Pub Date : 2023-11-06DOI: 10.1017/s0008197323000442
Findlay Stark
Abstract The criminal law doctrine of “transferred malice” has been much discussed. What has gone comparatively unnoticed is the phenomenon of “recycled malice”. For example, those who endorse transferred malice would hold that, if D tries to shoot V, and the shot misses and hits T, D’s intention to hit V is “transferred” to T, and a completed offence against T is constructed. But many legal systems that endorse transferred malice also allow D to be convicted of an attempted offence against V. In other words, D’s intention to hit V can apparently be used multiple times. Once this phenomenon is noticed, a question arises over its justification and limits. This article argues that no convincing justification for recycling mens rea exists.
{"title":"RECYCLED MALICE","authors":"Findlay Stark","doi":"10.1017/s0008197323000442","DOIUrl":"https://doi.org/10.1017/s0008197323000442","url":null,"abstract":"Abstract The criminal law doctrine of “transferred malice” has been much discussed. What has gone comparatively unnoticed is the phenomenon of “recycled malice”. For example, those who endorse transferred malice would hold that, if D tries to shoot V, and the shot misses and hits T, D’s intention to hit V is “transferred” to T, and a completed offence against T is constructed. But many legal systems that endorse transferred malice also allow D to be convicted of an attempted offence against V. In other words, D’s intention to hit V can apparently be used multiple times. Once this phenomenon is noticed, a question arises over its justification and limits. This article argues that no convincing justification for recycling mens rea exists.","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-11-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135635373","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-11-03DOI: 10.1017/s0008197323000430
Ilias Ioannou
Abstract This paper argues that in platform-based digitalisation of international trade processes, the use of blockchain instead of a central database system does not by itself adequately address the platform provider’s potential to engage in opportunistic behaviour. Digital transformation of international trade is, thus, constrained by hold-up problems. This requires embedding governance mechanisms in platform rulebooks designed to establish trust and commonality of interests. The article proposes a governance mechanism to promote widespread digital adoption through contract design choices based on guiding principles that can establish legally enforceable behavioural standards which align with the relational characteristics of digital trade networks.
{"title":"RELATIONAL TRADE NETWORKS","authors":"Ilias Ioannou","doi":"10.1017/s0008197323000430","DOIUrl":"https://doi.org/10.1017/s0008197323000430","url":null,"abstract":"Abstract This paper argues that in platform-based digitalisation of international trade processes, the use of blockchain instead of a central database system does not by itself adequately address the platform provider’s potential to engage in opportunistic behaviour. Digital transformation of international trade is, thus, constrained by hold-up problems. This requires embedding governance mechanisms in platform rulebooks designed to establish trust and commonality of interests. The article proposes a governance mechanism to promote widespread digital adoption through contract design choices based on guiding principles that can establish legally enforceable behavioural standards which align with the relational characteristics of digital trade networks.","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-11-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135868936","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-10-16DOI: 10.1017/s0008197323000429
Paul S. Davies
Abstract The law concerning limitation periods has long been recognised to be unsatisfactory. One area which poses particular problems concerns whether a limitation period can apply to equitable claims “by analogy” under section 36 of the Limitation Act 1980. This article considers three relatively recent decisions of the Court of Appeal – P & O Nedlloyd BV v Arab Metals Co. (The UB Tiger) [2006] EWCA Civ 1717, [2007] 1 W.L.R. 2288, The Commissioners for Her Majesty’s Revenue and Customs v IGE USA Investments Ltd . [2021] EWCA Civ 534, [2021] Ch. 423 and The Claimants in the Royal Mail Group Litigation v Royal Mail Group Limited [2021] EWCA Civ 1173 – which illustrate that very different approaches have been taken. It is argued that The UB Tiger was wrongly decided, or at least should be limited to specific performance, and revives calls for legislative reform.
