Aruna Nair
- Published in print:
- 2018
- Published Online:
- April 2018
- ISBN:
- 9780198813408
- eISBN:
- 9780191851285
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198813408.001.0001
- Subject:
- Law, Trusts
This book explains the rational basis of the law of tracing, and why and when English law makes claims to traceable proceeds available. Tracing enables a claimant to make a proprietary claim to an ...
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This book explains the rational basis of the law of tracing, and why and when English law makes claims to traceable proceeds available. Tracing enables a claimant to make a proprietary claim to an asset acquired by a defendant from a third party, on the grounds that that asset represents the ‘traceable proceeds’ of another asset that belonged to the claimant. The book argues that the rules that allow this connection between assets to be established—the rules of tracing—aim to strike a balance between preserving the autonomy of defendants in making decisions to acquire or retain assets and preventing them from exploiting their power to deprive claimants of rights by such decisions. This account of tracing explains its historical development and its application in modern contexts. It also explains the availability of claims to traceable proceeds: an exploitation of power, of the kind that tracing is concerned with, can take place only in the context of a prior relationship of ‘control of assets’, whereby one person has a legal power to vary the legal rights of another with respect to some assignable right, owes that other a duty in respect of the exercise of that power, and is able to validly exercise the legal power in breach of that duty. These relationships, which exist both at law and equity, overlap with the categories of ‘fiduciary duties’ or ‘property rights’, but share additional and distinctive characteristics that justify the availability of tracing.Less
This book explains the rational basis of the law of tracing, and why and when English law makes claims to traceable proceeds available. Tracing enables a claimant to make a proprietary claim to an asset acquired by a defendant from a third party, on the grounds that that asset represents the ‘traceable proceeds’ of another asset that belonged to the claimant. The book argues that the rules that allow this connection between assets to be established—the rules of tracing—aim to strike a balance between preserving the autonomy of defendants in making decisions to acquire or retain assets and preventing them from exploiting their power to deprive claimants of rights by such decisions. This account of tracing explains its historical development and its application in modern contexts. It also explains the availability of claims to traceable proceeds: an exploitation of power, of the kind that tracing is concerned with, can take place only in the context of a prior relationship of ‘control of assets’, whereby one person has a legal power to vary the legal rights of another with respect to some assignable right, owes that other a duty in respect of the exercise of that power, and is able to validly exercise the legal power in breach of that duty. These relationships, which exist both at law and equity, overlap with the categories of ‘fiduciary duties’ or ‘property rights’, but share additional and distinctive characteristics that justify the availability of tracing.
Jeremy Horder
- Published in print:
- 2018
- Published Online:
- April 2018
- ISBN:
- 9780198823704
- eISBN:
- 9780191862304
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198823704.001.0001
- Subject:
- Law, Criminal Law and Criminology, Constitutional and Administrative Law
The book is principally concerned with the use of the criminal law to deter and punish corruption in politics: from employing family members at public expense to improper spending on elections. Its ...
