Law Commission Research Articles

Fighting for Justice for Women who Kill Abusive Partners

This article examines the collaborative process involved in campaigning for and representing women appealing murder convictions, highlighting the power of positive collaboration between lawyers, campaigners, frontline experts and the women themselves. Pragna Patel and Harriet Wistrich, who first met while protesting in the early 1990s outside the Royal Courts of Justice in London, have been pivotal figures in this movement. Patel has dedicated four decades to Southall Black Sisters, an organisation advocating for black and minority women. Wistrich co-founded Justice for Women and later specialised in representing women victim-survivors of male violence, challenging discrimination in the criminal justice system. Their collaboration has led to significant precedent-setting murder appeals and reforms in domestic homicide law. This article reflects on their enduring involvement spanning three decades, detailing their efforts in individual cases and legislative reforms. Their approach focuses on obtaining detailed personal accounts from women and building legal strategies around them, aiming to challenge convictions through a feminist lens. Recently, their collaborative efforts prompted the United Kingdom government to commission the Law Commission to review defences in cases of homicide. This underscores their enduring impact in fighting for justice for women who kill their abusive partners and effecting legal change.

Down the banking hole: Investigating the case of Slovenian banks

The aim of this paper is to analyse who was responsible for the deterioration of the Slovenian banking sector to such an extent that it was almost destroyed by the 2008 financial crisis, necessitating the consideration of an international bailout. A literature review focused specifically on reports from law enforcement agencies and commissions that investigated banking practices, complemented by a qualitative empirical study. In order to gain insight into the reasons why this situation unfolded, ten structured interviews were conducted. The interviewees included experts with experience in the fields of prevention, detection, investigation and prosecution of economic crime, bad credit management, central banking, parliamentary committee management, forensic investigations, investigative journalism, and experts with academic knowledge in law and economics. Five different investigations explored the behaviour of banking sector actors before, during, and after the 2008 financial crisis. These investigations revealed behaviours ranging from negligence to criminal acts. The interviews indicated that the perpetrators were individuals of high social status with significant influence, explaining why people are often not willing to testify against them. On the detection and prosecution front, the main challenges were fears among criminal investigators, prosecutors, judges, and others of retaliation from superiors, job loss, and being publicly lambasted in the media.

Solidarity as a Political Determinant of Health: Insights from EU Competition Policy

Context: The connection between law and political determinants of health is not well understood, but nevertheless it is suggested that the two are inseparable, and this represents an upstream level with scope for influencing other determinants of health (particularly social determinants). Solidarity underpins European health care systems, and given its clear link with redistribution, it can be seen as a means for addressing health inequities. As such, solidarity may be seen as a political determinant of health in the specific context of European Union (EU) competition policy. Methods: A range of EU case law, treaty provisions, and European Commission publications relating to EU competition policy are analyzed. Findings: Solidarity is typically juxtaposed as antithetical to competition and thus as underpinning exceptions to the applicability of prohibitions on anticompetitive agreements, abuse of dominance, and state aid. Case law indicates an additional dynamic between definitions of solidarity at the EU and national levels. Conclusions: This analysis leads to two groups of considerations when framing solidarity as a political determinant of health in the EU competition policy context: first, the predominance of solidarity suggests it may shape competition reforms; second, the EU–member state dynamic indicates less EU-level reach into national competition reforms in health care than may be expected.

Sea-Level Rise and Human Mobility: The Legal Implications for Ireland’s Foreign and Domestic Policies

In October 2023, the Irish government’s Report of the Inter-Departmental Group on National Coastal Change Management Strategy concluded it was inevitable that, as a result of rising sea levels, a managed retreat may in time be required along some parts of the Irish coastline. This stark warning highlights Ireland’s vulnerability as an island nation to global climate change and sea-level rise. While adaptive measures can be made to protect coastal communities, there is a need to undertake comprehensive planning to prepare for the foreseeable impacts of climate change. Ireland is not alone in facing such risks—over a third of states in the world are directly affected by sea-level rise. Such scenarios raise complicated legal questions, which prompted the UN International Law Commission (ILC) to commence analysis in 2018 of the legal implications of sea-level rise. This article starts by examining recent developments concerning the legal implications of climate change in general, before specifically analysing the ongoing work of the ILC on sea-level rise and human mobility. Drawing on international legal and policy frameworks, the article then considers Ireland’s obligations arising from sea-level rise and population displacement. In particular, it addresses a) Ireland’s foreign policy, including international development assistance and legal migration routes for persons fleeing the impacts of sea-level rise; and b) domestic policies relating to climate change adaptation and planning for internal climate displacement.

