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  • A Briggs, 'Private International Law and the Privy Council' in Charles Mitchell and Stephen Watterson (eds), The World of Maritime and Commercial Law: Essays in Honour of Francis Rose (Hart 2020)
    Analysis of the contribution (positive and negative) to the private international law of those jurisdictions whose local decisions are liable to be appealed to the Privy Council, and the drawing of conclusions which appear to follow from the evidence.
    ISBN: 978-1-5099-3242-9
  • P P Craig, 'Proportionality and Constitutional Review' (2020) 3 University of Oxford Human Rights Hub Journal 87
  • P P Craig, 'Response to Loughlin’s Note on Miller/Cherry ' (2020) Public Law 282
  • JA Armour and H Eidenmueller, 'Self-Driving Corporations?' (2020) 10 Harvard Business Law Review 201
    What are the implications of artificial intelligence (AI) for corporate law? In this essay, we consider the trajectory of AI’s evolution, analyze the effects of its application on business practice, and investigate the impact of these developments for corporate law. Overall, we claim that the increasing use of AI in corporations implies a shift from viewing the enterprise as primarily private and facilitative, towards a more public, and regulatory, conception of the law governing corporate activity. Today’s AI is dominated by machine learning applications which assist and augment human decision-making. These raise multiple challenges for business organization, the management of which we collectively term “data governance.” The impact of today’s AI on corporate law is coming to be felt along two margins. First, we expect a reduction across many standard dimensions of internal agency and coordination costs. Second, the oversight challenges—and liability risks—at the top of the firm will rise significantly. Tomorrow’s AI may permit humans to be replaced even at the apex of corporate decision-making. This is likely to happen first in what we call “self-driving subsidiaries” performing very limited corporate functions. Replacing humans on corporate boards with machines implies a fundamental shift in focus: from controlling internal costs to the design of appropriate strategies for controlling “algorithmic failure,” that is, unlawful acts by an algorithm with potentially severe negative effects (physical or financial harm) on external third parties. We discuss corporate goal-setting, which in the medium term is likely to become the center of gravity for debate on AI and corporate law. This will only intensify as technical progress moves toward the possibility of fully self-driving corporations. We outline potential regulatory strategies for their control. The potential for regulatory competition weakens lawmakers’ ability to respond, and so even though the self-driving corporation is not yet a reality, we believe the regulatory issues deserve attention well before tomorrow’s AI becomes today’s.
  • JA Armour, 'Shareholder Rights' (2020) 36 Oxford Review of Economic Policy 314
    ‘Shareholder rights’ are the legal entitlements of shareholders vis-à-vis companies in which they invest. A large body of research has sought to investigate how shareholder rights foster accountability of controllers. The concern has been that without accountability, managers and dominant shareholders will use their power to further their own interests at the expense of outside investors. A contrasting concern is that strengthening shareholder rights may come at the expense of other parties, which may also lead to misallocation of corporate resources. A recently-emerging body of research suggests that the relationship between shareholder rights and social welfare is not monotonic, but rather inverse-U-shaped. We argue that the calibration and impact of shareholder rights depends crucially on the institutional channel(s) through which they are implemented—voting, litigation, and/or market pricing. In particular, the market pricing channel intensifies the effects of shareholder rights in ways that can be excessive. This can harm not only other constituencies but also shareholders, as it can promote short-termism and systemic externalities. These problems are less pronounced for shareholder rights implemented through the voting channel.
