LSE Law Review
- Addressing the Inadequacies: A New Multi-Faceted Solution to Double Hatting in ISDS
In Investor-State Dispute Settlement (ISDS), 'double hatting', or the playing of multiple roles by arbitrators in different ISDS proceedings as counsels, expert witnesses, or tribunal secretaries, is a problematic phenomenon. This regrettable practice results in the monopolisation of power and builds up suspicions regarding such arbitrators' impartiality which, in turn, threatens the legitimacy of the whole ISDS regime itself. Therefore, to sustain the current ISDS system as a viable dispute resolution option for investors and states, there is a need to regulate double hatting at the earliest. To that end, numerous solutions have been forwarded by scholars and international bodies alike. The recently proposed Draft Code of Conduct for Adjudicators in ISDS is a significant development in this field. However, all these solutions are either unviable or inadequate as they fail to account for the variations in the forms and intensities of double hatting. To remedy this lacuna, this article analyses the existing proposals, including the Draft Code of Conduct, and, thereafter, develops a more comprehensive solution by inculcating measures such as compulsory disclosure requirements and temporary bans. Further, it adapts these measures to regulate, and minimise, concurrent and successive double hatting across different classes of arbitral proceedings. By doing so, this article adopts a novel, multi-faceted approach to overcome the problem on a case-by-case basis, serving its aim of bringing to the table a viable and effective solution—one that ticks the maximum number of boxes—to resolve the risks posed by double hatting
- Self-Defence Against Non-State Actors: Reconceptualising the Legality of the 'Unwilling or Unable' Test in Light of the Doctrine of Necessity in International Law
The 'unwilling or unable' test is a real-world challenge that has the potential to make a mockery of the cornerstone of modern international law in Article 2(4) of the UN Charter. The increasing prevalence of unattributable armed attacks by NSAs provides an opportunity for powerful victim States to expand the notion of the inherent right of self-defence through the 'unwilling or unable' test, without any real thorough basis to their reasoning. To complicate matters further, the dangers of State silence in the face of the unwilling or unable justification from primarily powerful Western States seeking to invoke self-defence, may end up playing into the hands of proponents of the 'unwilling or unable' test. This potentially contributes to 'norm entrepreneurship' and the shaping of international law in their favour through the expansion of the law of self-defence to incorporate the test itself. Despite the uncertainty surrounding the legality of the test, the fact remains that the legitimation of predatory force against primarily weaker host States in the Global South by primarily powerful victim States in the Global North cannot continue and has to be addressed in order to avoid the abuse of the test in the name of self-defence. The principle of necessity provides this foundation and is the key to engaging States in a discourse that seeks to bring the 'unwilling or unable' test into greater compliance with the jus ad bellum regime. This paper refines Deeks' test, using the notions of reasonableness and objectivity under the principle of necessity, and aims to contribute to the debate on the 'unwilling or unable' doctrine by clarifying the possible practical application of the test in order to strike as close a balance between the inherent right of self-defence on one hand, and State sovereignty and territorial integrity on the other
- Too Little, Too Late: Facebook, GIFs, and the CMA
The legal mechanisms dealing with mergers, until recent developments, have lost sight of the principles of competition law. The CMA's ruling on the Meta–Giphy acquisition is very telling of the approach to come, but it is submitted that so much has passed through the weak sieve provided by competition law that to ring the alarm bells now would be unfortunate
- Principle, Pragmatism, and Policy in Determining the Scope of the Duty of Care and Extent of Liability for Consequences
Manchester Building Society v Grant Thornton UK LLP and Meadows v Khan are twin Supreme Court judgments concerning what is often termed the scope of the duty of care in negligence. This controversial principle seeks to determine whether a loss (or part thereof) factually caused by the defendant's negligence is attributable to the defendant, or whether the defendant is not liable because the loss is outside the scope of their duty of care. In both cases, the decisions were unanimous but their Lordships disagreed as to how the principle should be formulated and addressed. This note critically analyses three issues arising from the judgment. First, it evaluates the conceptual propriety of treating the principle as involving two separate issues, namely the scope of the defendant's duty and whether the claimant's loss falls within it (i.e., the extent of liability for consequences) and concludes that keeping the issues apart, as the majority did, is preferable. Second, however, it argues that the majority's treatment of the second issue was somewhat cursory and suggests two possible approaches, extrapolated from the majority's reasoning and Lord Leggatt's concurring judgments respectively, to determine whether the defendant's extent of liability encompasses a particular loss. Finally, it considers the role of policy-based reasoning in determining the scope of the defendant's duty. It argues that policy-based reasoning remains a useful tool to supplement the majority's focus on the purpose for which the duty existed, which in itself may occasionally lead to confusion