The Enka v. Chubb/Anupam Mittal v. Westbridge Controversies: Why Not the Hong Kong (Partial) Solution?

This paper explores the critical theme of determining the governing law of arbitration agreements amidst the intricate landscape of international arbitration. Focusing on divergent approaches from key jurisdictions, including England and Wales, Singapore, and Hong Kong, it elucidates the challenges posed by varying legal frameworks. Recent developments, such as potential statutory adjustments in England and Wales influenced by recommendations from the English Law Commission, underscore the need for clarity in governing law determinations. The controversial ‘composite test’ approach in Anupam Mittal v. Westbridge and the traditional English approach in Enka v. Chubb exemplifies the global concerns surrounding these divergent approaches, highlighting the complexities faced by common law courts worldwide. Drawing on these cases, the paper emphasizes the importance of parties expressly choosing the governing law of arbitration agreements to mitigate uncertainties. It underscores the potential positive contributions of model clauses and jurisdiction-specific approaches, such as the Hong Kong International Arbitration Centre (HKIAC) model clause and Hong Kong’s guidance for HKIAC arbitrations. The paper also addresses enforcement challenges, particularly in light of Article V(2)(b) of the New York Convention. It discusses the discretionary invocation of the public policy exception and its impact on enforcement efficacy, emphasizing the need for a holistic approach transcending contractual formalism.

Protecting Private Communications through Law and Policy: The Case of the Screenshot Feature

Individuals rely on digital communication platforms to express the most intimate details of their lives with others. The screenshot feature threatens the ability to do this with confidence, authorizing nonconsensual information collection and sharing by interpersonal actors. In some instances, the harms enabled by the screenshot feature have incited legal action. This study analyzes how judges and policymakers have conceptualized and regulated screenshot collection and the sharing of private communications. Analysis of case law and Federal Trade Commission (FTC) rulemakings reveal inconsistencies both within law and policy and as compared to evidence from social-media users. Judges have provided broad definitions of “authorization” and lofty thresholds to sustain individual harm, making statutory regulation of screenshot collection and sharing unlikely. However, guidance from the FTC has demonstrated a nuanced approach to privacy that recognizes the significance of platform design. Results suggest that design-based strategies—both ex ante and ex post—would be a promising step toward adjusting the norms around screenshot collection and sharing of digital messages.

Assessment of awareness and knowledge of Good Samaritan Law in the general literate population - A cross-sectional study in Telangana.

Road traffic injuries are the eighth leading cause of death in India. The Law Commission of India report says that 50% of the victims who died of preventable injuries could have been saved had they received the medical care on time. To protect the people who help road accident victims, Good Samaritan Law was enacted. To assess awareness and knowledge about Good Samaritan Law among the general literate population and to assess the impact of awareness session on awareness score. In this cross-sectional study, adult participants of either gender, literate enough to read and comprehend the material provided, were included in the study through either an electronic or written informed consent process. The participants were asked to complete a questionnaire, watch/read the awareness video/material provided, and then complete the post-awareness session questionnaire. The participants were divided into the aware and unaware groups for further assessment of pre-awareness scores. The pre- and post-awareness session scores were compared in the participants using paired-t-test. In this study, 379 participants gave consent for participation; however, only 288 participants attempted the post-awareness questionnaire. The mean pre-awareness session score was significantly higher in the aware group (8.5) as compared to the unaware group (5.6). The pre-awareness scores were significantly high in doctors as compared to medical students in the aware group and as compared to medical students, graduates, teachers, and general public in the unaware group. Post-awareness session scores (9.2 ± 2.8) were observed to be significantly higher (p < 0.001) than pre-awareness session scores (6.4 ± 3.4). In this study, it was observed that the percentage of participants who were aware of the law was less. It demonstrated the impact of awareness session on increasing GSL awareness score in participants. These findings indicate the need of awareness programs to transform bystanders into good samaritans.