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The book is principally concerned with the use of the criminal law to deter and punish corruption in politics: from employing family members at public expense to improper spending on elections. Its main focus is the application of the offence of misconduct in public office to Members of Parliament. The criminal law should not be the sole or even the main way to tackle all corruption in politics. However, the offence of misconduct in a public office should nonetheless be seen as a constitutional fundamental. It provides a way in which corrupt conduct on the part of legislators (and other officials) can be deterred and punished with an appropriate label, thereby making them account for the misuse of power by reference to the standards of ordinary people. When other—civil law or regulatory—means prove insufficient, it should be possible for ordinary members of a jury, and not, or not just, for parliamentarians or other officials, to decide whether—for example—the expenditure of public money on legislators’ private income and benefits amounts to a criminal abuse of the public’s trust. This is what I call the ‘bottom-up’ (jury standards-led) as opposed to the ‘top-down’ (officials applying their own standards) view of the role of the criminal law in constitutional contexts. In developing this theme, an important intellectual challenge is also taken up: the provision of a history, philosophy, and politics of the offence of misconduct in office, an offence hitherto little considered by mainstream criminal law theorists in the UK.Less
The book is principally concerned with the use of the criminal law to deter and punish corruption in politics: from employing family members at public expense to improper spending on elections. Its main focus is the application of the offence of misconduct in public office to Members of Parliament. The criminal law should not be the sole or even the main way to tackle all corruption in politics. However, the offence of misconduct in a public office should nonetheless be seen as a constitutional fundamental. It provides a way in which corrupt conduct on the part of legislators (and other officials) can be deterred and punished with an appropriate label, thereby making them account for the misuse of power by reference to the standards of ordinary people. When other—civil law or regulatory—means prove insufficient, it should be possible for ordinary members of a jury, and not, or not just, for parliamentarians or other officials, to decide whether—for example—the expenditure of public money on legislators’ private income and benefits amounts to a criminal abuse of the public’s trust. This is what I call the ‘bottom-up’ (jury standards-led) as opposed to the ‘top-down’ (officials applying their own standards) view of the role of the criminal law in constitutional contexts. In developing this theme, an important intellectual challenge is also taken up: the provision of a history, philosophy, and politics of the offence of misconduct in office, an offence hitherto little considered by mainstream criminal law theorists in the UK.
Mark Hill QC
- Published in print:
- 2018
- Published Online:
- April 2018
- ISBN:
- 9780198807568
- eISBN:
- 9780191845475
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198807568.001.0001
- Subject:
- Law, Legal Profession and Ethics
This fourth edition has been revised and updated to take account of significant changes in the substantive law, specifically: the effects of the Ecclesiastical Jurisdiction and Care of Churches ...
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This fourth edition has been revised and updated to take account of significant changes in the substantive law, specifically: the effects of the Ecclesiastical Jurisdiction and Care of Churches Measure 2017; the overhaul of the procedure in the Consistory Court in consequence of the Faculty Jurisdiction Rules 2015; substantial repeals in the Statute Law (Repeals) Measure 2017 and the new procedure under the Legislative Reform Measure 2017; the effect of the House of Bishops' Declaration on the Ministry of Bishops and Priests concerning provision for traditionalists; and the role of the Independent Reviewer under the Priests (Resolution of Disputes Procedure) Regulations 2014. The book offers commentary, analysis, and various materials. Materials include: the Canons of the Church of England, together with the Measures and Rules (updated to 2018) regulating the faculty jurisdiction and clergy discipline.Less
This fourth edition has been revised and updated to take account of significant changes in the substantive law, specifically: the effects of the Ecclesiastical Jurisdiction and Care of Churches Measure 2017; the overhaul of the procedure in the Consistory Court in consequence of the Faculty Jurisdiction Rules 2015; substantial repeals in the Statute Law (Repeals) Measure 2017 and the new procedure under the Legislative Reform Measure 2017; the effect of the House of Bishops' Declaration on the Ministry of Bishops and Priests concerning provision for traditionalists; and the role of the Independent Reviewer under the Priests (Resolution of Disputes Procedure) Regulations 2014. The book offers commentary, analysis, and various materials. Materials include: the Canons of the Church of England, together with the Measures and Rules (updated to 2018) regulating the faculty jurisdiction and clergy discipline.
Yinka Omorogbe and Ada Ordor (eds)
- Published in print:
- 2018
- Published Online:
- April 2018
- ISBN:
- 9780198819837
- eISBN:
- 9780191860096
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198819837.001.0001
- Subject:
- Law, Environmental and Energy Law
The book Achieving Sustainable Energy for All in Africa addresses the role of law in securing energy access for huge numbers of people in Africa who live without the benefit of modern energy ...