    ISBN: 0266-903X
  • P P Craig, 'Six Dimensions of Public Law: Pressure-Testing the UK and EU Systems' in E Fisher, J King and A Young (eds), The Foundations and Future of Public Law (Oxford University Press 2020)
  • P Eleftheriadis, 'The German Constitutional Court’s Weiss judgment is a Failure of German Constitutionalism' (2020) 116 ELIAMEP Policy Brief
    In this paper Prof. Pavlos Eleftheriadis offers a first reaction to the judgment of the German Federal Constitutional Court in Weiss regarding the ECB’s bond buying programme. He argues that the judgment is an unprecedented revolt against the law of the European Union. • The judgment of the German Federal Constitutional Court in Weiss is an unprecedented revolt against the shared law of the European Monetary Union • The Court has departed from its prior case law and especially the well-established precedents in Lisbon (2009) and Honeywell (2010) which explained how a democratic constitution is open to European integration • The Court’s arguments seem to ignore the clear constitutional obligation created by Article 23 of the German Basic Law to comply with EU law in all cases, except when there are very serious constitutional reasons not to do so. • The Court promotes an unusual theory of the ‘constitutional identity’ of Germany as a matter of the continuing ‘popular sovereignty’ of the German people, which according to the Court can only be expressed through the present Bundestag and – it appears – cannot be delegated, shared or exercised in common with other nations. • The Court’s statist theories, which have no imitators in other European courts, place it now well outside the European mainstream. • The Court’s doctrines create a potential constitutional crisis in Germany, since they antagonise the clear democratic choice of the German people to remain a member of the Eurozone, on the basis of novel doctrines about identity, democracy and popular sovereignty
  • E Fisher, 'The Open Road?: Navigating Public Administration and the Failed Promise of Administrative Law' in Elizabeth Fisher, Jeff King, and Alison Young (eds), The Foundations and Future of Public Law: Essays in Honour of Paul Craig (OUP 2020)
  • P P Craig, 'The Ratifications' in F Fabbrini (ed), The Withdrawal Agreement, The Law and Politics of Brexit Volume II (Oxford University Press 2020)
  • P P Craig, 'The Supreme Court, Prorogation and Constitutional Principle' (2020) Public Law 248
  • P Davies, 'THE UK STEWARDSHIP CODE 2010-2020 From Saving the Company to Saving the Planet?' (2020) European Corporate Governance Institute
    The United Kingdom introduced a Stewardship Code in 2010, followed by a slightly revised iteration in 2012 (the “first version” of the SC). It was premised upon the corporate governance advantages of engagement between institutional investors and corporate boards and was designed to redress what were perceived to be the weaknesses in the model of the monitoring board as revealed during the financial crisis. In short, the institutions were to monitor the monitor. The first version was officially branded as ineffective in a government appointed reviews at the end of 2018. It was recommended that the first version should either be abandoned or revised so as to focus more on the results of engagement. Surprisingly, the Financial Reporting Council chose not only to revise the SC in the hope of making it effective within the engagement framework, but also to expand the Code’s concept of stewardship so as to embrace environmental, social and governance matters (including climate change). This “second version” came into effect at the beginning of 2020. The purpose of this paper is to assess the chances of the second version being more successful than the first. It begins by examining the most plausible reasons for the failure of the first version, by reference to the capacity and the incentives of institutional investors to discharge the engagement function which the first version cast upon them. It concludes that the incentives and capacities were weak. Turning to predictions for the second version, it concludes that, in relation to engagement as envisaged in the first version, the second version has not effectively addressed the causes of the weakness of the first version. However, in relation to ESG factors, especially climate change, there are reasons to expect a more positive impact from the second version, mainly because governmental policy has increased the reputational incentives for institutions to exercise stewardship in this area. These reputational incentives may also be supported by changes in investors’ preferences. Overall, the second version may turn out to operate along the same lines as other changes in society rather than as an isolated reform, as with the first version. However, this optimistic prediction is conditional upon the continuance of the governmental policy and social changes which support the second version of the SC.
  • Joanna Bell and E Fisher, 'The ‘Heathrow’ Case: Polycentricity, Legislation, and the Standard of Review' (2020) 83 Modern Law Review early view [Case Note]
    The recent Court of Appeal decision in the ‘Heathrow’ case, Plan B Earth v Secretary of State for Transport is an illustration of the challenges of reviewing polycentric and expert decision‐making. The issues raised in the case concerning the Planning Act 2008 are an illustration of a court's expository role in such contexts. The Court tackled directly a series of interpretive questions concerning the Planning Act 2008's obligations regarding the consideration of climate change. The Habitats and Strategic Environmental Assessment (SEA) Directive issues raised in the appeal, in contrast, were presented with the question of the intensity of review foregrounded in legal argument. The Court therefore sought to articulate the ‘standard of review’ and to apply it to the government's decisions. This way of framing the issue unfortunately sidelined the courts’ expository role in relation to intepreting the Habitats and SEA Directives, leaving key provisions under‐analysed.
