Volume 4, Issue 2

July 2016


The Dilemma of Indirect Expropriation of Host States and the Right to Regulate in the International Investment Sphere
Bashayer Al-Mukhaizeem

This article examines the situation where a State embraces an investment belonging to a foreigner. How a State can regulate its affairs without harming foreign investors and without being accused of implied expropriation of such investment? Some municipal laws restrict the government’s power to expropriate investments indirectly, such as Cambodia’s Investment Act 1994. Other domestic laws do not constrain the government from doing so. This article examines specific measures in order to determine whether a State creates new legislation to disengage itself from its obligations towards foreign investment, or whether such a rule is promulgated merely to govern internal matters.

Should Women Be Paid to Provide Eggs for Research or Reproduction?
Mathilde Formet

The issue of whether women should be paid to provide eggs for research or reproduction is complex. An overview of the legal framework of the UK, the US, and some European States reflects this complexity and lack of consensus. Ethical concerns are often raised, but even if money is a driving force, it does not deprive women to freely consent nor does it constitute coercion, exploitation, or commodification. Paying for the services, not for the eggs as goods, justifies the monetary reward (no matter the provider and eggs’ characteristics). Accepting this payment would only enhance women’s autonomy, who are able to decide regarding their own bodies. Moreover, payment for sperm provision is allowed, and so payment for egg provision would establish equality between genders. Furthermore, altruism, an important principle of egg provision, would not necessarily suffer from payment. Currently, there are no strong safeguards, including price and informed consent. Implementation of strong safeguards is essential, and would allow for sufficient supply as well as for more women to experience childbirth and to develop research.

Trans Gender Justice: Critical Reflections on the Conceptual Limitations of English Law, Implementation of the Law, and the Relationship with Social Progress
Divya Jalan

Whilst trans issues have been explored in political, medical, queer theory and US legal literature, the UK’s legal literature remains more limited. The Gender Recognition Act 2004 (GRA) marked a shift in the debate on trans issues from academia to implementation. This article attempts to go some way in filling the legal lacuna by engaging in a socio-legal analysis of English law’s ability to provide gender justice by giving full legal recognition to all trans and non-discriminatory access to rights based on this. First, drawing upon the foundations provided by feminist discourse on what constitutes ‘sex’, ‘gender’, ‘male’ and ‘female’, we can analyse the historical development of English law. Secondly, the law is historically conceptually limited by its privileging of sex over gender and its affirmation of the male/female binary as epitomised in Corbett v Corbett. Thirdly, an analysis of the GRA and its relationship with key civil law legislations demonstrates that English law remains conceptually limited because of an incomplete shift from sex to gender and reaffirmation of the binary. Finally, a reflection upon the relationship between social progress, the law’s theoretical limitations and implementation leads to the conclusion that, although the law contributes to trans gender justice, social change is fundamental to shaping more conceptually progressive legislation that can itself have a transformative role on society and the law’s effective implementation through social compliance. Neither the law nor public policy and politics may be neglected when contemplating greater gender justice for trans individuals.

Post-Prest Corporate Group Veil Piercing: Alternative Avenues to Justice
Charlotte Kouo

Following the landmark decision of Prest v Petrodel Resources in 2013, it has been emphasized that it is indeed important to limit corporate veil piercing powers to very carefully defined circumstances. However, because the common law fails to clearly distinguish the circumstances under which corporate veil piercing may occur, there remains a lack of predictability in this area for those seeking justice. Furthermore, there are increased difficulties faced by victims of fraud committed by corporate groups when seeking redress, as frequently judges’ hands are tied by the need to respect the doctrines of separate legal personality and privity. It has been a much-debated topic as to whether this lack of responsibility and injustice in the law calls for development of new legal constructions to help victims achieve more practical and fairer outcomes. This paper evaluates and rejects the urgency call for development of new legal constructions and examines alternative avenues of the law that may achieve similar outcomes without requiring the corporate veil to be pierced.

Retention of Title Clauses: A Key to the Romalpa Maze
James Mitchell

This is a review of the current and on-going controversial scope of retention of title clauses, drawn from a detailed analysis of case law and academic commentary. Provided is a clear summary of the various types of retention of title clauses, the origins of those clauses, and the academic debate that has surrounded each of the clauses. Further, it details the current position of each type of clause, drawing on links between traditional Commercial Law and cases in the Law of Restitution; to draw a conclusion that the retention of title clause is theoretically now certain.

Why Blurring is a Conceptually Difficult Area of Trademark Law
Saquib Rahman

US Courts have either preferred to address dilution-by-blurring as trademark infringement, or have involuntarily misunderstood the concept as infringement in the past. Even upon recognition of ‘blurring’ as a separate claim, decisions of the courts with regards to the determination of dilution-by-blurring have differed from one another. Alongside the definition of blurring, this paper critically evaluates how blurring has become a conceptually difficult area of trademark law. Although the latest revision law in the US is believed to have immensely contributed to the better understanding of blurring, this paper identifies certain areas, addressing which would better conceptualize dilution-by-blurring.

Case Notes

Haile v London Borough of Waltham Forest [2015]
Christopher Busst

A homeless person may be owed a duty to be re-housed by a local housing authority if they can meet the requirements set out in the Housing Act 1996. The authority does not owe the full duty, however, in circumstances where the homeless person has made themselves ‘intentionally homeless’ – where they have carried out a deliberate act or omission which has led to their loss of accommodation. The House of Lords ruling in Din v Wandsworth London Borough Council [1983] had created a consistent and certain approach to findings of intentionality. The Supreme Court in Haile claims not to have departed from the reasoning in Din. Still, it will be shown that the express findings in Haile have completely changed the approach to intentionality. Despite the Supreme Court’s protestations to the contrary, a certain deliberate act by a homeless person can now be ignored if, hypothetically, the homeless person would have become homeless anyway—creating a causational nightmare for authority decision makers.

Recent Developments in the Extraterritorial Scope of Application of the ECHR in the Aftermath of Jaloud v The Netherlands [2014]
Stefanos Xenofontos

In an age of globalization, as a result of the ongoing global ‘war on terror,’ and the rise in foreign military interventions, states’ military conduct is increasingly expanding outside their territorial boundaries. This phenomenon has caused an additional vulnerability for individuals, increasingly posing a threat to their human rights, and the right to life in particular, even across borders. This case comment examines the recent developments in the extraterritorial scope of application of the European Convention on Human Rights (ECHR) as they arise from the recent judgment in Jaloud v The Netherlands (2014). Particular emphasis will be given to the legal difficulties in protecting the human right to life, in the context of multinational military operations overseas; as well as the developing trend towards further extending a state’s scope of jurisdiction in foreign battlefields. As the jurisprudence of the UK national courts indicates, Jaloud’s new ‘checkpoint’ test for jurisdiction, leaves the door wide-open for establishing the ECHR States’ jurisdiction in aerial bombardments (previously rejected in Bankovic), or targeted killings by drones in the context of future operations. Certainly, such a finding would open the way for the courts to challenge governmental decisions on major policy choices in foreign affairs and further judicialise armed forces’ conduct.