{"title":"On Trust: The UN Security Council as Fiduciary","authors":"D. Hovell","doi":"10.2139/ssrn.3805106","DOIUrl":"https://doi.org/10.2139/ssrn.3805106","url":null,"abstract":"Perceived failures by the UN Security Council have been characterized as a ‘betrayal of trust’, which threatens to impact in turn on the strength of the Council’s authority. In certain legal cultures, fiduciary law has been recognized as an effective legal mechanism to underwrite trust in the exercise of authority. This Article considers the potential value in applying the fiduciary construct to the Security Council setting as a way to consolidate trust. In doing so, it is necessary to unpack two different conceptions of the fiduciary construct: the precept of law (derived from domestic private law) and the precept of authority (sometimes described as public fiduciary theory). Interpreting the former precept as applicable to private interests and the latter to the public interest, this article recognizes both precepts as applicable to relationships in which there is a legal expectation that that those exercising control over another’s interests will not exploit (duty of loyalty) or squander (duty of care) those interests. The central question is whether the UN Security Council can be said to exist in such a fiduciary relationship, either with private persons or with some iteration of the global public. By reference to recent controversies, including privatization of public assets in Kosovo, sexual exploitation and abuse by UN peacekeepers, Security Council vetoes in the face of atrocity and due process failures in sanctions decision-making, this article examines the extent to which the fiduciary construct can play a useful role in reinforcing trust in the Security Council setting.","PeriodicalId":117557,"journal":{"name":"LSE Legal Studies Working Paper Series","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-03-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125927001","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Market for Stewardship and the Role of the Government","authors":"D. Katelouzou, Eva Micheler","doi":"10.2139/ssrn.3704258","DOIUrl":"https://doi.org/10.2139/ssrn.3704258","url":null,"abstract":"In this contribution, we focus on the market for stewardship, as this has been developing in the UK. We observe that the 2020 UK Stewardship Code more clearly than previous stewardship codes (both in the UK and elsewhere) articulates the concept of a market for stewardship. The UK Code 2020 now more openly than before takes into account the position of end-investors and beneficiaries. The hope is that stewardship will be delivered because those whose money is invested ask for it. We agree that stewardship does start with those who contribute the funds invested in the market. The focus on end-investors and beneficiaries is, however, not enough. As this paper explains, by limiting the analysis to these groups, the UK government overlooks the fact that it is itself a financial contributor to the market. A study commissioned by the Competition and Markets Authority (CMA) finds, for example, that 90% of the revenue of investment consultants and fiduciary managers derives from pensions. The government contributes to pension investments through the provision of tax credit. It is a significant financial investor in the market. Tax credit also deprives end-investors and beneficiaries of a financial incentive to oversee asset owners, asset managers and other service providers. We, therefore, suggest that the UK government should act as a steward in relation to its own investment and tailor tax credit to investments that are stewardship active.","PeriodicalId":117557,"journal":{"name":"LSE Legal Studies Working Paper Series","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-10-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130267173","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"From Coercion to Cooperation: Settlement within EU Competition Law","authors":"N. Dunne","doi":"10.2139/ssrn.3481419","DOIUrl":"https://doi.org/10.2139/ssrn.3481419","url":null,"abstract":"This paper explores the proliferation of settlement mechanisms within contemporary antitrust enforcement pursued by the European Commission under Regulation 1/2003. To do so, it develops a taxonomy of settlement devices deployed in recent enforcement activity, considering for each the level of cooperation required, alongside what is at stake for defendants and the Commission in terms of the outcome of the administrative process. The chapter then addresses both the underlying motivations, and the broader implications in terms of law and practice, of the shift from coercion to cooperation as the default model of competition enforcement in the EU.","PeriodicalId":117557,"journal":{"name":"LSE Legal Studies Working Paper Series","volume":"29 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-11-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123321457","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Purposive Transformation of Corporate Law","authors":"D. Kershaw, Edmund-Philipp Schuster","doi":"10.1093/ajcl/avac004","DOIUrl":"https://doi.org/10.1093/ajcl/avac004","url":null,"abstract":"\u0000 What is the purpose of a corporation? This fundamental question is as old as corporate law itself, and traditionally it is asked with reference to the ultimate beneficiaries of a corporation’s activities. Modern management theory and the current technology-driven transformation of the economy, however, have breathed new life into the question about corporate purpose. Here, purpose is understood as an animated mission-purpose articulation of the reason for a corporation’s existence; an aspirational idea about its existence that has the capacity to bond internal and external stakeholders to the company, inspiring innovation, productivity, and customer loyalty. This understanding of corporate purpose offers a pathway to a more inclusive and interconnected form of modern capitalism.