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The book Achieving Sustainable Energy for All in Africa addresses the role of law in securing energy access for huge numbers of people in Africa who live without the benefit of modern energy services. Contributions to the book offer a variety of legal and socio-legal perspectives on the subject of energy access, describing the dire situation of energy poverty on the African continent and emphasizing its implications for overall development. Specific themes addressed include the concept of energy justice, the international human rights framework for advancing the notion of a right to energy, and the role of regulation and legal reform in achieving the desired levels of energy access. In particular, attention is focused on the use of law and policy to create an enabling environment, including appropriate dispute resolution mechanisms, for the financing of energy infrastructure and the development of new forms of energy. In relation to the latter, key considerations for constituting intellectual property governance regimes that promote access to relevant technology are canvassed. Furthermore, the disproportionate impact of energy poverty on women, children, and disabled persons is highlighted in the context of the limitations of existing law and the growing recognition of this reality in emerging legal interventions. The environmental dimension, which similarly affects these vulnerable population groups, is directed at the water-energy nexus, critical to the provision of clean water and clean energy. The focus on Nigeria and South Africa in some chapters reflects the institutional collaboration from which this volume has emerged.Less
The book Achieving Sustainable Energy for All in Africa addresses the role of law in securing energy access for huge numbers of people in Africa who live without the benefit of modern energy services. Contributions to the book offer a variety of legal and socio-legal perspectives on the subject of energy access, describing the dire situation of energy poverty on the African continent and emphasizing its implications for overall development. Specific themes addressed include the concept of energy justice, the international human rights framework for advancing the notion of a right to energy, and the role of regulation and legal reform in achieving the desired levels of energy access. In particular, attention is focused on the use of law and policy to create an enabling environment, including appropriate dispute resolution mechanisms, for the financing of energy infrastructure and the development of new forms of energy. In relation to the latter, key considerations for constituting intellectual property governance regimes that promote access to relevant technology are canvassed. Furthermore, the disproportionate impact of energy poverty on women, children, and disabled persons is highlighted in the context of the limitations of existing law and the growing recognition of this reality in emerging legal interventions. The environmental dimension, which similarly affects these vulnerable population groups, is directed at the water-energy nexus, critical to the provision of clean water and clean energy. The focus on Nigeria and South Africa in some chapters reflects the institutional collaboration from which this volume has emerged.
Jud Mathews
- Published in print:
- 2018
- Published Online:
- April 2018
- ISBN:
- 9780190682910
- eISBN:
- 9780190682941
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190682910.001.0001
- Subject:
- Law, Constitutional and Administrative Law
Constitutional rights protect individuals against government overreaching, but that is not all they do. In different ways and to different degrees, constitutional rights also regulate legal relations ...
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Constitutional rights protect individuals against government overreaching, but that is not all they do. In different ways and to different degrees, constitutional rights also regulate legal relations among private parties in most legal systems. In other words, rights can have not only a vertical effect, within the hierarchical relationship between citizen and state, but also a horizontal one, on the citizen-to-citizen relationships otherwise governed by private law. In every constitutional system with judicially enforceable constitutional rights, courts must make choices about whether, when, and how to give those rights horizontal effect. This book is about how different courts make those choices, and about the consequences that they have. The doctrines that courts build to manage the horizontal effect of rights speak to the most fundamental issues that constitutional systems address, about the nature of rights and of constitutionalism itself. These doctrines can also entrench or enhance judicial power, but in very different ways depending on the legal system. This book offers three case studies, of Germany, the United States, and Canada. For each, it offers a detailed account of the horizontal effect jurisprudence of its apex court—not in isolation, but as a central feature of a broader account of that country’s constitutional development. The case studies show how the choices courts make about horizontal rights reflect existing normative and political realities and, over time, help to shape new ones.Less
Constitutional rights protect individuals against government overreaching, but that is not all they do. In different ways and to different degrees, constitutional rights also regulate legal relations among private parties in most legal systems. In other words, rights can have not only a vertical effect, within the hierarchical relationship between citizen and state, but also a horizontal one, on the citizen-to-citizen relationships otherwise governed by private law. In every constitutional system with judicially enforceable constitutional rights, courts must make choices about whether, when, and how to give those rights horizontal effect. This book is about how different courts make those choices, and about the consequences that they have. The doctrines that courts build to manage the horizontal effect of rights speak to the most fundamental issues that constitutional systems address, about the nature of rights and of constitutionalism itself. These doctrines can also entrench or enhance judicial power, but in very different ways depending on the legal system. This book offers three case studies, of Germany, the United States, and Canada. For each, it offers a detailed account of the horizontal effect jurisprudence of its apex court—not in isolation, but as a central feature of a broader account of that country’s constitutional development. The case studies show how the choices courts make about horizontal rights reflect existing normative and political realities and, over time, help to shape new ones.
