English Law Research Articles

Artificial Intelligence for Clinical Decision-Making: Gross Negligence Manslaughter and Corporate Manslaughter.

This paper discusses the risk of gross negligence manslaughter (GNM) and corporate manslaughter charges (CM) when clinicians use an artificially intelligent system's (AIS's) outputs in their practice. I identify the elements of these offenses within the context of the law of England and Wales and explore how they could be applied in a potential scenario where a patient's death has followed AIS use by a clinician. The risk of a conviction due to making an AIS-augmented workplace mistake highlights the non-trivial nature of AIS adoption in healthcare, and that the consequences of its use must be considered by all interested parties prior to AIS adoption.

The repeal of Australia’s problematic family law presumption (and other amendments): cautiously welcomed – but what has been lost?

ABSTRACT Felicity Kaganas was intrigued by the legal concept of presumptions. She explored the presumption in the family law of England and Wales before and after its introduction in 2014. The presumption which began operating in the Australian Family Law Act 1975 (FLA) in 2006 stated that ‘equal shared parental responsibility’ (‘joint legal custody’ or guardianship) is in the best interests of children and created a legislative link between the making of such an order to shared parenting time orders. Many subsequent reviews of the FLA recommended amending the presumption, if not repealing it, but no changes were made. Meantime in England and Wales a less intrusive presumption was introduced, together with a Practice Direction intended to limit its over-use. Then in 2023 major changes to the FLA in Australia were introduced, including repealing the presumption. They became operative in May 2024. This article explores their potential to better protect parents and children who have experienced family violence. It also examines the potential consequences of the repeal of sections that provided guideposts when making shared care orders and others that rendered the past caring for children relevant. These losses could be detrimental to mothers and children who have lived with domestic and family violence or abuse.

Parenthood and parental responsibility: legal messaging and the power of law

ABSTRACT In this paper I will engage with a position Felicity Kaganas has often elaborated upon, and with which I agree, namely, that lawmakers often mistake law’s messaging for law’s power. In doing so I will focus on the law’s management of parental status and the performance of parental responsibility. I will argue that English law’s disaggregation of parental status and parental function should have enabled law to distance itself from involvement-by-presumption in the particularities of the disputes between parents and other carers about children, and enabled it to perform a better, more situation-sensitive role in the management of those disputes. It should have allowed for a more pragmatic, less ideological and generalised, decision-making process for particular disputes, and paid better attention to the actual children at the heart of those disputes. I argue that, given the limits of the power of law in resolving family disputes (which I also elaborate in the paper), law has a limited role in these situations. There are other orders of power – beyond law – which affect the way in which legal power works and may misdirect (or, at least, redirect) its ambitions.

A Tale of Too Many Doctrines: Supervening Impossibility and the Sale of Goods

Contracts for the sale of goods contain three default rules addressing the problem of supervening impossibility: sections 7 and 20 of the Sale of Goods Act 1979 and the doctrine of frustration. This article uses a legal historical method to examine why this is the case and what the relationship between these rules is. It contends that the current approach is the accidental result of a series of historical contingencies and argues that it is unsatisfactory for several reasons. It then offers suggestions as to how the law might be rationalised. On a broader level, the inquiry provides a lens through which the wider history of supervening impossibility in English contract law can be explored. The article argues that our current conceptualisation of the law prior to 1863 is fundamentally flawed, and that this inhibits our understanding of how the earlier law both shaped and confused the development of a more general doctrine of supervening impossibility.

The Impact of Brexit on the British Constitutional Law

Brexit as a hybrid phenomenon, that is, both legal and political, is the next stage in the debate on the place and role of the European Union (EU). The analysis of the impact of EU legislation on the shape of British constitutional law requires establishing the admissibility of reversing existing constitutional modifications. The author will argue that the age of globalisation and establishing legal network links, the participation of states in supernational organisations can result in irreversible modifications of the scope and meaning of constitutional law. In a simplified way, individual legal systems in a legal pluralism are “open”. The changes taking place are irreversible because they concern the foundation of competences as well as the system position of individual national authorities.