- Fine margins: Examining the minority-majority divide in Enka v Chubb
The question of how to determine the law of the arbitration agreement has long been a hotly debated topic in the field of international commercial arbitration. While this contentious issue was addressed by the UK Supreme Court in Enka v Chubb, the majority and minority judges disagreed on the appropriate approach to take when an express choice of law governing the main contract is absent. In this article, the author examines the diverging opinions and argues that the majority’s framework is preferable on both public policy and theoretical grounds
- The Case for Eco-Liability: Post Okpabi Justifications for the Imposition of Liability on Parent Companies for Damage caused to the Environment by their Subsidiaries
This article seeks to argue for the imposition of liability onto parent companies for the damage to the environment caused by their subsidiaries. 'Eco-liability' will be suggested to be an appropriate means through which firms can be encouraged to engage in sustainable practices. This argument will be made in reference to the recent decision in Okpabi v Royal Dutch Shell,1 which, although somewhat positive in light of the facts of the case, was too limited in scope to take adequate account of the needs of the environment as a stakeholder. It will be posited that the environment must be recognised as a stakeholder due to its considerable and growing influence over corporate governance and practice. The environment will be considered a secondary stakeholder due to this influence. The independence of the environment as a stakeholder shall be demonstrated through an examination of the legal, social and commercial emphasis that is placed on its status within the corporate environment. Subsequently, this article submits that the environment has needs that should be recognised through an appropriate legal framework. It will be contended that this legal framework cannot be achieved through case law, with the Okpabi judgement representing the limitations on a case-based approach to environmental accountability. It will thus be proposed that statutory eco-liability be introduced, to ensure sufficient accountability exists for corporations that do not operate in a sustainable manner
- The Regulation of Islamic Finance in the UK: A call for change
For decades, the UK has been the leading nation in the Western world when it comes to Islamic finance. Despite this fact, the Islamic banking industry within the UK is still far behind conventional finance in terms of growth and development. This article argues that a major obstacle in the path of this industry's growth is the regulatory framework which it is currently subject to. As it stands, Islamic banking is regulated by the Financial Conduct Authority and the Prudential Regulation Authority in the same way as its conventional counterpart. This represents an obstacle for the growth of the industry since it subjects Islamic finance to rules created with only conventional banking in mind. This article posits that the current regulatory framework should change so that it accounts for the unique features of Islamic banking. Chapter 1 of this article contextualises the debate by describing the operation of Islamic banking before going on to highlight how the risks involved in this type of banking differ from those inherent in conventional banking. Chapter 2 builds on this analysis by examining the interplay between Islamic banking and two regulated aspects of banking: capital adequacy ratios ('CARs') and guaranteed deposits. Chapter 3 concludes the discussion by pointing out a number of issues which could undermine the adoption of a more industry-specific approach by the UK regulators and offers starting points from which these issues could be resolved
- Around the Black Box: Applying the Carltona Principle to Challenge Machine Learning Algorithms in Public Sector Decision-Making
For the first time, important public sector decisions are being taken in the absence of an accountable and identifiable human being. Instead, they are increasingly outsourced to machine learning algorithms (MLAs) to cut costs, save time, and, in theory, improve the quality of decisions made. However, MLAs also pose new risks to fair and legitimate decision making such as bias and rigidity. These risks are often obfuscated by 'intrinsic opacity’: the complex interplay between extremely large datasets and code which makes it impossible to trace the decision pathway of an MLA. This 'black box problem’ frustrates the review of a public sector decision made by an MLA, as the court is unable to trace the decision-making process and so determine its lawfulness in judicial review. In such cases, it is proposed that the principles of non-devolution surrounding the Carltona principle - the doctrine that allows department officials to exercise powers vested in a minister - offer a promising way of 'getting around’ the issue of intrinsic opacity. By conceptualising the outsourcing of a decision to an MLA as an act of devolution, the law can effectively regulate the slippage of democratic accountability that the use of an MLA necessarily entails
- State Jurisdiction and the Permissiveness of International Law: Is the Lotus Still Blooming?