From mandate to actor: the case of the International Law Commission

From mandate to actor: the case of the International Law Commission

From Suffering to Sovereignty: The Dimensions of Euthanasia and Right to Die with Dignity

Provided the complex socio-legal fabric of India, the discourse on Euthanasia and the Right to die with dignity provokes profound ethical, legal, and societal questions. Therefore, a need to meticulously examine the varied dimensions of Euthanasia arises. Beginning with the basic understanding of the concept, a comprehensive analysis shall be made in regard to various philosophies associated of renowned political thinkers and philosophers. Additionally, comparative insights from foreign legal frameworks shall be drawn. The research includes judgments passed by the Indian judiciary regarding the legalization of Euthanasia with a clear debate in its context. The High Court Judgement of Gian Kaur v. The State of Punjab (1996) and Supreme Court judgments of Aruna Shanbaug v. Union of India (2011) and Common Cause v. Union of India (2018) proved to be the turning points in Indian legal history and shaped the stance of Indian judiciary on the legislation of Euthanasia. The breakdown of Law Commission reports (2006 &amp; 2008) also finds their mention. Can the freedom to choose a dignified death—the ultimate act of human autonomy—be recognized by the law in a culture that is highly pro-life? If so, there’s a need to structure and strengthen regulations to adopt this choice.

Urgensi Persetujuan Dewan Perwakilan Rakyat dalam Pengangkatan Jabatan Publik

Every country and every government, whatever its form and system of government, is required to design and implement policies that are appropriate to the socio-economic conditions of its people and are effective in directing the policies that must be implemented by government organs and government bureaucracy. decisions made by someone who has authority in government, both formal and informal. The approval of the House of Representatives (DPR) for appointments to public positions that are not regulated in the 1945 Constitution of the Republic of Indonesia is an important mechanism in the Indonesian constitutional system. Although the 1945 NRI Constitution does not regulate in detail all public positions, several derivative laws give the DPR the authority to approve the appointment of certain officials. This process is important to ensure checks and balances in government, prevent abuse of power by the executive, and increase accountability and transparency. Through an open fit and proper test, Constitutional Court Decision Number 16/PUU-XII/2014, I Request for re-examination regarding paragraphs (2) to (8) Article 30 of the Corruption Eradication Commission Law, Law concerning DPR Involvement in Recruitment Corruption Activities candidate for member of the Corruption Eradication Commission. Participating in filling public positions by the DPR is regulated by the 1945 Constitution of the Republic of Indonesia (1945 Constitution) and so on. The 1945 Constitution with its broad authority has its own objectives. This study seeks to understand how constitutional DPR protocols can assess the competence and integrity of candidates for public office, so that elected officials are able to carry out their duties well and receive legitimacy from the people. Thus, the DPR's involvement in this process strengthens democratic principles and improves the quality of government in Indonesia.

Considerations of (Non)-Application of Immunity of State Officials from Foreign Jurisdiction in Cases of International and Transnational Crimes

Abstract This article examines the scope and limitations of jurisdictional immunities afforded to high-ranking state officials accused of international and transnational crimes in foreign courts, including international courts. It discusses how international law balances the immunities granted to facilitate international relations and uphold state sovereignty against the need to address serious crimes that threaten the international community as a whole. The analysis delves into key legal debates and landmark cases shaping the understanding of these immunities. A focal point of the analysis is the work of the International Law Commission (ilc) on the topic of Immunity of State Officials from Foreign Criminal Jurisdiction, particularly Draft Article 7. It is argued that ilc’s Draft Article 7, while explicitly clarifying the application of immunity in international crime cases, also provides valuable insights into the scope of immunity for transnational crimes. Transnational crimes, like corruption, are fundamentally private acts carried out for personal gain, regardless of whether they are committed by someone in an official capacity or utilizing the resources and instrumentalities of the state. Therefore, these acts cannot be considered official and do not trigger the application of immunity ratione materiae. By highlighting the implications of Draft Article 7, the article contributes to the broader understanding of how international law can reconcile the need for state officials to perform their duties without fear of foreign prosecution with the necessity of holding them accountable for serious crimes. It suggests a more restrictive approach to immunity, particularly concerning transnational crimes, thereby enhancing the potential for legal accountability for offending state officials.