Policies, Places and Practices: Why Environmental Law Scholars Should Care About the Levelling-Up and Regeneration Act 2023

Abstract The Levelling-Up and Regeneration Act 2023 has marked major reforms in how planning law legally conceptualises policies, places and practices. These reforms have an impact not only on the scope of planning law but also on the shape of environmental law in England and Wales. In particular, the Levelling-Up and Regeneration Act 2023 changes how different forms of national and local policy legally interact, creates new administrative regulation for protected landscapes and establishes a new framework for environmental impact assessment called the Environmental Outcome Reports. This introduction to the legislation illustrates the importance of understanding the planning law reform for environmental law scholarship more generally.

The price of loyalty to Vladimir Jabotinsky: moral honesty and political irrelevance – Yehuda Benari’s life and work (1940–48)

ABSTRACT This essay draws attention to Yehuda Benari, a forgotten figure in the Revisionist Zionist movement who, in addition to serving as the movement’s attorney general (1938–46) and the head of the London office (1947–48), was a leading Zionist lawyer, activist, historian, and journalist. My thesis is that Benari modeled his life, both actively and intellectually, on the leading principles and ideals of Vladimir Jabotinsky. However, his unwavering commitment to Jabotinsky’s interpretation of Revisionist Zionism impeded Benari’s chances of adapting to change and prevented a political career in independent Israel. Nonetheless, his work in the 1940s on behalf of political prisoners sheds light on the way Revisionists used British law as part of their overall struggle. This piece also helps us interpret the political fate of a generation of Revisionist Zionists between Jabotinsky’s death (1940) and the establishment of the State of Israel.

Abusive litigation in China: comparative insights and practical approaches for reform

This article provides a comprehensive examination of abusive litigation in both civil and criminal cases in China, focusing on its forms and impacts. It proposes nuanced regulatory approaches that emphasize the importance of identifying responsible parties and implementing appropriate compensation measures. In the Chinese legal system, abusive litigation varies by context. In civil cases, it often manifests as actions that clog the courts and drain legal resources, raising concerns about lawyer accountability and the financial burdens on victims. Although frequently discussed in Chinese literature, the above topic has seen limited comparative analysis, despite similar problems existing across different jurisdictions and a clear need for mutual learning. The article suggests that, in civil cases, insights from English and Dutch law could assist Chinese regulators in reducing incentives for lawyers to pursue unmeritorious or abusive cases and improving compensation for victims. In the criminal law context, abusive litigation is more prevalent in minor offenses in China, primarily due to issues related to the public power structure. The proposal emphasizes the need to optimize power distribution within the Chinese legal system, thereby safeguarding the integrity of the law and upholding human rights.

Pre-trial protocol in civil proceedings

The scientific article examines the legal nature of the pre-trial protocol in civil proceedings. The institution of judicial evidence was subject to change in connection with the latest reforms of the civil procedure legisla-tion. This has led to the emergence of new institutions and the pre-trial protocol in civil proceedings is such. Until 2022, the Civil Procedure Code of the Republic of Kazakhstan (hereinafter CPC RK) did not have di-rect legal regulation of this institution, and accordingly, no theoretical studies were conducted on this issue. In civil proceedings, the prototype of the institute of pre-trial protocol was a foreign legal institution, such as the disclosure of evidence and the exchange of arguments, characteristic of English and American procedural law. The practical necessity of many aspects of such a phenomenon as the pre-trial protocol, the incomplete-ness of theoretical developments and the need to improve legislation determined the relevance of the topic of the scientific article. It should be recognized that the mechanism for drawing up a pre-trial protocol, in fact, designed to ensure the implementation of the principles of competition and equality of the parties, was not sufficiently enshrined in the civil procedural legislation of the Republic of Kazakhstan. At the same time, consistent legislative regulation of the activities of bodies for the disclosure of evidence in civil proceedings is required. The institution of pre-trial protocol in civil proceedings requires regulation and integration at the legislative level, since the mechanism of conclusion in the current CPC of the Republic of Kazakhstan has not been fully investigated.

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.

Which law should govern the ‘arbitrability’ of a dispute in England?