长期以来，有关诉讼时效的法律一直被认为是不令人满意的。造成特别问题的一个领域是，根据1980年《时效法》第36条，时效期是否可以“通过类比”适用于衡平法上的索赔。本文考虑了上诉法院最近的三个判决- P &O Nedlloyd BV诉阿拉伯金属有限公司(The UB Tiger) [2006] EWCA Civ 1717， [2007] 1 W.L.R. 2288，英国税务海关总署诉IGE USA Investments Ltd .。[2021] EWCA Civ 534， [2021] Ch. 423和The claims in The Royal Mail Group Litigation v Royal Mail Group Limited [2021] EWCA Civ 1173 -这说明采取了非常不同的方法。有人认为，UB老虎是错误的决定，或者至少应该限制在具体的表现，并重新呼吁立法改革。
{"title":"SECTION 36 OF THE LIMITATION ACT 1980","authors":"Paul S. Davies","doi":"10.1017/s0008197323000429","DOIUrl":"https://doi.org/10.1017/s0008197323000429","url":null,"abstract":"Abstract The law concerning limitation periods has long been recognised to be unsatisfactory. One area which poses particular problems concerns whether a limitation period can apply to equitable claims “by analogy” under section 36 of the Limitation Act 1980. This article considers three relatively recent decisions of the Court of Appeal – P & O Nedlloyd BV v Arab Metals Co. (The UB Tiger) [2006] EWCA Civ 1717, [2007] 1 W.L.R. 2288, The Commissioners for Her Majesty’s Revenue and Customs v IGE USA Investments Ltd . [2021] EWCA Civ 534, [2021] Ch. 423 and The Claimants in the Royal Mail Group Litigation v Royal Mail Group Limited [2021] EWCA Civ 1173 – which illustrate that very different approaches have been taken. It is argued that The UB Tiger was wrongly decided, or at least should be limited to specific performance, and revives calls for legislative reform.","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-10-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136114420","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-09-15DOI: 10.1017/s0008197323000417
Jan Zglinski
Abstract The new UK internal market, as embodied in the UK Internal Market Act 2020 and the common frameworks, is the latest example of market integration, but it is far from being the only one. A myriad of composite market structures exists across the world, including in Australia, Canada, Germany, Spain, Switzerland, the US and the EU. This article investigates how the UK internal market compares to other internal markets: to what extent does it follow pre-existing paths, to what extent does it depart from them? It is argued that the UK has diverged from international blueprints in several important aspects. Despite drawing on methods that are frequently employed for achieving economic integration, it reinterprets and combines these in a unique way. The result is an internal market which is defined by an unusual degree of centralisation, strong trade rights and a high potential for deregulation.
{"title":"THE UK INTERNAL MARKET: A GLOBAL OUTLIER?","authors":"Jan Zglinski","doi":"10.1017/s0008197323000417","DOIUrl":"https://doi.org/10.1017/s0008197323000417","url":null,"abstract":"Abstract The new UK internal market, as embodied in the UK Internal Market Act 2020 and the common frameworks, is the latest example of market integration, but it is far from being the only one. A myriad of composite market structures exists across the world, including in Australia, Canada, Germany, Spain, Switzerland, the US and the EU. This article investigates how the UK internal market compares to other internal markets: to what extent does it follow pre-existing paths, to what extent does it depart from them? It is argued that the UK has diverged from international blueprints in several important aspects. Despite drawing on methods that are frequently employed for achieving economic integration, it reinterprets and combines these in a unique way. The result is an internal market which is defined by an unusual degree of centralisation, strong trade rights and a high potential for deregulation.","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-09-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135436477","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-08-03DOI: 10.1017/s0008197323000223
Adam Perry
Abstract Administrative decisions are unlawful if they are unreasonable, in the sense that Associated Provincial Picture Houses Ltd. v Wednesbury Corporation made famous. What is Wednesbury unreasonableness, precisely? Courts have not clearly said, and existing academic answers are flawed. Here I propose a new answer. My claim, roughly, is that a Wednesbury unreasonable decision is one that a court is entitled, given the evidence before it, to conclude was wrong, given the evidence before the authority when it made the decision. In a slogan: Wednesbury unreasonableness is demonstrable wrongness.
{"title":"<i>WEDNESBURY</i> UNREASONABLENESS","authors":"Adam Perry","doi":"10.1017/s0008197323000223","DOIUrl":"https://doi.org/10.1017/s0008197323000223","url":null,"abstract":"Abstract Administrative decisions are unlawful if they are unreasonable, in the sense that Associated Provincial Picture Houses Ltd. v Wednesbury Corporation made famous. What is Wednesbury unreasonableness, precisely? Courts have not clearly said, and existing academic answers are flawed. Here I propose a new answer. My claim, roughly, is that a Wednesbury unreasonable decision is one that a court is entitled, given the evidence before it, to conclude was wrong, given the evidence before the authority when it made the decision. In a slogan: Wednesbury unreasonableness is demonstrable wrongness.","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-08-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136267217","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-07-01DOI: 10.1017/s0008197323000338
Christopher Hose
Contractual Relations: A Contribution to the Critique of the Classical Law of Contract. By David Campbell. [Oxford University Press, 2022. xxiv + 438 pp. Hardback £95.00. ISBN 978-0-19885-515-6.] - Volume 82 Issue 2
{"title":"Contractual Relations: A Contribution to the Critique of the Classical Law of Contract. By David Campbell. [Oxford University Press, 2022. xxiv + 438 pp. Hardback £95.00. ISBN 978-0-19885-515-6.]","authors":"Christopher Hose","doi":"10.1017/s0008197323000338","DOIUrl":"https://doi.org/10.1017/s0008197323000338","url":null,"abstract":"Contractual Relations: A Contribution to the Critique of the Classical Law of Contract. By David Campbell. [Oxford University Press, 2022. xxiv + 438 pp. Hardback £95.00. ISBN 978-0-19885-515-6.] - Volume 82 Issue 2","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135806405","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-07-01DOI: 10.1017/s0008197323000375