Sagi Peari
- Published in print:
- 2018
- Published Online:
- April 2018
- ISBN:
- 9780190622305
- eISBN:
- 9780190622336
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190622305.001.0001
- Subject:
- Law, Private International Law, Philosophy of Law
This book focuses on the subject of choice of law as a whole and provides an analysis of its various rules, principles, doctrines, and concepts. It offers a conceptual account of choice of law, ...
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This book focuses on the subject of choice of law as a whole and provides an analysis of its various rules, principles, doctrines, and concepts. It offers a conceptual account of choice of law, called “choice equality foundation” (CEF), which aims to flesh out the normative basis of the subject. This book reveals that, despite the multiplicity of titles and labels within the myriad choice-of-law rules and practices of the US, Canadian, European, and other systems, many of them effectively confirm and crystallize CEF’s vision of the subject. This alignment signifies the necessarily intimate relationship between theory and practice, whereby the normative underpinnings of CEF are deeply embedded and reflected in actual practical reality. Among other things, this book provides a justification for the nature (and limits) of such popular principles as “party autonomy,” “most significant relationship,” and “closest connection” (Chapters 2 and 3), discusses such topics as the actual operation of “public policy” doctrine in domestic courts (Chapter 4) and the relation between the notion of international human rights and international commercial dealings (Chapter 5), and makes some suggestions about the ability of traditional rules to cope with the advancing challenges of the digital age (Chapter 6).Less
This book focuses on the subject of choice of law as a whole and provides an analysis of its various rules, principles, doctrines, and concepts. It offers a conceptual account of choice of law, called “choice equality foundation” (CEF), which aims to flesh out the normative basis of the subject. This book reveals that, despite the multiplicity of titles and labels within the myriad choice-of-law rules and practices of the US, Canadian, European, and other systems, many of them effectively confirm and crystallize CEF’s vision of the subject. This alignment signifies the necessarily intimate relationship between theory and practice, whereby the normative underpinnings of CEF are deeply embedded and reflected in actual practical reality. Among other things, this book provides a justification for the nature (and limits) of such popular principles as “party autonomy,” “most significant relationship,” and “closest connection” (Chapters 2 and 3), discusses such topics as the actual operation of “public policy” doctrine in domestic courts (Chapter 4) and the relation between the notion of international human rights and international commercial dealings (Chapter 5), and makes some suggestions about the ability of traditional rules to cope with the advancing challenges of the digital age (Chapter 6).
Eva Steiner
- Published in print:
- 2018
- Published Online:
- April 2018
- ISBN:
- 9780198790884
- eISBN:
- 9780191833342
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198790884.001.0001
- Subject:
- Law, Comparative Law
This second edition provides an authoritative, thorough, and updated account of the French Legal System and its internal workings. It explains both the institutions and substantive law along with the ...
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This second edition provides an authoritative, thorough, and updated account of the French Legal System and its internal workings. It explains both the institutions and substantive law along with the methodology that underpins the system. As well as being a key to understanding the civil law way of thinking, the book focuses on the various processes that go into making and enforcing law in France. Landmark legal cases that have shaped modern French law are discussed within the particular area of law under scrutiny. Illuminating and insightful comparisons to other legal jurisdictions, especially England, are made throughout, helping readers to appreciate the distinctions and specific nature of French law.Less
This second edition provides an authoritative, thorough, and updated account of the French Legal System and its internal workings. It explains both the institutions and substantive law along with the methodology that underpins the system. As well as being a key to understanding the civil law way of thinking, the book focuses on the various processes that go into making and enforcing law in France. Landmark legal cases that have shaped modern French law are discussed within the particular area of law under scrutiny. Illuminating and insightful comparisons to other legal jurisdictions, especially England, are made throughout, helping readers to appreciate the distinctions and specific nature of French law.