Abstract This article considers, from an English law perspective, the question of which law should govern the arbitrability of a dispute. The focus of the article is on the position preaward as opposed to postaward, which is expressly addressed by the New York Convention. The article analyses this question in light of the decision of the Singapore Court of Appeal in Anupam Mittal v Westbridge Ventures II Investment Holdings, the only authoritative treatment of the relevant issues by a common law jurisdiction. In Anupam, the court concluded that a composite approach to the law applicable to the arbitrability of a dispute should apply, requiring a dispute to be arbitrable under both the law of the seat of arbitration and the law applicable to the arbitration agreement. The authors suggest that a composite approach to the issue of arbitrability should not be followed in England. Instead, English law should apply the more orthodox approach of looking to the law of the seat. An approach that looks to the law of the arbitration agreement would be particularly detrimental to English arbitration law given the decision of the UK Supreme Court in Enka v Chubb. It underlines the need for reform of the Arbitration Act 1996 to address some of the well-known problems caused by Enka and which could be expanded by the additional focus on the law applicable to the arbitration agreement provided by Anupam.

The concept of «force majeure» under the laws of Ukraine, the United Kingdom and the United States

The article analyzes the concept of force majeure provided for in Article 14-1 of the Law of Ukraine «On Chambers of Commerce and Industry in Ukraine» No. 671/97-ВР of December 2, 1997, which defines the list of circumstances falling under the concept of «force majeure». This list is quite broad, but not exhaustive. At the same time, such a list of force majeure circumstances did not exist before September 2, 2014, and this list appeared in connection with the anti-terrorist operation in eastern Ukraine after the entry into force of the Law of Ukraine «On Temporary Measures for the Period of Anti-Terrorist Operation» No. 1669-VII of September 2, 2014. It is emphasized that the Civil Code of Ukraine does not provide for the interpretation of such concepts as «force majeure» or «force majeure». The Commercial Code of Ukraine, in contrast to the Civil Code, states what are not extraordinary and unavoidable circumstances. Comparing the application of the concept of force majeure under Ukrainian law and UK law, it is worth noting that UK law does not provide for the concept of «force majeure» in legislation, as force majeure must be provided for in the contract. It is determined that the UK judiciary operates with the concept of «frustration», and the judiciary of the United States of America - with the concept of «commercial impracticability», which are inherently close to the doctrine of force majeure, although they contain some differences. Namely, the doctrine of force majeure refers to liability for non-performance or improper performance and is usually clearly defined in law, as is the doctrine of commercial impracticability in the United States of America. At the same time, the doctrine of «frustration» is not clearly provided for in English law. In addition, such doctrines also have different consequences: the doctrine of force majeure may be applied when it comes to exemption from liability for non-performance or improper performance of an obligation, while the doctrine of frustration and the doctrine of commercial impracticability are more likely to apply to the failure to perform an obligation in general, and even between these two doctrines there are certain differences, as noted by the court in The Aluminum Co. of America (ALCOA) v. Essex Group Inc. The doctrine of frustration may be applied when, if the parties had known about the change in circumstances and their impact on the relevant obligation, they would not have become a party to such an obligation. In turn, the doctrine of commercial impracticability relates more to the commercial component of the obligation and concerns unfavorable (in financial terms) consequences for one of the parties.

The Doctrine of Election U/S 35 of the Transfer of Property Act, 1882: Development & Contemporary Relevance

The principle of election is regulated by section 35 of the Transfer of Property Act 1882 and forms a doctrine of equity whereby there must be a choice of one inconsistent right or claims arising under the same instrument conferred by a beneficiary. The principle of election is regulated by section 35 of the Transfer of Property Act 1882. It forms a doctrine of equity whereby there must be a choice of one inconsistent right or claim arising under the same instrument conferred by a beneficiary. The doctrine keeps one from receiving the fruits of any legal document and refusing its obligations simultaneously. This doctrine is derived from the English equity law and adopted to India. It has developed into ensuring equity and justice in property, including wills, settlements, and deeds. Election refers to the necessity of electing between two conflicting or alternative rights conferred by the same instrument, where both rights cannot be enjoyed simultaneously. It underlines that the one who benefits under an instrument also bears the burden that follows it. This doctrine does not allow beneficiaries to take in favorable provisions but reject adverse ones thereby ensuring consistency and fairness. The judgment in the case of C. Beepathuma v. Viduri Shankar Narayana Kadambolithya is AIR 1965 SC 241, highlighting that the done must elect for or against the instrument. It is highly relevant to the settlement of property litigations as it averts unjust enrichment, in that a beneficiary must receive both the fruits of rights and liabilities created through a legal document. The doctrine was developed on the foundation of equity and is of high importance for the observance of justice in law concerning property as it forces recipients to either abide completely by the tenets of transfer or to relinquish the benefit.

