English & Commonwealth Law eJournal最新文献

{"title":"Le Brexit à l’épreuve du contentieux économique international: perspective comparative entre le droit de l’OMC et le droit international de l’investissement (Brexit in International Economic Adjudication: A Comparative Perspective between WTO Law and International Investment Law)","authors":"Marwa Semhat","doi":"10.2139/ssrn.3149840","DOIUrl":"https://doi.org/10.2139/ssrn.3149840","url":null,"abstract":"<b>French Abstract:</b> Le retrait du Royaume-Uni de l’Union européenne est à l’origine de différents débats quant à ses modalités et ses conséquences. Chose certaine toutefois, en l’absence d’un accord avec l’Union européenne, une refonte générale du cadre législatif en vigueur est attendue. Les nouvelles mesures qui seront adoptées affecteront négativement les entités commerciales basées au Royaume-Uni qui ne pourront plus compter sur la libre circulation des marchandises, des services, des personnes et des capitaux qui a jusque-là facilité leurs échanges avec l’Europe suscitant inévitablement des questionnements sur des recours possibles pour ces entités. Le droit de l’OMC et le droit international de l’investissement ont traditionnellement limité l’espace réglementaire afin que celui-ci ne soit utilisé par un État que dans le respect des attentes de ses cocontractants. À cet égard, nous évaluons dans cet article si ces deux disciplines érigent des limites au droit du Royaume-Uni de procéder à un remaniement de son cadre législatif post-Brexit. En ce qui a trait au droit de l’OMC, nous arrivons à la conclusion qu’un recours exercé contre le Royaume-Uni ne semble pas viable. Les conséquences juridiques d’un retrait de l’Union européenne dans le cadre de l’OMC se limitent à une modification des engagements qui constitue un droit «absolu» de tout Membre de l’OMC. À l’opposé, un recours initié par un investisseur établi au Royaume-Uni contre le gouvernement britannique semble jouir de fondements juridiques plus solides en raison de la portée large des attentes légitimes reconnues aux investisseurs par les tribunaux arbitraux. Ce contraste entre les conséquences du Brexit dans les deux disciplines est expliqué par des différences fondamentales dans la nature du droit de l’OMC et du droit international de l’investissement sur lesquels nous nous penchons avant de conclure. <b>English Abstract:</b> The withdrawal of the United Kingdom from the European Union is at the origin of various debates as to its modalities and its consequences. Certainly, in the absence of an agreement with the European Union, a general overhaul of the existing legislative framework is expected. The new measures that will be adopted will adversely affect UK-based business entities that will no longer be able to rely on the free movement of goods, services, persons and capital that has so far facilitated their trade with Europe. WTO law and international investment law have traditionally limited political regulatory space ensuring that States can only use it in accordance with the expectations of their co-contracting parties. In this regard, we assess in this article whether these two disciplines are setting limits on the UK's right to proceed with a modification of its post-Brexit legislative framework. With respect to WTO law, we conclude that an action against the United Kingdom does not seem viable. The legal consequences of a withdrawal from the European Union in the WTO f","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-12-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124025901","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 Westminster Parliament's Formal Sovereignty in Britain and Europe from a Historical Perspective","authors":"J. Allison","doi":"10.17863/CAM.20545","DOIUrl":"https://doi.org/10.17863/CAM.20545","url":null,"abstract":"In the historical backdrop to domestic British debates about Brexit has been tension between two contrasting and competing conceptions of the Westminster Parliament’s sovereignty. In issue has been whether or how parliamentary sovereignty has been subject to constraint, to limitations of form or substance, in strict legal theory or in practical politics. The tension was the product of a doctrinal dichotomy that Albert Venn Dicey introduced in the late-nineteenth century. He introduced it in attempting to juridicalise or juridify the constitution in his foundational and multi-edition textbook ‘The Law of the Constitution’. The dichotomy was, on the one hand, of a formal legal conception of Parliament’s sovereignty as limitless in theory and, on the other hand, of a substantive political conception of its sovereignty as limited in actuality. The tension between these legal and political conceptions has been manifest since then in various formal exercises of Parliament’s sovereignty that have impaired its substance. They include parliamentary enactments that conferred self-government in the process of decolonisation, that granted the executive powers to amend parliamentary legislation through “Henry VIII clauses”, and that delegated various governing powers in devolution. The tension has also been manifest in the enactment of the European Communities Act 1972, by which the Westminster Parliament made domestic legal provision for the UK’s original inclusion in the European Communities. The tension was exacerbated by the unqualified assertion of the unconditional supremacy of Community law by the ECJ, both before and after the 1972 enactment. Through judicial minimalism or false economy - failure to acknowledge, explain and address pressing issues at stake - in the response of the highest British court to the ECJ’s assertion of supremacy, problems in the Westminster Parliament’s legal and political sovereignty were left unresolved and vulnerable to serious objection. They contributed to making the UK’s continued membership of the EU precarious and unstable. The doctrinal and constitutional options and implications for the UK are challenging, as are various searching questions for the EU.","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-12-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115460568","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":"Does Apparent Authority Wane?—A Problematic Question in English Agency Law","authors":"Peter G. Watts","doi":"10.2139/ssrn.3915409","DOIUrl":"https://doi.org/10.2139/ssrn.3915409","url":null,"abstract":"When does a third party who has established that at some point a principal held out an agent as authorised to act for the principal lose the right to rely on that holding out? The case law on this topic in Commonwealth jurisdictions is surprisingly inconclusive and complex. The answer to the question, it is suggested, should be very simple. The third party should lose the right to rely on a holding out once it becomes unreasonable to rely on it. It is true that such a simple answer does not admit of mechanical application. But mechanical rules are no good if they frequently fail to come near to the merits of human interaction. An edited version of this paper was published in [2018] Journal of Business Law 663.","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"229 7","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133848074","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":"UK National Report: EATLP Annual Congress 2018 on Tax Transparency","authors":"Stephen Daly","doi":"10.2139/SSRN.3072238","DOIUrl":"https://doi.org/10.2139/SSRN.3072238","url":null,"abstract":"The report seeks to articulate the issues which arise in the context of tax transparency in the UK. Section 2 investigates the procurement