Patrick Elias
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{"title":"The Rule of Law Under Fire? By Raymond Wacks. [Oxford: Hart Publishing, 2021. viii + 167 pp. Hardback £85.00. ISBN 978-1-50995-058-4.]","authors":"Patrick Elias","doi":"10.1017/s0008197323000375","DOIUrl":"https://doi.org/10.1017/s0008197323000375","url":null,"abstract":"An abstract is not available for this content so a preview has been provided. Please use the Get access link above for information on how to access this content.","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135806402","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-07-01DOI: 10.1017/s0008197323000259
Stevie Martin
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{"title":"PROPORTIONALITY AND PROTEST-RELATED OFFENCES","authors":"Stevie Martin","doi":"10.1017/s0008197323000259","DOIUrl":"https://doi.org/10.1017/s0008197323000259","url":null,"abstract":"An abstract is not available for this content. As you have access to this content, full HTML content is provided on this page. A PDF of this content is also available in through the ‘Save PDF’ action button.","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135806538","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-07-01DOI: 10.1017/s0008197323000235
Andrew Sanger, Alison L. Young
FRIENDS of the Earth brought an action for judicial review against the decision of the Secretary of State for Trade and Industry to approve a $1.15 billion investment from UK Export Finance (UKEF) in a liquefied natural gas project in Mozambique (R. (Friends of the Earth Ltd.) v The Secretary of State for International Trade/UK Export Finance [2023] EWCA Civ 14, [2023] 1 W.L.R. 2293). The investment was conditional on the creation of 2,000 UK jobs related to the project. Friends of the Earth argued that the investment breached the Paris Agreement of 12 December 2015 and that the Secretary of State had failed to comply with the duty, established in Secretary of State for Education and Science v Metropolitan Borough of Tameside [1977] A.C. 1014 (Tameside), to carry out a sufficient inquiry before taking such a decision. The claim failed on both counts: the Government need only form a tenable view of what the Paris Agreement requires, and the Tameside duty was complied with. However, the conclusions of the court raise questions about the proper constitutional role of the courts, appearing to defer too greatly to the executive. Friends of the Earth argued that once a question concerning an unincorporated treaty is justiciable, then an English court must determine the correctness of a government claim that it is acting compatibly with that treaty; and there was no rational basis for concluding that the project aligned with the UK’s obligations under the unincorporated Paris Agreement as set out in UKEF’s final Climate Change Report. They drew on English precedent (R v. Secretary of State for the Home Department, ex p. Launder [1997] 1 W.L.R. 839, 866–68 and R v Director of Public Prosecutios, ex p. Kebilene [2000] 2 A.C. 326, 341–42, 367, 375–76), and what they considered to be a mandatory requirement in Article 31(1) of the Vienna Convention on the Law of
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{"title":"DEFERENCE AND DUALISM ARE NOT FRIENDS OF THE EARTH","authors":"Andrew Sanger, Alison L. Young","doi":"10.1017/s0008197323000235","DOIUrl":"https://doi.org/10.1017/s0008197323000235","url":null,"abstract":"FRIENDS of the Earth brought an action for judicial review against the decision of the Secretary of State for Trade and Industry to approve a $1.15 billion investment from UK Export Finance (UKEF) in a liquefied natural gas project in Mozambique (R. (Friends of the Earth Ltd.) v The Secretary of State for International Trade/UK Export Finance [2023] EWCA Civ 14, [2023] 1 W.L.R. 2293). The investment was conditional on the creation of 2,000 UK jobs related to the project. Friends of the Earth argued that the investment breached the Paris Agreement of 12 December 2015 and that the Secretary of State had failed to comply with the duty, established in Secretary of State for Education and Science v Metropolitan Borough of Tameside [1977] A.C. 1014 (Tameside), to carry out a sufficient inquiry before taking such a decision. The claim failed on both counts: the Government need only form a tenable view of what the Paris Agreement requires, and the Tameside duty was complied with. However, the conclusions of the court raise questions about the proper constitutional role of the courts, appearing to defer too greatly to the executive. Friends of the Earth argued that once a question concerning an unincorporated treaty is justiciable, then an English court must determine the correctness of a government claim that it is acting compatibly with that treaty; and there was no rational basis for concluding that the project aligned with the UK’s obligations under the unincorporated Paris Agreement as set out in UKEF’s final Climate Change Report. They drew on English precedent (R v. Secretary of State for the Home Department, ex p. Launder [1997] 1 W.L.R. 839, 866–68 and R v Director of Public Prosecutios, ex p. Kebilene [2000] 2 A.C. 326, 341–42, 367, 375–76), and what they considered to be a mandatory requirement in Article 31(1) of the Vienna Convention on the Law of","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135806404","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-07-01DOI: 10.1017/s0008197323000314
Aaron H.L. Wong
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{"title":"SPECULATIVE LEAP IN INFERRING CONDITIONAL INTENT","authors":"Aaron H.L. Wong","doi":"10.1017/s0008197323000314","DOIUrl":"https://doi.org/10.1017/s0008197323000314","url":null,"abstract":"An abstract is not available for this content. As you have access to this content, full HTML content is provided on this page. A PDF of this content is also available in through the ‘Save PDF’ action button.","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135806539","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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