Outsourcing Empire: International Monetary Power in the Age of Offshore Finance

Abstract Offshore finance allows foreign banks to create US dollars under the laws of an offshore jurisdiction. How and why does this affect international monetary power? Conceptually, I argue that offshore finance bifurcates across borders the shared power of the state and banks to create money, combining the US dollar with mostly English law. Empirically, I demonstrate that more US dollars are created offshore outside US jurisdiction than onshore within it. Offshore finance increases liquidity, at higher risk, and leads to a cross-border entanglement of issuing country, offshore financial centers, borrowers, and global banks. In short, offshore finance changes the power inherent in money. Consequently, international monetary power has become the ability to get access to offshore dollars in combination with the capacity to determine international liquidity and to set, select, or circumvent the related rules. It is constrained by the hierarchically organized social credit relations that money consists of. The international monetary power of the United States has become an instance of indirect rule with global banks having been delegated the prerogative of US dollar creation. As is common with indirect rule, it entails a difficult balancing act between geographical reach and centralization of power.

Between a rock and a hard place: domestic abuse and being a migrant woman in England and Wales

Legal responses to domestic abuse have been a political priority of the UK Government since at least 2010, eventually leading to the passing of the seminal legislation in this area for England and Wales, the Domestic Abuse Act 2021. However, the exclusion of protection for migrant victim-survivors with precarious immigration statuses under the Act demonstrates a failure in understanding that the experience and risk of domestic abuse differ for these individuals from that of the mainstream, due to their intersectional identities as (predominantly) migrant women. Many migrant victim-survivors still find themselves trapped in abusive situations, as the law fails to safeguard their rights to reside legally should they choose to present themselves to authorities by reporting their abuse. A distinct lack of acknowledgment as to inequalities faced by those at the intersection of migrant status and gender (Crenshaw, 1989; 1991) has led to increased insecurity for some of the most vulnerable. This article shines a light on this discrimination under the law in England and Wales. It adopts an intersectionality framework to examine such inequality, analysing Appendix Violence Domestic Abuse and the Migrant Victim Domestic Abuse Concession in UK immigration law, as well as the Support for Migrant Victims Pilot and its relevant Evaluation Report, against the international standards of the Istanbul Convention. It argues that the UK Government is failing to tackle the problem of migrant victim-survivors’ protection concerning domestic abuse, and in some situations, has made it worse.This article aims to state the law as of 1 May 2024.

The Law of Finding Lost Movable Property in England, Germany and Scotland

Abstract The law of finding lost movable property is not only a practically significant but also doctrinally fascinating topic, which has, however, only rarely been treated comparatively. Therefore, the article analyses to what extent a common core exists between a civil law (Germany), mixed (Scotland) and common law (England) legal system and whether the three jurisdictions achieve the purposes of the law of finding. In light of the scarcity of legal literature, the article is the first detailed treatment of the subject in Scots law. It does not only demonstrate that the common core between all three jurisdictions is remarkably small but also that German and Scots law are notably similar, while English law generally takes the opposite legal approach, indicating that Scots law is more related to civil than common law in this field. Moreover, in contrast to both Germany and Scotland, England does, because of the disadvantageous legal position of the finder, not accomplish the purposes of the law of finding; that is, neither (primarily) restoring possession of lost property to its owner nor (secondarily) freeing the finder from the burden of safekeeping found property for the owner. Consequently, legislative reform of English law is indicated.

Volition and control in law and in brain science: neurolegal translation of a foundational concept.

