Legal Studies Research Paper Series Vol. 15, No. 9

The Faculty has distributed Volume 15 Number 9 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Fabian Simon Eichberger: Self-Judgment in International Law: Between Judicialization and Pushback (33/2024)

The legally binding unilateral application of norms holds potential for abuse. Nonetheless, self-judgment is alive and kicking. Self-judgment language commonly features in treaties and states frequently invoke their authority to ‘self-judge’ sensitive issues, such as matters related to national security, before international judicial bodies. In many of these cases, the controversy whether a norm has a self-judgment quality or not has been decisive for the outcome of the dispute. Yet, the meaning and consequences of self-judgment remain contested.

This article develops self-judgment as the authoritative application of international legal norms by states. It posits that steps towards the judicialization of self-judgment by judicial bodies have given rise to state efforts to preserve unfettered discretion. Notably, states have responded to attempts by judicial bodies to gain authority over the application of self-judgment by drafting provisions more explicitly. This dynamic continues to make self-judgment a site of judicialization and pushback. The only way to understand the meaning, limitations and development of self-judgment is by studying this process. Doing so conceptually refines self-judgment and allows for more meaningful references to the notion in practice.

Henning Grosse Ruse-Khan & Ashrutha Rai: Intertemporality and Public Policy - Rethinking Temporal Conflict of Laws in Addressing Historic Injustices (34/2024)

As reparations claims for historic injustices such as transatlantic chattel slavery receive increased attention, a strong focus has been on the historical analysis of legality at the time. This appears essential because the doctrine of intertemporality is commonly understood as preventing any consideration of current rules or perspectives on slavery and its consequences. Intertemporality, however, leads us back to a past international law which created or legalised the very injustice subject to the reparation claim. Alternative norms of the oppressed tend to be less visible; and trying to unearth past laws and customs other than those of the powerful is an uphill battle as research conventionally turns to accessible written records and archives of the dominant powers. However, increasing contestation in legal, historiographic and post-colonial scholarship shows the indeterminacy of past laws and thereby questions the very foundation of intertemporality. Against this context, we challenge the doctrine of intertemporality as a principle that, in deciding the law applicable to conflicts in time, remains underdeveloped and incomplete. After reviewing decisions by international courts and tribunals on intertemporality, we contrast its application with the relatively more sophisticated system of spatial conflict of laws as part of private international law. We argue for an analogous application of the latter where the international law on temporal conflicts leaves gaps. In particular, questions of public policy and morality can be addressed via ordre public as a corrective device, displacing laws that generate outcomes manifestly incompatible with the forum’s fundamental values. As our analysis shows, such questions have also been considered for temporal conflicts in international law, albeit in a less coherent way. This comparative analysis allows us to suggest a more nuanced approach to intertemporality in international law – especially for scenarios of severe past injustices with significant current consequences such as transatlantic chattel slavery.

John Burden, Maurice Chiodo, Henning Grosse Ruse-Khan, Lisa Markschies, Dennis Müller, Seán Ó hÉigeartaigh, Rupprecht Podszun & Herbert Zech: Legal Aspects of Access to Human-Generated Data and Other Essential Inputs for AI Training (35/2024)

The increasing use of LLMs and other generative AI is adding vast quantities of AIgenerated content to the online data environment, thereby contaminating it: Future AIs continue to be trained on data from the internet, and thus partly on their own (collective) output. However, this feedback loop can have detrimental effects, to the point where newly trained AI models can collapse and become useless. Removing AI-generated content from data sets is already difficult, and may well become impossible as it further improves, leading to a risk of a perpetually contaminated information sphere. As future AIs will continue to require large uncontaminated data sets, they may increasingly need to rely on data collected prior to the proliferation of generative AI, that is prior to the end of 2022. Alongside existing barriers to entry such as compute resources, electricity, and human talent, this new barrier may become insurmountable, thereby leaving newcomers in the generative AI market behind and allowing existing players to further entrench their dominant positions. In this paper, we consider a range of existing legal regimes-broadly aligned with those of the EU as the most proactive regulator of AI, data and platforms-that might be useful in addressing questions about access to uncontaminated data and other essential inputs for AI training. Covering AI regulation, data (access) governance regimes, EU and domestic competition law as well as gatekeeper rules for digital markets, we show that currently, there is-unsurprisingly-no tailor-made solution in existing legal regimes. However, various elements of those laws reinforce the underlying idea that access to an essential resource which is not only increasingly scarce, but at significant risk of 'extinction', may be an important public policy concern that the law should address. Ideally, before it is too late. We conclude with a range of considerations on how access to uncontaminated data and other essential inputs could be afforded in a fair and equitable manner for all-while aiming to minimise the risks of harmful uses resulting from such access.

Brian R. Cheffins, Bobby V. Reddy & Kim Willey: Can Canada's Pension Model Cure the UK Stock Market's Doom Loop? (36/2024)

One cause of a "doom loop" the UK stock market has experienced has been domestic pension funds forsaking investing in UK shares. There currently is much discussion of pension reform in Britain, with a major theme being introducing Canadian-style pension "megafunds". We consider whether reform along these lines would revive the UK stock market and argue this is unlikely.

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