Cambridge Law Review

Publisher:
University of Cambridge
Publication date:
2025-06-10
ISBN:
2753-5746

Issue Number

Latest documents

  • Within the Sound of Silence: Reassessing the Role of Reasoning in Judicial Decision-Making

    The growing reliance of the US Supreme Court on unexplained orders, commonly known as their 'shadow docket', has emerged as a major concern, generating strong criticism for undermining the traditional expectation that judges provide detailed justifications for their rulings. Without presuming to take a stance on the legitimacy of shadow dockets or the motivations that inform them, the increasing reliance on unexplained orders encourages a re-evaluation of the role and function of judicial reasoning within the broader spectrum of case law. This article re-examines the assumption that providing reasons for judicial judgments is inherently and universally desirable. It explores how providing reasons can sometimes conflict with other fundamental values underlying the legal process and argues for considering limits on judicial reasoning that extend beyond pragmatic concerns related to judicial economy (efficient management of judicial resources). The article highlights three key areas where such limits on reason-giving might be warranted. First, witness credibility assessments, in which the verbal articulation of the underlying reasons might distort the decision-making process. Secondly, 'hard cases', in which the risk of crafting detrimental precedents suggests a need to separate the resolution of specific cases from the development of broader legal doctrines, as illustrated by the US Supreme Court's handling of Bush v Gore. Thirdly, situations in which judicial silence speaks louder than the articulation of reasons and can serve as a catalyst for democratic deliberation, as manifested in the Supreme Court's handling of the 2014 same-sex marriage cases. Rather than advocating for Aristotelian intuition-based adjudication (where a judge's practical wisdom (phronesis) and cultivated sense of justice guide decisions, sometimes beyond explicit legal rules), the article emphasises the need to balance the benefits of judicial reason-giving with an awareness of its limitations and proposes a more strategic and deliberate approach to providing reasoned judgments

  • Addressing the Challenges of Due Process and Ethical Disparities in International Arbitration: The Need for Reform

    This article critically examines the challenges facing international arbitration, with a particular focus on the lack of a common understanding of due process and ethical standards. International arbitration has long been plagued by issues such as high costs, unpredictability, and the inability to appeal, but recent concerns about due process and ethics suggest a deeper problem. Due process and ethics are fundamental to the integrity of arbitration and, without proper reform, these issues threaten to undermine the system's credibility. This article begins by defining due process and ethics, followed by a detailed exploration of the problematic concept of 'due process paranoia'. The author's analysis is structured around three key arguments: first, that differing interpretations of due process across jurisdictions lead to its use or misuse as a 'sword' rather than as a protective shield; secondly, that the unequal ethical obligations imposed on counsel by different legal systems create ambiguity and potential ethical conflicts, such as 'double deontology' and 'inequality of arms'; and thirdly, that adopting clearer terminology for due process rights and establishing a universal International Code of Ethics would enhance predictability and fairness in international arbitration. By addressing these gaps, international arbitration could, in the author's view, avoid further erosion of its legitimacy and continue to thrive. Ultimately, this article suggests that, without harmonising these core principles, international arbitration risks being displaced by alternatives, leaving its future uncertain

  • Remedying Judicial Intervention into Private Contract: A Case for Abandoning the Creditor Duty Post-BTI 2014 LLC v Sequana SA [2022] UKSC 25

    This article identifies a worrisome trend in corporate law: increased judicial intervention in private corporate contracts and the invocation of moralistic conceptions of fairness and effectiveness that depart from the fundamental aspect of bargain. This problematic approach is clear in Australian and English jurisprudence on the debt-equity conflict between shareholders and creditors—precisely, the unprincipled expansion of fiduciary duties to provide enhanced protection to creditors when a company goes insolvent. This article focuses on the theoretical and practical development of the creditor duty since it was introduced by Australian jurisprudence in Walker v Wimborne, with two keys aims: first, to reassert the primacy of contractual risk allocation; and secondly, to demonstrate that there exists no principled basis for a creditor duty in England and Wales (specifically focusing on the doctrinal infirmities in the UK Supreme Court case of BTI 2014 LLC v Sequana SA [2022] UKSC 25). This article identifies an essential normative conflict: what is worse, a lack of adequate compensation for the level of risk borne by the creditors as the new residual claimants or the imposition of a risk allocation by law that was never bargained for? The position adopted in this article is that fairness grounds should not meddle with debtor-creditor risk allocation—not at the expense of principle, coherence, or contract

  • Repairing the English Civil Law of Bribery: Fixing Johnson v FirstRand Bank Ltd [2024] EWCA Civ 1282

    The recent Court of Appeal decision of Johnson v FirstRand Bank Ltd ('FirstRand ') held that a car dealer acting as a broker between a consumer and a lender for car finance will be under a 'disinterested duty' and a fiduciary duty. If the lender has paid a 'secret' or partially disclosed commission to the dealer, the dealer will be liable under the tort of bribery or for a breach of fiduciary duty. The lender will also be liable primarily under the tort of bribery or as an accessory to a breach of fiduciary duty. This result has shocked the car finance industry, lenders, and banks. It is submitted that there are issues in the reasoning of FirstRand and that this is because of deficiencies in the law of bribery itself. Conflicting authorities and incoherent differences between the common law and equitable action have resulted in a widening of civil liability to an unjustified degree. We examine the history of the law of bribery and the reasoning in FirstRand, and we suggest more careful analysis of fiduciary duties and more careful application of accessory liability. We also propose subsuming the common law action into the equitable one. This reform, alongside improved legal analysis of the duties and accessory liability, is more in line with the economic realities of brokerage and is better for consumers as it reduces the likelihood of price increases and facilitates the availability of finance. It is also more desirable from the perspectives of coherence between common law and equity, as the law should not have two answers to one question