Tensions in Finland’s ex ante constitutional review: The interplay of politics, law, and media

Abstract Constitutional review has become increasingly subject to heated political debates and struggles. While the constitutionality of laws is often reviewed after the laws have entered into force (ex post), this article examines an ex ante constitutional review assessing the political tensions and struggles typical of it. We examine the Finnish experience, drawing on forty-nine semi-structured interviews among key actors involved in the work of the Constitutional Law Committee (CLC) of the Finnish Parliament, which controls the constitutionality of laws before they enter into force. We find that tensions between law and politics are an important element of the ex ante constitutional review and show how they emerge in the work of the CLC and how the key actors involved in the review seek to control and manage them. We also suggest that the political tensions surrounding the ex ante review have intensified in recent decades and find three main reasons for this development. First, as constitutional and human rights have found their way into an increasingly wide range of political matters, political tensions in constitutional assessment have been aggravated. Second, external legal experts have begun to play a more prominent and public role in the review process, adding to the public tensions relating to constitutional interpretation. Third, the media and journalists have become increasingly interested in constitutional questions, which further inflames tensions. As a result, we suggest that scholars should increasingly explore and make transparent these de facto practices in constitutional review.

Two unsuccessful bites at the legal parenthood cherry – really in the child’s best interests?

ABSTRACT This case review considers Theis J’s judgment in Re Z (Surrogacy: Step-parent Adoption) [2024] EWFC 20, in which she refused a step-parent adoption order but made several other orders in relation to contact and the exercise of parental responsibility between the three adults involved. I posit that while the judgment probably represents the best possible outcome all round – especially the best interests of the child at its heart – it does not reflect the lived reality of most surrogacy agreements entered into in this country, or the experiences of those involved. It does, however, indicate that proposed reforms as recommended by the Law Commission of England and Wales and the Scottish Law Commission in 2023 would be welcome, especially as the intention behind them is precisely to protect against breakdowns in surrogacy arrangements such as sadly happened in this case.

The Legal Consequences of a Violation: Reparation/Just Satisfaction/Damages by Human Rights Bodies and Investment Tribunals

Abstract Remedies granted by both human rights courts and investment tribunals are generally based on the international law of state responsibility as codified by the International Law Commission (ILC) in 2001. However, some special rules (leges speciales) do exist in the statutes of human rights courts and in a few international investment agreements. Despite the different scopes of protection of the two areas of international law, there are remarkable similarities in judicial practice, yet important differences remain. This article explores to what extent there is already mutual influence in practice and where there is still room for mutual inspiration. It comes to the conclusion that investment tribunals could take more into consideration that victims may suffer damage, in particular non-material damage, by the mere violation of their rights. Conversely, human rights courts could pay closer attention to economic valuation criteria when it comes to the assessment of material damage.

International and legal regulation of the application of satisfaction as a form of political responsibility of states

The paper attempts to determine the principles of international legal regulation of the application of satisfaction as a form of political responsibility in international law. Theoretical provisions regarding the international legal regulation of the application of satisfaction as one of the forms of political responsibility according to international law are analyzed. Four forms of satisfaction were analyzed, which were derived by the famous researcher Patrick Dumberry from the University of Ottawa: The first - the responsible state simply apologized or officially expressed regret for committing an illegal act; The second - the state punished the representative or person responsible for the act; The third is when a judicial body makes a statement about the illegality of an action taken by the state. The fourth is monetary satisfaction. Satisfaction may be accompanied by symbolic material compensation for moral damage. The draft articles on the responsibility of states for internationally wrongful acts developed by the UN International Law Commission (adopted by UN General Assembly resolution A/RES/56/83) were analysed. Thus, it is determined that the forms of compensation (reparation) are restitution, compensation and satisfaction: both separately and in combination (Article 34). Article 37 of the Articles on the Responsibility of States for Internationally Wrongful Acts of 2001 deals with satisfaction as a form of compensation for damages, which refers to the first type of satisfaction mentioned above. The practice of the International Court of Justice of the United Nations regarding ordinary satisfaction was considered - the case "Bosnia and Herzegovina v. Serbia and Montenegro" (2007), the case "Rainbow Warrior", the case "Corfu Channel", the case "Armed activities on the territory of the Congo (Democratic Republic of Congo v. Uganda)" . An example of the implementation of extraordinary satisfaction in international law is considered - the Declaration on the Defeat of Germany and the Decision of the Berlin (Potsdam) Conference. Based on the presented material, it was concluded that the application of satisfaction is confirmed by international judicial practice, in particular, by examples of declarative statements. The decisions of the International Court of Justice of the United Nations on the award of satisfaction are widely accepted, to some extent because the condemnation of an internationally wrongful act by an authoritative third party aims to achieve a balance between the interests of the parties in a particular case, on the one hand, and the fundamental interests of the international community, on the other.