Irit Mevorach
- Published in print:
- 2018
- Published Online:
- April 2018
- ISBN:
- 9780198782896
- eISBN:
- 9780191826115
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198782896.001.0001
- Subject:
- Law, Company and Commercial Law, Private International Law
This book interrogates the current cross-border insolvency regime and sets out a pattern to improve its future. In recent decades, and especially since the global financial crisis, a number of ...
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This book interrogates the current cross-border insolvency regime and sets out a pattern to improve its future. In recent decades, and especially since the global financial crisis, a number of important initiatives have focused on developing effective solutions for managing the insolvency of multinational enterprises and financial institutions. This book takes stock of the varying success of previous policy, and identifies the gaps and biases that could be bridged by employing a range of strategies. The book first sets out the theoretical debates regarding cross-border insolvency and surveys the strengths and weaknesses of the prevailing method, ‘modified universalism’, synthesizing divergences into a rubric for both commercial entities and financial institutions. Adhering to these norms more robustly, the book argues, would enhance global welfare and produce the best outcomes for businesses and institutions. Drawing upon sources from international law as well as behavioural and economic theory, the book considers how to translate modified universalism into binding international law, how to choose the right instrument for cross-border insolvency, the impact instrument design has on decisions and choices, and the means to encourage compliance. In particular, the book proposes measures that could potentially overcome, or at least take into account, behavioural biases in decision-making in order to create a system that works for businesses, and offers a blueprint for the future of cross-border insolvency.Less
This book interrogates the current cross-border insolvency regime and sets out a pattern to improve its future. In recent decades, and especially since the global financial crisis, a number of important initiatives have focused on developing effective solutions for managing the insolvency of multinational enterprises and financial institutions. This book takes stock of the varying success of previous policy, and identifies the gaps and biases that could be bridged by employing a range of strategies. The book first sets out the theoretical debates regarding cross-border insolvency and surveys the strengths and weaknesses of the prevailing method, ‘modified universalism’, synthesizing divergences into a rubric for both commercial entities and financial institutions. Adhering to these norms more robustly, the book argues, would enhance global welfare and produce the best outcomes for businesses and institutions. Drawing upon sources from international law as well as behavioural and economic theory, the book considers how to translate modified universalism into binding international law, how to choose the right instrument for cross-border insolvency, the impact instrument design has on decisions and choices, and the means to encourage compliance. In particular, the book proposes measures that could potentially overcome, or at least take into account, behavioural biases in decision-making in order to create a system that works for businesses, and offers a blueprint for the future of cross-border insolvency.
Benjamin Mason Meier and Lawrence O. Gostin (eds)
- Published in print:
- 2018
- Published Online:
- April 2018
- ISBN:
- 9780190672676
- eISBN:
- 9780190672713
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190672676.001.0001
- Subject:
- Law, Human Rights and Immigration, Public International Law
Institutions matter for the advancement of human rights in global health. Given the dramatic development of human rights under international law and the parallel proliferation of global institutions ...
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Institutions matter for the advancement of human rights in global health. Given the dramatic development of human rights under international law and the parallel proliferation of global institutions for public health, there arises an imperative to understand the implementation of human rights through global health governance. This volume examines the evolving relationship between human rights, global governance, and public health, studying an expansive set of health challenges through a multi-sectoral array of global organizations. To analyze the structural determinants of rights-based governance, the organizations in this volume include those international bureaucracies that implement human rights in ways that influence public health in a globalizing world. Bringing together leading health and human rights scholars and practitioners from academia, non-governmental organizations, and the United Nations system, this volume explores: (1) the foundations of human rights as a normative framework for global health governance, (2) the mandate of the World Health Organization to pursue a human rights-based approach to health, (3) the role of inter-governmental organizations across a range of health-related human rights, (4) the influence of rights-based economic governance on public health, and (5) the focus on global health among institutions of human rights governance. Contributing chapters map the distinct human rights activities within a specific institution of global governance for health. Through the comparative institutional analysis in this volume, the contributing authors examine institutional efforts to operationalize human rights in organizational policies, programs, and practices and assess institutional factors that facilitate or inhibit human rights mainstreaming for global health advancement.Less
Institutions matter for the advancement of human rights in global health. Given the dramatic development of human rights under international law and the parallel proliferation of global institutions for public health, there arises an imperative to understand the implementation of human rights through global health governance. This volume examines the evolving relationship between human rights, global governance, and public health, studying an expansive set of health challenges through a multi-sectoral array of global organizations. To analyze the structural determinants of rights-based governance, the organizations in this volume include those international bureaucracies that implement human rights in ways that influence public health in a globalizing world. Bringing together leading health and human rights scholars and practitioners from academia, non-governmental organizations, and the United Nations system, this volume explores: (1) the foundations of human rights as a normative framework for global health governance, (2) the mandate of the World Health Organization to pursue a human rights-based approach to health, (3) the role of inter-governmental organizations across a range of health-related human rights, (4) the influence of rights-based economic governance on public health, and (5) the focus on global health among institutions of human rights governance. Contributing chapters map the distinct human rights activities within a specific institution of global governance for health. Through the comparative institutional analysis in this volume, the contributing authors examine institutional efforts to operationalize human rights in organizational policies, programs, and practices and assess institutional factors that facilitate or inhibit human rights mainstreaming for global health advancement.