of taxpayer information by HMRC and how it is used. Section 3 analyses the protections in place for taxpayers in respect of their tax information. Section 4 finally looks at the transparency of HMRC.","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"89 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-11-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126505165","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 Gender Pay Gap: A Briefing","authors":"Kate Andrews","doi":"10.2139/ssrn.3853738","DOIUrl":"https://doi.org/10.2139/ssrn.3853738","url":null,"abstract":"While the official gender pay gap figure is 9.1% for full-time workers, the pay gap between men and women aged 22-39 is negligible. The gap widens later in life, often as a result of women taking time out of the workplace to raise children, and returning to work in a part-time capacity, reducing future earning potential. Calculations that put the pay gap above 9.1% are achieved by moving away from like-for-like comparisons between men and women in the work place. The Equal Pay Day campaign calculates a figure five percentage points higher, or 55% higher, than the official figures by using the mean rather than the median of the ONS data, thereby including outlier salaries.","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"62 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-11-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122066876","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":"Eating or Meeting? The Dubious Case for Free School Breakfasts","authors":"T. Kealey","doi":"10.2139/ssrn.3853731","DOIUrl":"https://doi.org/10.2139/ssrn.3853731","url":null,"abstract":"The Conservative Party’s manifesto for the June 2017 general election included a policy to replace free school lunches with free school breakfasts for all school children. After the election, the policy was abandoned. The Conservative manifesto justified the policy by appealing to research into the educational effects of free school breakfasts conducted by the Institute for Fiscal Studies in 2016. This research was conducted to a high standard. However, the widespread interpretation of the findings was incorrect. The research does not show that school breakfasts are required as a remedy for children arriving at school hungry. Nor did it show that the improved educational performance of the children involved in the study was the result of eating breakfast. The findings of this research, and previous studies, strongly suggest that it is the social element of these school clubs, not the nutritional element, that explains improved educational performance. Misrepresenting the findings as identifying nutritional rather than social factors in educational performance is likely to misdirect public policy, not only concerning education but concerning children’s health. The main nutritional problem in children from poor British families is not hunger but over-eating and obesity.","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"252 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-11-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122461350","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":"Social Security Overpayments and Debt Recovery: Key Developments","authors":"P. Sutherland","doi":"10.2139/ssrn.3289416","DOIUrl":"https://doi.org/10.2139/ssrn.3289416","url":null,"abstract":"It is important to understand the history of the social security legislation, and other contexts, such as the language of 'error', 'overpayment', 'debt' and 'fraud', to fully understand the social and legislative basis of social security debt recovery today.","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-07-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122228865","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 International Rule of Law and Economic Development","authors":"Nadia E. Nedzel","doi":"10.2139/ssrn.2963152","DOIUrl":"https://doi.org/10.2139/ssrn.2963152","url":null,"abstract":"The Rule of Law and economic development have long been recognized as being inter-related – a successful society has both. The question is how the two are related. Some scholars, whether in philosophy, law, history, or economics, argue that common law is more supportive of economic development, while others reject the distinction between common law and civil law as in any way affecting economic development. This multidisciplinary article approaches the question from a new contextual perspective that includes economics, philosophy, history, and law. It posits that while they are similar, the civilian term, Rule through Law (Rechttsstaat or L’Etat de Droit) wherein government is supposed to limit itself is historically less effective at being supportive of economic development for understandable reasons. \u0000This study does NOT argue that Common Law is ‘better’ than Civil Law. This study does show, however, that the common law is traditionally premised on a different relationship between the individual and government, and it is this non-instrumental relationship focused on problem-solving that encourages entrepreneurship and hence economic development.","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"32 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117293426","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":"Reversing a Withdrawal Notification under Article 50 TEU: Can a Member State Change Its Mind?","authors":"A. Sari","doi":"10.2139/SSRN.2872152","DOIUrl":"https://doi.org/10.2139/SSRN.2872152","url":null,"abstract":"The purpose of this paper is to determine whether a Member State of the EU may revoke its notice to withdraw from the Union under Article 50 TEU. The answer to this question has significant legal and political implications for the relationship between the Member States and the EU. More urgently, it also has significant practical implications for the withdrawal of the UK from the Union. While the reversibility of the UK’s impending notice to leave has taken centre stage in the debate on Brexit, the matter has not been assessed in depth. The present paper offers a systematic analysis of Article 50 TEU based on the applicable rules of interpretation. It demonstrates that the text and context of Article 50 TEU, the general scheme of the Treaties, other rules of international law and the relevant preparatory work all confirm that a notice to withdraw is in fact reversible. The Supreme Court should therefore revisit and overrule the High Court’s decision on this point in Miller. Since a systematic interpretation of Article 50 TEU leaves no scope for reasonable doubt about its meaning, the Supreme Court may do so without having to refer the question to the Court of Justice of the European Union.","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"101 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-03-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133012780","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":"Carbon Pricing and Trading: Regulatory Governance in Australia 2008-2017","authors":"C. Arup","doi":"10.2139/SSRN.2295795","DOIUrl":"https://doi.org/10.2139/SSRN.2295795","url":null,"abstract":"Working within a framework of regulatory governance, this paper collects the experience with the Australian Labor Government's carbon pricing mechanism and trading system near to the 2013 national parliamentary election. It also foreshadows the Coalition parties' direct action plan.","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-03-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125981835","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}