    ISBN: 1468-2230
  • S Fredman, D. Du Toit, M. Graham and K. Howson, 'Thinking out of the Box: Fair Work for Platform Workers' (2020) 31 King's Law Journal 236
    The burgeoning gig economy largely operates outside of existing labour standards, mainly because in most countries workers are classified as self-employed rather than as employees. Until now, much legal effort has been focused on bringing platform workers within the scope of labour law by proving that they fit the definition of employee or worker, which functions as the gateway to employment rights. However, this approach is limited, not least because platforms are adept at reconfiguring their conditions of work to avoid the legal definition of employee,. By contrast, not enough attention has been paid to how labour law standards, fashioned for the ‘employee’ paradigm, should be reshaped to meet the needs of platform workers regardless of their employment status. It is these challenges that the Fairwork project in South Africa aims to address.. Funded by the ESRC Global Challenges Research Fund, the project, it aims to create pressure on platforms to improve working conditions through a public ranking system which scores selected platforms according to their record under five broad principles: fair pay, fair conditions, fair contract, fair management and fair representation.. Concurrently, we use the empirical work to develop standards capable of being given legally binding force. Given that the limited impact of legal regulation has prompted action to be taken outside of labour law in this area, what, if any, is the ongoing role of labour law? The paper argues that there is an important two-way interaction between rating standards and legal regulation. Part II examines pathways to change, setting out the project and its overall rationales. Part III examines the substance of the rating principles and their interaction with legal employment rights. Part IV touches on how rating principles might be translated into legally binding standards capable of responding to the needs of platform workers. It concludes that they should be seen as crucially complementary.
  • D. Du Toit, S Fredman and M. Graham, 'Towards Legal Regulation of Platform Work: Theory and Practice ' (2020) Industrial Law Journal (South Africa)
  • S Enchelmaier, '“Juristische Kommentare: Literaturformen in rechtsvergleichender Perspektive – Englisches Recht”' in R Zimmermann, N Jansen, D Kästle-Lamparter (ed), Juristische Kommentare: Literaturformen in rechtsvergleichender Perspektive (Mohr Siebeck, Tübingen 2020)
  • S Enchelmaier, '“The Development of the Free Movement Principles over Time”' in S Garben & I Govaere (ed), Internal Market 2.0 (Hart 2020) (forthcoming)
  • A Briggs, The Conflict of Laws (4th edn Oxford University Press (Clarendon Law Series) 2019)
    Fully updated and rewritten account of the rules of Private International Law as these appear in the ghastly uncertainty of 2019.
    ISBN: 9780198845232
  • JA Armour, 'Derivative Actions: A Framework for Decisions' (2019) 135 Law Quarterly Review 412
  • S Fredman, ' Taxation as a Human Rights Issue: Gender and Substantive Equality' in Alston P and Reisch N (eds), Tax, Inequality and Human Rights (Oxford University Press 2019)
    DOI: 10.1093/oso/9780190882228.003.0004
    This chapter suggests a four-dimensional conception of substantive equality to evaluate the gendered impacts of taxation policies from a human rights perspective. The four-dimensional framework of substantive equality in relation to gender regards the right to equality as aiming to, first, redress disadvantage (the redistributive dimension); second, address stigma, stereotyping, prejudice, and hatred (the recognition dimension); third, facilitate participation and voice (the participative dimension); and, fourth, accommodate difference and transform gendered structures in society (the transformative dimension). This multidimensional conception of substantive equality functions as a valuable tool in evaluating taxation systems for their impact on gender. The chapter then looks at two particularly challenging aspects of taxation and gender: the role of care work, and the role of value-added tax (VAT) and other indirect taxes.
  • A Briggs, 'Brexit and Private International Law: an English Perspective' (2019) Rivista di diritto internazionale privato e processuale 261
    Analysis of the effect of Brexit on private international law and litigation in the English courts, taking a more sane and balanced approach to the possible outcomes of that process than that which is usually produced by those with different axes to grind.
  • P P Craig, 'Brexit and the UK Constitution' in J Jowell and C O’Cinneide (eds), The Changing Constitution (Oxford University Press 2019)
  • J Rowbottom, 'Careful what you wish for: press criticism of the legal protection of human rights' in M. Farrell E. Hughes and E. Drywood (eds), Human Rights in the Media: Fear and Fetish (Routledge 2019)
  • H Eidenmüller, L Enriques, G Helleringer and K van Zwieten (eds), 'Centros at 20: Regulatory Arbitrage and Beyond' (2019) 20 European Business Organization Law Review 399
    ISBN: 1566-7529