Jane Kotzmann
- Published in print:
- 2018
- Published Online:
- April 2018
- ISBN:
- 9780190863494
- eISBN:
- 9780190863524
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190863494.001.0001
- Subject:
- Law, Human Rights and Immigration
A human right to higher education was included in the International Covenant on Economic, Social and Cultural Rights (ICESCR), which came into force in 1976. Yet the world has changed significantly ...
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A human right to higher education was included in the International Covenant on Economic, Social and Cultural Rights (ICESCR), which came into force in 1976. Yet the world has changed significantly since it was drafted. State legislation and policies have generally followed a neo-liberal trajectory, shifting the perception of higher education from being a public good to being a commodity. This model has been criticised, particularly because it generally reinforces social inequality. At the same time, attaining higher education has become more important than ever. Higher education is a prerequisite for many jobs, and those who have attained higher education enjoy improved life circumstances. This book seeks to determine whether there is still a place for the human right to higher education in the current international context. In seeking to answer this question, this book compares and contrasts two general theoretical models that are used to frame higher education policy: the market-based approach and the human rights-based approach. In doing so, it seeks to contribute to an understanding of the likely effectiveness of market-based versus human rights-based approaches to higher education provision in terms of teaching and learning. This understanding should enable the development of more considered, sophisticated and ultimately successful higher education policies. This book contends that a human rights-based approach to higher education policy is more likely to enable the achievement of higher education purposes than a market-based approach. In reaching this conclusion, the book identifies some strategic considerations of relevance for advocates of a human rights-based approach in this context.Less
A human right to higher education was included in the International Covenant on Economic, Social and Cultural Rights (ICESCR), which came into force in 1976. Yet the world has changed significantly since it was drafted. State legislation and policies have generally followed a neo-liberal trajectory, shifting the perception of higher education from being a public good to being a commodity. This model has been criticised, particularly because it generally reinforces social inequality. At the same time, attaining higher education has become more important than ever. Higher education is a prerequisite for many jobs, and those who have attained higher education enjoy improved life circumstances. This book seeks to determine whether there is still a place for the human right to higher education in the current international context. In seeking to answer this question, this book compares and contrasts two general theoretical models that are used to frame higher education policy: the market-based approach and the human rights-based approach. In doing so, it seeks to contribute to an understanding of the likely effectiveness of market-based versus human rights-based approaches to higher education provision in terms of teaching and learning. This understanding should enable the development of more considered, sophisticated and ultimately successful higher education policies. This book contends that a human rights-based approach to higher education policy is more likely to enable the achievement of higher education purposes than a market-based approach. In reaching this conclusion, the book identifies some strategic considerations of relevance for advocates of a human rights-based approach in this context.
Aboriginal Societies and the Common Law
Aboriginal Title
Abuse of Process and Judicial Stays of Criminal Proceedings
The Access of Individuals to International Justice
The Access Regime
Access to Justice as a Human Right
Access to Medicine in the Global Economy
Access-Right
Accessing Asylum in Europe
