime which do not set up victims and offenders for a zero-sum game.

David Erdos: Ireland and the Commonwealth 1949-1960: External Association Redux? (26/2024)

This paper demonstrates that, notwithstanding Ireland’s 1949 Commonwealth secession, it (re)established an informal external association with this grouping vis-à-vis its principal concerns which lasted throughout the 1950s. By law or practice, 1950s Ireland lifted alien restrictions on most Commonwealth citizens and its citizens received preferential treatment in most Commonwealth countries. It participated in the Commonwealth tariff ‘system’ by both giving and receiving preferences based on ‘Commonwealth’ status and by maintaining long-standing trade agreements with the UK, Canada and South Africa. As with all the Commonwealth bar Canada, it remained within the Sterling Area which greatly bolstered economic links. Ireland also participated in some Commonwealth policy fora but, other than in agricultural research, lacked privileges enabling exercise of leadership or even clear rights. These limitations bolstered interest in rejoining especially in the late 1950s but the unresolved issue of Partition, as well as recognition that Commonwealth economic links were weakening, rendered this politically impossible.

Bobby V. Reddy: Private Equity and Net Asset Value Loans -Ticking Time Bomb or Ticking All the Right Boxes? (27/2024)

The private equity leveraged buyout (LBO) industry has been on the ropes in recent years, with high interest rates making acquisitions more costly, severely depressing exit values, and hampering fund-raisings. Accordingly, the industry has sought to adapt, and net asset value loans (NAV Debt) have come to the fore extolled in some quarters as being the savior of the industry. NAV Debt is borrowing by a fund backed-up by the net asset value of all the portfolio companies that it owns. NAV Debt cuts against the grain of conventional LBO mechanics by creating liabilities at the fund-level rather than at the level of individual portfolio companies. In this article, the traditional LBO model and the governance advantages that emerge therefrom are described, before discussing the way in which NAV Debt challenges the customary form. The article argues that although NAV Debt is versatile in its uses and conceptually can provide benefits for a private equity fund, it also has a darker side that undermines the carefully curated dynamics of the LBO archetype and could in certain circumstances be detrimental to LBO investors. Lenders and fund sponsors may claim that NAV Debt ticks all the right boxes, especially during a period of economic turmoil, but, in fact, its use bakes-in significant risks that could pummel final returns. Although NAV Debt is perhaps not quite a ticking time bomb, it could represent a gamble that tarnishes the returns of a generation of funds.

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