The Lotus rule has traditionally stipulated that, in international law, any conduct not specifically prohibited is allowed. However, there now is considerable disagreement as to whether this principle is still valid. This article argues that one should distinguish between the Lotus principle's conceptual origins and its core content. It will be shown that, given the evolution of international law, the positivist assumptions on which Lotus was initially based are no longer tenable. On the other hand, the basic Lotus presumption, which requires state action to be deemed lawful unless it violates an international prohibition, is still viable and can be reconciled with the structure of modern international law. This 'enlightened reading of the Lotus rule' will subsequently serve as a lens for examining the international rules on state jurisdiction. The conclusion will be that this area of international law demonstrates that the presumption of lawfulness still applies, but that the sources from which relevant international prohibitions can be derived have diversified
- Conversion Therapy Bans and Legal Paternalism: Justifying State Intervention to Restrict a LGBTQIA+ Individual's Autonomy to Undergo Conversion Therapy
Conversion therapy is harmful, ineffective and lacks scientific and medical justification; yet 2% of LGBTQIA+ individuals in the UK have undergone it, and a further 5% have been offered it. This begs the question: why is conversion therapy still not banned in the UK? This article aims to rebut a common argument employed against conversion therapy bans, that is the right of LGBTQIA+ individuals to choose to change their sexual orientation or gender identity, put simply, individual autonomy. Engaging with Gerald Dworkin's hard paternalism and Joel Feinberg's soft paternalism, it posits that conversion therapy bans are a legitimate form of state interference with an individual's autonomy, as the decision to undergo such therapy is nonrational and not voluntary enough. The argument relies on the logics behind existing paternalistic bans on physician-assisted suicide for persons with disabilities, consensual cannibalism and healthy limb amputation to show that a ban on conversion therapy similarly upholds LGBTQIA+ individuals' equality and dignity. Ultimately, this article defends the position that a paternalistic ban on conversion therapy is legally and morally justified, even if the decision to undergo therapy is consensual
- Afghanistan: Towards Wider Interests of Justice?
- One Belt One Road Disputes: Does China Have Dispute Resolution Methods Fit for Purpose?
- The Role of Adverse Possession in Modern Land Law
- An Examination of the Practicability of Antony Duff and John Gardner's Legal Moralism as a Basis of Criminalisation in Contemporary English Criminal Law
This article critically examines the role played by moral values in the scope and structure of criminal offences. In analysing the nature and practicality of legal moralism as a basis of criminalisation, comparisons will be made to notions of responsibility and judgement, and public accounts of...
- Pacta Sunt Servanda: Contrasting Disgorgement Damages with Efficient Breaches under Article 74 CISG
The contractual remedy of disgorgement damages has increasingly gained acceptance in international legal practice. Disgorgement of profits can result from a situation in which contractual breach is incentivised due to its financial superiority, ie profitability, over the proper fulfilment of the...
- The Separability of Law and Morality as an Intriguing Conundrum within Legal Positivism: Lessons from The Concept of Law
This essay critically examines HLA Hart's conception of the relationship between law and morality as delineated in his most famous work, The Concept of Law. In evaluating his contention that there is no necessary conceptual connection between law and morality, Hart's conceptions of the 'minimum...
- Analysing the Issue of Psychiatric Assisted Dying from the Perspective of Parity: Does Parity Demand Access?
The UK is ostensibly committed to achieving parity of esteem between mental and physical health, yet the attempts to legalise assisted dying in recent years have focused exclusively on physical suffering. In this article, I will analyse the issue of psychiatric assisted dying from a 'parity...
- Putting Consent in its Place: Proceduralism and Paternalism in EU Data Protection Law
It is highly likely that any discussion on EU data protection law begins with the notion of consent. Yet, this carries the danger that a disproportionate load is placed on consent as a regulatory tool. This letter argues that although consent can – and should – play an important role in...
- Transnational Corporate Liability Litigation and Access to Environmental Justice: The Vedanta v Lungowe Case
On April 10, 2019, the Supreme Court of the United Kingdom released the Vedanta Resources Plc & another v Lungowe & others judgment. This case dealt with an English domiciled parent company's possible liability for alleged environmental damage caused by one of its subsidiaries in Zambia. Based on...
- Appendix A [Last Rights proposed legal statement]