\u0000 This approach to purpose is now gaining regulatory traction. In December 2018, the United Kingdom’s “comply or explain” Corporate Governance Code adopted a provision which provides that “the board should establish the company’s purpose.” This Article takes the United Kingdom’s regulatory adoption of mission-purpose as a platform from which we can explore the economic and social benefits of purposeful companies and the legal and non-legal conditions that are necessary to support and nurture such companies. The Article argues that in the absence of purposeful shareholders corporate law must enable companies to construct a zone of insulation which protects its purpose—whatever it may be—from the pressures of immediate shareholder preferences which can compromise mission-purpose. It argues that in jurisdictions where law and market practice prevent the construction of such a zone of insulation, the economic and social benefits of purposeful companies will be unavailable, as mission-purpose disintegrates into the prosaic or a mere marketing device. This claim generates several theoretical and empirical objections, which the Article considers and rejects.","PeriodicalId":117557,"journal":{"name":"LSE Legal Studies Working Paper Series","volume":"45 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-03-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124950200","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Smart Contracts and Consumers","authors":"Tatiana Cutts","doi":"10.2139/ssrn.3354272","DOIUrl":"https://doi.org/10.2139/ssrn.3354272","url":null,"abstract":"“Smart contracts” are a way of using computers to make contracts unbreakable. Contracting parties do not need to trust one another to perform or rely upon intermediaries to enforce performance. Performance is guaranteed. This is supposed to be a victory for the ordinary person – a clever socio–economic application of cryptography that strips power from companies and governments and gives it to consumers. But it turns out that less trust does not mean more freedom, or better bargains. The law of contract supports valuable relationships both by enforcing duties and by allowing parties to escape the consequences of ill–formed contracts and oppressive terms. Smart contracts remove these safeguards. Consumers may be bound, inexorably and without recourse, to contracts that are wholly devoid of virtue. The lesson of smart contracting is clear and urgent: when we design the future of commerce, we should direct our resources towards building, not emaciating, relationships of trust.","PeriodicalId":117557,"journal":{"name":"LSE Legal Studies Working Paper Series","volume":"40 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-03-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129737935","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Public Law and the Autonomy of the Political: A Material Critique","authors":"Michael A. Wilkinson","doi":"10.2139/ssrn.3063210","DOIUrl":"https://doi.org/10.2139/ssrn.3063210","url":null,"abstract":"Modern public law, according to Martin Loughlin’s Foundations of Public Law, depends upon the autonomy of the political realm. This is explained on the basis of an orthodox secularisation thesis of modernity, the autonomy of the political emerging through its successful separation from the theological. But when viewed in relation to the economic (the material realm), the autonomy of political ordering looks more fragile, subject to the continuing struggle between democracy and capitalism. The concrete features of this struggle are explored by way of a stylised diachronic overview of the transformation of the Western European state and regional state-system in the twentieth century, first with the interwar breakdown of political order, then with postwar reconstruction in the project of European integration. In the recent Euro-crisis phase it again enters a critical period. All of this, however, escapes the lens of a purely political jurisprudence.","PeriodicalId":117557,"journal":{"name":"LSE Legal Studies Working Paper Series","volume":"44 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121412377","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Springwell-watch: New Insights into the Nature of Contractual Estoppel","authors":"J. Braithwaite","doi":"10.2139/ssrn.2983850","DOIUrl":"https://doi.org/10.2139/ssrn.2983850","url":null,"abstract":"Over the last ten years, the emergence of contractual estoppel has been catalysed by litigation between sophisticated participants in the financial markets. Pending a Supreme Court decision, the principal authority remains the Court of Appeal’s 2010 decision in Springwell Navigation Corp v JP Morgan Chase Bank (‘Springwell’). It would be wrong, however, to think that the doctrine has remained static since this landmark decision, or that it has remained confined to the financial sphere, or to relationships between sophisticated parties. The paper aims to fill a gap by considering the more recent, ‘second generation’ of cases involving contractual estoppel handed down in the five years 2013-2017 inclusive, with the aims of developing our understanding of this type of estoppel and examining its actual implications to date. Overall, the paper shows how contractual estoppel has become a recurrent and predictable feature of financial markets litigation, but also how it has spread into cases involving more diverse aspects of business and personal life. It argues that