Legal Studies Research Paper Series Vol. 16, No. 4

The Faculty has distributed Volume 16 Number 4 of the University of Cambridge Faculty of Law Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Eilis Ferran: Regulating for Growth in an Era of Rising Economic Nationalism: UK and EU Perspectives (14/2025)

The UK and EU have become acutely aware of the strategic vulnerabilities posed by capital market globalisation particularly the loss of high-potential firms and domestic investment capital. With harmonised global standards in retreat, the strategic use of regulation as a retention tool has moved to the heart of their regulating for growth agenda. While the UK and the EU have similar worries about outward flows, especially to the U.S. markets, fundamental differences in their capital market ecosystems result in divergence in their regulatory responses. The paper highlights similarities and differences in key UK and EU initiatives aimed at improving capital market access for domestic growth companies and large privately-owned companies. The persistent difficulty of closing funding gaps for growth companies and providing exits for investors in privately-owned companies, coupled with the growing importance of private capital markets, has elevated this policy area to one of strategic importance. The paper explores the challenges faced by public growth markets and. considers how their competitive position may be impacted by the introduction, led by the UK, of a new ‘private plus’ type of stock exchange for privately-owned companies. Stimulated by the scholarship of Roberta Romano, this paper examines the UK and EU retention efforts through the lens of defensive regulatory competition. Key findings relate to (i) diversity in legal transplants; (ii) the limits of regulatory solutions in addressing market ecosystem problems; and (iii) the (mis)alignment between market friendly solutions and socially optimal outcomes.

David Erdos: Commonwealth Citizenship: The Decline and Future of an Amorphous Concept (15/2025)

The post-War Commonwealth citizenship concept promised a post-imperial system of non-alien status and rights. Although the former Dominions maintained (and South Africa furthered) discriminatory policies and the new members also adopted restrictive approaches, some optimism remained into the 1960s. This evaporated and was replaced by a crisis brought on by East Africa's 'Africanisation' initiatives. Although a trend against recognition commenced in the mid-1970s, almost half the Commonwealth still at least symbolically recognise such citizenship and around one third accord it limited electoral or other rights. Nevertheless, absent new momentum, a non-recognition trend will continue. From 2011 to 2018 Commonwealth citizenship was invoked in a proposed pan-Commonwealth initiative to facilitate short-term mobility especially for business purposes. This initiative chimes with the new Secretary-General's focus on enhancing economic cooperation, might usefully be revitalised and could provide continued justification for recognising Commonwealth citizenship.

Bobby V. Reddy & Brian R. Cheffins: What Can Delaware Learn from the U.K.'s Moelis Moment? (16/2025)

The 2024 Delaware case West Palm Beach v. Moelis created tremors across the business world when the court held that many terms commonly adopted in contractual stockholder agreements were unenforceable by virtue of infringing Delaware's statutory default granting the board managerial authority. Statute trumps contract. In response to practitioner backlash, Delaware enacted legislation proposed by senate bill "SB 313" reversing Moelis, which itself caused significant consternation in the academic community.

Some 35 years prior to Moelis, the U.K. had its Moelis moment in the case Russell v. Northern Bank, the O.G. of statutory primacy. Again, certain common stockholder agreement terms were rendered invalid with the stroke of a pen. Unlike Delaware, a SB313-esque legislative response was not forthcoming. Tapping into the U.K.s experience, this article offers unique insights into Moelis and SB 313.

We show that while commercial practice has not collapsed, Russell introduced a plethora of uncertainties that remain unresolved more than three decades later. We highlight similar uncertainties readily apparent from Moelis, and further uncertainties that may have emerged if SB 313 had not been enacted. This article makes an argument seldom proffered in academic commentary-SB 313 was a necessary and important response to Moelis. We further use the U.K. experience to suggest a solution to protect stockholders fearing abuse from stockholder agreements post-SB 313. SB 313 is not perfect, but look to Britain for how worse things could have been.

Mark Elliott & Philip Murray: In Defence of Classical Administrative Law (17/2024)

The classical account of administrative law, which holds that unlawful administrative acts are void ab initio and that judicial review remedies such as quashing orders are merely declaratory of such acts’ legal status, appears to be placed in doubt by a range of recent legislative developments, judicial pronouncements and academic commentary. However, the classical account is not only capable of withstanding those apparent challenges: it is constitutionally imperative if collateral challenge is to be maintained, and the rule of law thereby upheld.

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