All Roads Lead to Rome Combating Impunity for Perpetration of Slave Trade and Slavery Crimes

The Republic of Sierra Leone has proposed amendments to the Rome Statute of the International Criminal Court (ICC) to include, inter alia, provisions for the slave trade as a crime against humanity and has recommended that the General Assembly include the slave trade as an enumerated crime in the Draft articles on Prevention and Punishment of Crimes Against Humanity (CAH) (Draft articles). This declaration came nearly five years after Cardozo's Benjamin B Ferencz Human Rights and Atrocity Prevention Clinic, on behalf of slavery crimes expert Patricia Viseur Sellers, sent commentaries to the United Nations International Law Commission (ILC) to revise in a similar fashion the Draft articles. The Rome Statute creates a wide impunity gap by omitting the slave trade entirely as a war crime and crime against humanity and by including only those conflict-related slavery acts that include causing someone to engage in an act of a sexual nature. Specifically, the Rome Statute does not enumerate the slave trade or slavery under Article 8 as war crimes. It does not define the slave trade within the crime of enslavement under Article 7(g) as a crime against humanity or explicitly enumerate the slave trade within the context of a widespread or systematic attack against a civilian population. War crimes conduct is not captured fully or explicitly under ICC jurisdiction because the Rome Statute sanctions only persons exercising powers attaching to the rights of ownership who also cause that person to engage in an act of a sexual nature. Crimes against humanity conduct also escapes legal sanction when perpetrators transport or otherwise engage in any slave trade acts without exercising powers attaching to the right of ownership over a person. Furthermore, the Rome Statute's bifurcation of enslavement and sexual slavery lead to non-factual, incomplete, and discriminatory results. Sexual slavery is enslavement; its separate enumeration as a crime against humanity has required some victims to prove additionally that they were caused to engage in an act of a sexual nature in violation of non-discrimination and others' slavery harms to escape legal characterization altogether.

THE IMPACT OF THE MATRIMONIAL PROPERTY REGIME ON COMMERCIAL COMPANIES ACCORDING TO ALBANIAN LEGISLATION

Background: The purpose of this study is to examine the interaction between the legal discipline of matrimonial property regimes and the commercial activities of spouses that are established before or during marriage. It aims to investigate how the legal community impacts commercial companies, specifically in the hypothesis where the shareholder of the company is married. There is ongoing debate within legal circles about whether shares of a commercial company established by one spouse during marriage or acquired through a legal transaction are part of the legal community. Regarding this matter, several issues arise: whether the participation in the company's initial capital is governed by community administration rules, which is the legal nature of shares acquired by one spouse, and how the marital community regime interplays with commercial legislation. Another issue that has engaged legal doctrine is whether the spouse of a shareholder is recognised as a shareholder and can participate in the company administration. Albanian Family Code lacks specificity on shares, mainly addressing small family businesses. The study of the interaction of these two disciplines aims to assist jurisprudence because, despite some cases of the Supreme Court and the Constitutional Court in recent years, this is still a relatively new field for Albanian doctrine and jurisprudence. Methods: The research methodology adopted for this paper employs a multi-faceted approach, integrating desk research, legal analysis, case law review, and a comparative study. It encompasses an examination of relevant national legislation, as well as foreign legislation from civil law tradition countries such as France and Italy. Furthermore, European soft law, notably the principles of the European Commission of Family Law (CEFL) focusing on matrimonial property issues, has been reviewed. Our research methodology includes gathering and analysing existing studies and academic literature on matrimonial property regimes. To better understand the norms of the Family Code regarding matrimonial property regimes, we will analyse Italian and French doctrine and jurisprudence, as well as the legal systems based on which the Albanian Family Code has been drafted. It should be emphasised that while this paper’s primary aim is not solely comparative analysis, it strives to assist in better understanding and implementation of the legal community regime as the most used regime by spouses in practice. Also, a comprehensive comparative analysis has been conducted, comparing Albanian legislation and the CEFL Principles, to identify key similarities, differences, and potential areas for enhancement within legal frameworks. Moreover, the jurisprudence of both Albanian and foreign High courts has been extensively utilised to enrich the analysis and provide insights into practical applications of legal principles. Results and Conclusions: The solution to the abovementioned issues depends on the company’s legal structure and articles of participation rules and requires a combined interpretation of matrimonial property regimes and commercial law. In this combined interpretation of the rules, protecting the rights and interests of all involved subjects, the interests of the spouses and those of the commercial company as a legal entity is crucial.

