Liverpool Law Review最新文献

The covid-19 pandemic, and in particular, the rise in pet ownership, the greater focus on home-life during lockdowns and the normalisation of hybrid-working conditions post-pandemic, has shed light on an under-researched area of law that affects millions of people across the world: the use of ‘no pet’ covenants in private rental housing. This article identifies the prevalence of ‘no pet’ covenants as a socio-legal problem that is of global significance. It assesses the legal regulation of pets in private rental housing through a Harm Assessment approach that has global application. A Harm Assessment approach balances harms to various stakeholders in both the use and restriction of ‘no pet’ covenants. In countries that have no legal regulation of pets in housing it can be used to assess the need for legislation. This approach considers the character, magnitude and likelihood of the harm, something which has had little consideration to date. Drawing, by analogy, on the work of Feinberg and his analysis of harm within the context of the legitimacy of state interference with individual liberty, this article adapts his theory of harm to assess the need for legal regulation of pets in rental housing. The legitimacy of a Harm Assessment approach is supported by the existing literature on ‘no pet’ covenants, from which the dominant theme of harm emerges. Identifying and weighting the types of harm to be balanced varies depending on cultural, religious and geographic considerations and further research is needed to better understand the harms in different countries.

International law is becoming increasingly more specialized and diversified. In response to these developments, international lawyers now widely refer to international investment law, European human rights law and many other branches as ‘special regimes’. Scholars in the field see the proliferation of special regimes as a threat to the unity of the international legal system. In so doing, they are applying the traditional definition of a special regime as a collection of norms. This article encourages readers to conceive instead of a special regime as a community of practice—as an activity structured around the normative presuppositions of the people and institutions that participate in it. This new understanding, the article argues, is compatible with all predominant theories of law. When you adopt it, importantly, the proliferation of special regimes does not have the disintegrating effect that many scholars believe it to have.

Due to the increasing recognition and significance of emergency arbitration (EA) in the business and trade community in recent decades, almost all major arbitral institutions have introduced emergency arbitration into their arbitration rules. It is to be noted that the arbitral institutions have unilaterally developed these EA mechanisms to facilitate and aid the business or trade community, irrespective of any directive from states or UN-like agencies. As a result, there is some disagreement about whether EA decisions can be legally enforced in state courts. Consequently, a 2015 study by Queen Mary/White & Case found that 79% of respondents considered the enforceability of emergency arbitrator decisions to be the most important factor influencing their choice between State courts and emergency arbitration while seeking urgent relief. While investigating various EA procedures, the authors have discovered that the EA rules evidently lack enforcement mechanisms. In this paper, the authors explain the issue of the enforcement of EA rulings with particular emphasis on India. After examining various ways of enforcing EA decisions, the authors concluded that the ultimate solution, i.e., legislative amendment, is essential both internationally by amending the NY Convention 1958, or UNCITRAL Model Law, and domestically by amending national arbitration laws to remove the legal impediments and to enforce EA decisions in State courts.

Emotion is inherent in our everyday use and ownership of property. It may drive neighbours to litigate a boundary dispute in the courts, or a first-time buyer to purchase a home that significantly exceeds her budget. It can even be seen in the delight that a child experiences when she is given a gift for her birthday. Despite this, there is relatively little scholarship on the connection between law, emotions and property theory, and this article aims to address that gap in the knowledge. Drawing on the common law tradition, it analyses different social, spatial, and material conceptions of property to explain how emotion may affect property relations, as well as the way that property may cause a person to experience particular feelings, such as anger, sadness, happiness, frustration, envy and jealousy. It argues that emotion and property law cannot be separated easily, and instead, they should be regarded as being mutually constitutive and in an ongoing dialectical relationship. For that reason, this article concludes that more attention must be given to the role of emotion in shaping property relations by lawyers, academics, and policymakers, and how this can be reflected in the design and implementation of law.