The law assumes that healthy adults are generally responsible for their actions and have the ability to control their behavior based on rational and moral principles. This contrasts with some recent neuroscientific accounts of action control. Nevertheless, both law and neuroscience acknowledge that strong emotions including fear and anger may "trigger" loss of normal voluntary control over action. Thus, "Loss of Control" is a partial defense for murder under English law, paralleling similar defenses in other legal systems. Here we consider the neuroscientific evidence for such legal classifications of responsibility, particularly focussing on how emotional states modulate voluntary motor control and sense of agency. First, we investigate whether neuroscience could contribute an evidence-base for law in this area. Second, we consider the societal impact of some areas where legal thinking regarding responsibility for action diverges from neuroscientific evidence: should we be guided by normative legal traditions, or by modern understanding of brain functions? In addressing these objectives, we propose a translation exercise between neuroscientific and legal terms, which may assist future interdisciplinary research.

A Comparative Analysis of Remedies and Challenges in the Protection of Stakeholders Rights: OHADA vs. English Corporate Law

This article provides a comparative analysis of the remedies and challenges in the protection of stakeholder rights under OHADA (Organization for the Harmonization of Business Law in Africa) and English corporate law. The study focuses on key legal remedies available to stakeholders, including the derivative action model, the unfair prejudice remedy, personal right of action, remedies for breach of contract and torts, representative actions amongst other remedies. Under OHADA, the uniform legal framework aims to harmonize business laws across member states, promoting legal certainty and economic growth. In this context, the derivative action model allows minority shareholders to seek redress for wrongs committed against the company, while the unfair prejudice remedy protects stakeholders from actions that harm their interests. Personal right of action and remedies for breach of contract and torts provide additional avenues for stakeholders to seek justice. Representative actions further enable collective redress for affected parties. In contrast, English corporate law, rooted in a common law tradition, offers flexibility and judicial interpretation in protecting stakeholder rights. The derivative action model in English law allows shareholders to bring claims on behalf of the company, while the unfair prejudice remedy addresses situations where minority shareholders are treated unfairly. Personal right of action and remedies for breach of contract and torts are well-established, providing robust protection for stakeholders. Representative actions in English law facilitate collective litigation, enhancing access to justice. In tandem with the foregoing, this paper explores challenges in the practical enforcement of these remedies, including differences in legal culture, enforcement mechanisms, and jurisdictional issues. By comparing OHADA and English corporate law, the study provides insights into the effectiveness of various legal frameworks in protecting stakeholder rights and offers recommendations for enhancing stakeholder protection through legal reforms and policy initiatives. Through a content analysis of primary and secondary data, we uphold that this article contributes to the discourse on corporate governance and stakeholder theory, offering valuable perspectives for policymakers, legal practitioners, and scholars interested in the protection of stakeholder rights in diverse legal environments.

The Anti-Marriage Plot: The Mistress as Heroine in G.W.M. Reynolds's Rosa Lambert

Abstract: This essay uses George W.M. Reynolds's novel Rosa Lambert; or, The Memoirs of an Unfortunate Woman (1853) as a case study to illustrate various types of "anti-marriage" plots circulating in Victorian popular fiction in the 1850s—representations of romantic and sexual relationships that challenge and even subvert middle-class Victorian views of marriage as the only desirable path to domestic happiness, particularly for women. Reynolds's representation of Rosa's successful career as a courtesan and professional mistress demonstrates the parallels between marriage and prostitution while also exposing marriage as primarily an institution that served the interests of men, highlighting many of the same flaws in English marriage laws that mid-century feminists were trying to reform.

Jeremy Bentham on adult-child sex and infanticide

ABSTRACT Jeremy Bentham is becoming increasingly well-known for his defence of consensual male same-sex relationships on the grounds of an ‘all-comprehensive' sexual liberty. The question arises whether his defence of pæderasty, or ‘the love of boys', and hence of adult-child sexual relationships, on the same principle makes his defence of male same-sex relationships problematic. This paper investigates the extent to which, under Bentham's principle, adults would not be legally punished for having consensual sexual relationships with children, or rather with adolescents. It concludes that Bentham’s position in relation to sexual relationships between adult males and under-age females followed the provisions of the English law of his time, while his position in relation to sexual relationships between adult males and under-age males is little different from the provisions of the law of our own time. Bentham was, moreover, concerned about the reputational damage suffered by unmarried mothers, and hence recommended the decriminalizing of infanticide. In the post-Malthusian age, Bentham, like many of his contemporaries, had become concerned about the potential suffering caused by over-population. His aims in this respect would be met by the forms of contraception and abortion available today.