LSE Law Review

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  • 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

  • Chip Off the Old Block: Acknowledging the Obstacles to Widespread Adoption of Blockchain Bills of Lading

    The bill of lading has been a staple of the maritime shipping industry for centuries. Its evolution to facilitate three core functions was slow and arduous, with little change in the bill of lading's form and function ever since. The advances in electronic communication brought the prospect of electronic alternatives; however, the concept never succeeded, plagued with issues of excessive costs, trust and privacy concerns from industry participants and a lack of global legal recognition of the extension of the bill of lading to an electronic equivalent. However, the advent of blockchain technology has brought with it the prospect of blockchain bills of lading overcoming the problems of the past. This article argues that despite the promise of the technology, the global adoption of blockchain bills of lading is not guaranteed. It first addresses the lack of a universal legal framework, be it via uniform domestic laws or an international instrument, and evaluates the UNCITRAL Model Law on Electronic Transferable Records as an imperfect but necessary solution. It also highlights that the technology's commercial scalability is dependent on establishing a broad global network of industry participants, which in turn requires overcoming issues of trust in the technology and amongst industry competitors, and improving the accessibility of and interoperability between the current siloed blockchain solutions. These obstacles can arguably be overcome, but it requires addressing both the legal and non-legal issues simultaneously rather than linearly. This would also require unprecedented coordination between key industry stakeholders and public organisations at the domestic, regional and international levels

  • 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

  • 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

  • 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

  • When Are States (Not) Obliged to Save Citizens' Lives? Discovering the 'Restrictive Triage' which Undermines the Operational Duty under Article 2 ECHR

    According to Article 2 of the European Convention on Human Rights, when states do or should know that an individual is at a real and immediate risk of death, the state has an operational duty to take reasonable steps that might be expected to avoid that risk from materialising. This article explains and analyses interpretations of that duty, both by the European Court of Human Rights and by UK courts. A persistent inconsistency is found. On the one hand, judges in both fora have repeatedly championed Article 2 as a fundamental right enshrining a basic value of democratic societies. However, at the same time, a highly restrictive approach to the operational obligation has been favoured; calibrated first by the European Court of Human Rights and intensified by UK judges. Consequently, and by analysing a wide range of European and domestic case law, this article relates that for UK litigants the obligation's legal tests now comprise a materially compounding 'restrictive triage' of: (1) 'identifiability', (2) 'state knowledge', and (3) 'institutional deference'. Accordingly, and notwithstanding judicial rhetoric, the operational obligation is enforceable in the UK only in vanishingly few circumstances. This reality is criticised, and three reform suggestions are proposed to enable the obligation to most effectively minimise avoidable deaths

  • Resolving Investor State Dispute Settlement's Legitimacy Crisis: The Case for Reinstating the Requirement to Exhaust Local Remedies

    This article dissects a variety of structural issues that contribute to the 'legitimacy crisis' currently faced by Investor State Dispute Settlement (ISDS) and in particular, treaty-based Investor-State Arbitration (ISA). Primarily, it addresses issues of jurisdictional overlap with domestic courts, and the inability of ISA to engender 'good governance' norms and the rule of law in respondent states. By examining these structural issues and their relationship with the difficult, and at times inflammatory relationship between the international investment protection regime and domestic governments and judiciaries, it contends that further internationalization, or 'systemic reform' in lieu of the proposals made by the European Union is not adequate for resolving the legitimacy crisis. Rather, it proposes that a more radical, reintegration of domestic courts is necessary through the reinstatement of a traditional requirement of customary international law, the requirement to exhaust local remedies before commencing arbitral proceedings

  • 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

  • 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

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