  • With Love and Affection: Rethinking the Fairness of Proximity of Relationship in Secondary Victim Claims

    Since the 1990s, English tort law has recognised the limited circumstances in which a claimant is owed a duty of care for psychiatric injury caused by an accident that they were not directly involved in. In particular, the eponymous Alcock control of 'proximity of relationship' mandates that a secondary victim must have a sufficiently close relationship with the participant in the accident (the primary victim). This article examines the fairness of proximity of relationship as a means of restricting claims in secondary victim cases, ultimately arguing that it requires reform. Section II provides a doctrinal analysis of Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310, identifying three weaknesses within the judgment. Section III provides a quantitative analysis of the case law on secondary victims since Alcock, revealing how the courts have not always conformed to the requirements of proximity of relationship, as well as analysing the role of the 'sudden shock' requirement and gender stereotypes in exacerbating the unfairness of this control mechanism. Thereafter, Section IV explores and compares alternative avenues for reform of this control mechanism, including both conservative and radical changes

  • Severing the Hunt for Tortfeasor-Caregiver Compensation: The Singaporean Rejection of Hunt v Severs [1994] 2 AC 350 (HL)

    In 2024, in the case of Rajina Sharma v Theyvasigamani [2024] SGHC 42 ('Rajandran'), the Singaporean High Court was faced with a highly similar fact pattern to that which arose in the English case of Hunt v Severs [1994] 2 AC 350 (HL) 30 years earlier. A defendant tortfeasor had caused a motorcycle accident to be suffered by a plaintiff victim, and the former subsequently provided voluntary care to the latter at his own expense. However, the Singaporean court departed from Hunt and allowed the plaintiff to claim compensation from the tortfeasor for the voluntary care that he had provided himself. This article will compare the approaches taken by the two courts, as well as the problems that arose from the original Hunt judgment. It is submitted that the Rajandran approach represents a more principled and just solution than its English predecessor, but that this could be further improved by adopting a 'closed loop' model of compensation proposed by the author

  • Foreword
  • Deliveroo in the Supreme Court: The Right to Collective Bargaining and the Employment Status of Platform Workers

    This article examines the recent decision of the UK Supreme Court in Independent Workers Union of Great Britain v Central Arbitration Committee [2023] UKSC 43 ('Deliveroo') and considers its wider implications for the employment status of those working in the 'gig' or 'platform' economy more broadly. Before assessing the reasoning of the Court, this article suggests that the increasing prominence of platform work has challenged many aspects of the traditional law on employment status. It proceeds to analyse the approach of the Court to the interpretation of article 11 of the European Convention on Human Rights ('ECHR'), insofar as it establishes that states are under a positive obligation to secure workers' rights to collective bargaining only where the workers in question stand in an 'employment relationship'. It then explores the Court's interpretation of the weight to be attached to the contractual right to appoint a substitute in the inquiry into the existence of any such employment relationship. Finally, it contemplates options for reform of the present law on employment status. Ultimately, it is argued that the Supreme Court adopts an unduly restrictive approach with wider implications for the 'purposive' trend of modern employment law. In the light of that observation, this article briefly makes the case for statutory reform

  • Rethinking Amnesty: A Critical and Prescriptive Response to Amnesty in the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023

    The Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 ('Troubles Legacy Act') is a recent piece of legislation intended to 'promote reconciliation' in Northern Ireland following the Troubles. However, its amnesty provisions have generated outrage from victims' families, political parties in Northern Ireland, and international actors alike. Following the recent Northern Ireland Court of Appeal decision in Dillon and Others, which largely endorsed the earlier determination of the Belfast High Court that the Act's conditional amnesty provisions violate the UK's obligations under the European Convention on Human Rights ('ECHR') and the Windsor Framework, it appears that the Troubles Legacy Act's days are increasingly numbered. Although this article agrees with the Act's many critics that these amnesty provisions are ill-suited to Northern Ireland today, it disagrees that the correct response is to repeal the Act entirely. Instead, the article outlines two possible replacements for the current amnesty provisions that would serve similar ends without incurring an unjustified prima facie wrong. Overall, its analysis shows that the amnesty of the Troubles Legacy Act is prima facie wrongful, and that this wrongfulness is not justified, but that alternative provisions that do not have the same problems would render the Act permissible

  • Bridging the Private-Public Divide in Investor-State Arbitration: Can Retrofitting Amicus Curiae Improve How Tribunals Consider Human Rights Issues?

    Investor-State Dispute Settlement ('ISDS') arbitration is undergoing a legitimacy crisis, with more states denouncing investment agreements than signing onto them. A major cause of this crisis is the increasing public critique of ISDS as a process that systemically excludes public and human rights considerations. In response to this exclusion, rightsholders who are consistently excluded from ISDS have increasingly filed third-party submissions to ISDS tribunals in the hopes that these submissions will force tribunals to consider their perspectives. This is a growing trend, especially amongst Indigenous peoples in remote or resource-rich areas of Latin America, Africa, and elsewhere because their input is often excluded from the dominant public rhetoric argued by the state in ISDS arbitration. This article seeks to address whether such third-party submissions, often called 'amici curiae', can provide an effective remedy for rightsholders through comparing how amici curiae could fulfil the criteria outlined in the United Nations Guiding Principles on Business and Human Rights ('UNGPs'). It finds that amici curiae are currently too unpredictable to ensure an equitable remedy for rightsholders. However, if arbitral centres were to reform the amicus curiae application process and allow for greater transparency, the unique ability of amici curiae to link public and private interests in ISDS could make them a viable option for rightsholders to have their rights recognised in ISDS proceedings

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