Legal Complexities of Adolescent Relationships: A Study of Protection of Child Sexual Offense Cases in India.

Introduction The Protection of Children from Sexual Offences (POCSO) Act in India prohibits sexual engagement among individuals under 18 years old. However, societal variables also affect many teenagers' consensual sexual activities. Little research has been conducted on the legal ramifications for consenting to sexual action under the POCSO Act. This study examined consensual sexual assault cases under the POCSO Act and their possible outcome. Methodology Five years of medicolegal records from a tertiary hospital were analyzed for sexual assault victims aged <18 years. Descriptive statistics were used to analyze victim demographics, literacy, sexual acts, reporting patterns, and accused-victim relationships. Result A total of 410 instances of sexual assault were recorded, and 29% involved victims between the ages of 16 and 18. Most victims (73.9%) in this age range were literate, and 85.7% provided consent for sexual relations. Parents or guardians reported all cases, and most of the accused were victims' friends. Discussion The POCSO Act offers legal safeguards for sexual abuse and exploitation. However, their use in adolescent sexual consent has raised concerns. The Law Commission of India's refusal to reassess the POCSO Act's age barrier for sexual consent emphasizes the need for a child-centric approach to negotiating complex teenage relationships. Conclusion Balancing legal obligations and developmental needs is essential to addressing consensual sexual acts under the POCSO Act. While sensitively implementing the law, stakeholders must focus on their children's best interests and healthy development. Child-friendly environments and support systems empower victims and reduce trauma in teenage relationships.

Rewriting the law of international organizations: Whither the Asia Pacific?

Abstract The law of international organizations is often described in terms of both its universality and its unity. Writers in this field begin their texts with an acknowledgement that there are common legal principles that have been developed by, and can be applied to, a variety of international organizations. The idea that there are legal principles applicable to multiple organizations – whatever their membership, location, powers, technical functions, or financial resources – is also implicit in the reports of the International Law Commission discussing the immunities, responsibilities, and law-making capacity of international organizations. But despite this search for common principles, a question remains whether international institutional law is based on the practice of all, or at the very least, a range, of organizations. Writers in this field have tended to focus on the activities of organizations based in either Europe or North America, including the United Nations and its specialized agencies, the European Union, and Council of Europe. This article argues that the omission of the principles and practices of organizations outside Europe and the United Nations’ system, specifically Asia Pacific organizations, undermines the claim of international institutional law to be universal. It explores the way in which a more inclusive approach – one that pays attention to the perspectives of Asia Pacific organizations – could illuminate certain features of the law and lead international lawyers to reconceive some of its central principles.

The origins and work of the Scottish Law Commission, and the problem of the codification of Scottish private law

The subject covered in the paper is the origins, structure and workings of the Scottish Law Commission created, along with its English counterpart, under the Law Commissions Act of 1965. The author of the article outlines the course of conceptual and legislative work to constitute the new commission, the extent of its relationship with and dependence on public authorities, as well as the key differences between the legal position of the two commissions, symbolically highlighted by the English commission’s gaining a stronger mandate under the 2009 Law Commission Act. The final part of the paper is devoted to an attempt to assess the achievements of the Commission to date, the reasons for the failure of the premise of the grand codification endeavour, and the successes that the Commission claim in terms of reforming specific institutions and branches of law.