Since some solutions are unsound, the Rio Conventions explore nature-based solutions to tackle environmental issues. The Convention on Biodiversity (CBD) promotes nature-based approaches, while Egypt has been invited to integrate water into the Conference of the Parties (COP 27) negotiations. However, despite the benefits of water for human and environmental systems highlighted by the scholarship, gaps exist in the knowledge concerning the status of water within the international climate regime. This paper analyses policies, legal resources, and literature on individual rights and global warming to investigate water’s current state and potential future roles within the Paris Agreement. This study first reviews the existing scholarship to explore water-related complexities and challenges, the specific gaps and weaknesses in the current international climate change regime that water status might address, and why and how water is an unexploited potential. It then examines the concept of water within the Paris Agreement regime and its value within the Anthropocene. It then explores the potential role of water in achieving the Paris Accord objective. The paper suggests that water could be a grundnorm of the jus cogens type for the global warming regime. In conclusion, water is an unexploited potential under the Paris Agreement. Findings from this study can inform the efforts of the International Law Commission (ILC) to amend the jus cogens principles that underpin international law.

Abstract

Besides state actors, non-state actors and particularly private companies target human rights defenders (HRDs) and violate their rights to intimidate and stop them from challenging their interests. Despite the absence of responsibility of non-state actors in international human rights law, the United Nations Guiding Principles on Business and Human Rights (UNGPs) set out global standards and acknowledge the role of HRDs in the promotion of human rights, urging corporations to work closely with defenders. Considering the effectiveness of the UNGPs, the article explores the potential for protecting HRDs within the framework and concludes that the UNGPs could be utilised to enhance the protection of defenders in relation to business activities. It also suggests that current efforts of implementation would be strengthened by mandatory human rights due diligence laws at the national and regional levels, and emphasises that a clear inclusion of corporate responsibility to respect defenders is required, as it would be beneficial for both sides, defenders and business enterprises.

In the area of business law and enterprises, the internationalization of business activities and the transnational choice of legal form is playing an increasingly important role. This is especially true in times of globalization and a common internal market within the European Union (EU). Consequently, companies are increasingly confronted with legal questions of cross-border choice of legal form and transformations. Here, the cross-border change of legal form can offer an alternative to a merger. Compared to mergers, the cross-border change of legal form of corporations within the EU/EEA is easier to carry out and more flexible. This study introduces the concept and the functioning of the cross-border change of legal form, and elaborates its potential and its limitations in comparison to transnational mergers. The cross-border change of legal form offers a new possibility of transnational reorganization. This article provides the theoretical and legal basis and supports the decision-making in transnational conversions, in which cases a cross-border change of legal form and in which cases a transnational merger should be carried out.

The published reports of 88 cases mentioning Private Acts of Parliament (PAs), heard in the higher courts of England and Wales and Scotland were analysed to assess the courts’ current approach to PAs. Fifty-six English and eight Scottish cases were considered suitable for further assessment. Encyclopaedias and textbooks stress the application of contractual approaches, the contra proferentem rule and the judicial use of the preamble when the courts interpret PAs. These texts also suggest that the approach to cases promoted by public bodies differs to that where the promoter is a corporation and that there is a different approach to PAs involving London which are regarded as Public/General Acts of Parliament. The validity of these suggestions was assessed. English and Scottish judges approached the interpretation of PAs similarly. It was of interest that a number of cases dealt with Acts that were confirming provisional orders, a type of legislation still used in Scotland. Although the judges often considered contractual principles of interpretation or applying the contra proferentem rule, in practise they were not invariably applied and when used there was no apparent difference to those Acts promoted by public bodies or in the case of “London” PAs. The preamble was used to confirm the judges construction of the PA and to establish its purpose. The general principle however seemed to be that the courts adopted the method best suited to give the Act efficacy. The numbers of PAs enacted has declined over the period studied reflecting the passing of Public General Acts whose provisions rendered the further enactment of some types of PA unnecessary.

The International Court of Justice (ICJ) has the power to indicate provisional measures to preserve the rights of the States. States resorting to provisional measures as a first line of defence has recently increased exponentially. One of the requirements for rendering provisional measure is ‘plausibility’, which got its inception courtesy the separate opinion of Judge Abraham in the Pulp Mills case (2009). Lately, provisional measures orders have been invoked through human rights treaties. However, the surge in requests for provisional measures has also resulted in the ICJ setting out inconsistent plausibility standards. Additionally, the late Brazilian Judge Cancado Trindade endorsed ‘human vulnerability’ as the standard test in provisional measures orders over plausibility. In this article, the author comprehensively analyses the ‘plausibility test’ in human rights cases and argues that the ICJ has adopted an inconsistent approach to interpreting plausibility standards. The author also recommends balancing human vulnerability with plausibility in human rights cases to indicate provisional measures.