this diversity matters not only because of the impact on these wide-ranging types of relationships, but also because it has influenced the development of the doctrine. In this respect, the analysis shows how existential questions about contractual estoppel have faded from the cases, to be replaced by debates about the constraints on the doctrine. As a result, having assessed the extent and implications of spread of the doctrine, the paper proceeds to analyse the status of those constraints as they currently stand, considering in turn the ‘internal’ and ‘external’ limits","PeriodicalId":117557,"journal":{"name":"LSE Legal Studies Working Paper Series","volume":"45 3","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-06-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120844461","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Universal Suffrage: Undeclared Conflict of Interest","authors":"K. Yanovskiy, S. Zhavoronkov, Y. Socol","doi":"10.2139/ssrn.2745294","DOIUrl":"https://doi.org/10.2139/ssrn.2745294","url":null,"abstract":"Conflict of interest of welfare dependent voter creates wrong incentives. These incentives inherent to universal suffrage, yield consequences, as predicted by John Adams back in the 18-th century. Historically the rise of the modern welfare state might be traced to the emergence of mainstream left parties, which promoted government care “from the cradle to the grave”. This paper will address the damages to Democracy caused by conflict of interest, which led to irresponsible leadership and permanent peacetime budget deficit. Historical examples from the 1990s show possible escapes from the trap of universal suffrage.","PeriodicalId":117557,"journal":{"name":"LSE Legal Studies Working Paper Series","volume":"45 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-03-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133462660","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Collaborating in a Meritocracy and Post-Crisis Reform","authors":"Sarah Paterson","doi":"10.2139/SSRN.2801024","DOIUrl":"https://doi.org/10.2139/SSRN.2801024","url":null,"abstract":"It is tempting to see the defensive reaction of the finance industry in Britain to the recent financial crisis as something new; a sign of an industry which has developed a rotten culture of self-interestedness and a devil-may-care attitude to the consequences of its actions. This paper argues that in fact the reaction is a familiar one in the historical record, continuing a long-run debate between the industry and the British authorities on responsibility for liquidity and capital crises. Whilst the details of the debate have changed as the market has changed over time, the contours of the general debate are clearly visible from the end of the nineteenth century to the present day. The paper suggests that what is new is the difficulty of mediating the debate in a more meritocratic age, when the soft controls of patronage, class and deference have largely fallen away. It argues that more law and more regulation will not achieve real reform, if it does not reflect the values of those it seeks to control. Instead, it suggests that we must develop ways to encourage collaboration between market participants and the authorities within modern, merit-based systems.","PeriodicalId":117557,"journal":{"name":"LSE Legal Studies Working Paper Series","volume":"45 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-12-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117256937","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Bank Resolution Financing in the Banking Union","authors":"C. Hadjiemmanuil","doi":"10.2139/SSRN.2575372","DOIUrl":"https://doi.org/10.2139/SSRN.2575372","url":null,"abstract":"In early 2012, the Spanish state came under strong market pressure due to its engagement in round after round of large-scale bank bailouts. The country’s joint sovereignbank crisis shed new light on the nature of the euro area’s crisis. European decision-makers were forced to openly recognize the non-fiscal – that is, the banking and monetary – causes of sovereign distress and to accept the need for drastic policy solutions. The policy shift soon took concrete form with the launch of the Banking Union project in June 2012. The principal intention was to break the bank-sovereign link and to relieve the euro area’s weaker economies from the almost impossible burden of having to finance bank bailouts out of national fiscal resources. The mutualization of bailout costs through a common ‘fiscal backstop’ was, in other words, the key objective of the Banking Union as originally conceived. Subsequent policy choices, however, have marked a relaxation, if not partial abandonment, of this objective. The policy approach eventually adopted with regard to resolution financing in the context of the Banking Union’s Single Resolution Mechanism (SRM) is based on the burden-sharing norms of the Bank Recovery and Resolution Directive (BRRD), the instrument harmonizing bank resolution regimes across the EU. This guarantees the legal consistency of resolution frameworks within and outside the euro area. It is less certain, whether the chosen approach can insulate national state finances from the costs of bank bailouts and/or ensure the full equalization of the financial conditions for bank resolution everywhere in the euro area. The sufficiency of the planned common financial instruments is a particular concern.","PeriodicalId":117557,"journal":{"name":"LSE Legal Studies Working Paper Series","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-03-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130429347","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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