Questions surrounding the legitimate extent of the judicial role have long been the source of controversy. Concerns that unelected and unrepresentative judges are ‘legislating’ rather than interpreting the law or are interfering in matters of ‘democratically endorsed’ government policy, have often been, and will continue to be, raised by academics and politicians alike. The question is one of separation of power— of the appropriate constitutional role and division of functions between the executive, judicial, and legislative branches of the United Kingdom Government. This debate has been given a new dimension by the Human Rights Act 1998 (hereafter HRA), most obviously through the courts' exercise of their power under section 3(1) of that Act—the duty to interpret primary and secondary legislation to be, as far as possible, compatible with ‘the Convention rights’. Indeed much has been made of the unique method by which the HRA reconciles the interpretative obligation under section 3(1) with the sovereignty of Parliament by way of the ‘declaration of incompatibility’ under section 4. The doctrine of parliamentary sovereignty imposes limits on the scope of section 3(1); in spite of its ‘broad and malleable’ language, which might permit ‘an interpretation which linguistically may appear strained’, it does not sanction courts to act as legislators. As Lord Nicholls of Birkenhead noted in Re S; Re W, attributing to a statutory provision ‘a meaning which departs substantially from a fundamental feature of an Act of Parliament is likely to have crossed the boundary between interpretation and amendment’. That case has been seen by some as a retreat from what has been termed the ‘far-fetched’ interpretation of section 3(1) adopted by the House of Lords in the earlier decision of R v A. Nicol, for one, has argued that Re S; Re W and Anderson taken together, clearly reject ‘the notion that “interpretations” could conflict with clear statutory words' — as R v A had arguably suggested — thereby endorsing parliamentary sovereignty, above the Convention, ‘as the country's supreme constitutional doctrine’. For it to retain its legitimacy therefore, the judicial act under section 3(1) needs to remain an exercise of ‘interpretation’: to attribute a meaning to a legislative provision ‘quite different from that which Parliament intended … would go well beyond any interpretative process sanctioned by section 3 of the 1998 Act’. It would ‘not be judicial interpretation but judicial vandalism’.

A burgeoning international interest in Carbon Capture and Storage (CCS) as a means of mitigating the effects of climate change has raised a number of novel legal issues, one of which concerns ownership of the underground sites in which captured carbon dioxide can be stored. This paper considers the extent of a surface landowner's rights above and below land and explores the treatment of underground space within the context of CCS in relation to differing jurisdictions. Particular attention is paid to legal principles applied in the United Kingdom and the United States, and consideration is also given to relevant legislation in Australia and Canada.

At the 2002 conference of ICCA (International Commercial Congress of Arbitration), the conference participants debated the following proposition: ‘the parties, not the arbitrators, control the arbitration.’ Thus, the proposition permitted only two answers—either the parties or the arbitrators control the arbitral process. Both answers were consistent with the contractualist theory of arbitration:

Chinese judicial practice demonstrates great diversity in enforcing exclusive jurisdiction clauses. In practice, the derogation effect of a valid foreign jurisdiction clause is frequently ignored by some Chinese courts. It may be argued that these Chinese courts fail to respect party autonomy and international comity. However, a close scrutiny shows that the effectiveness of an exclusive jurisdiction clause has close connections with the recognition and enforcement of judgments. If the judgment of the chosen court cannot be recognized and enforced in the request court by any means, the request court may take jurisdiction in breach of the jurisdiction clause in order to achieve justice. Chinese judicial practice demonstrates the inevitable influence of the narrow scope of the Chinese law in recognition and enforcement of foreign judgments. It is submitted that the Chinese courts do not zealously guard Chinese jurisdiction, or deliberately ignore party autonomy and international comity. Instead, the Chinese courts have considered the possibility of enforcement of judgments and the goal of justice. Applying the prima facie unreasonable decision test is the best the courts can do in the specific context of the Chinese law. The status quo cannot be improved simply by reforming Chinese jurisdiction rules in choice of court agreements. A comprehensive improvement of civil procedure law in both jurisdiction rules and recognition and enforcement of foreign judgments is needed.

It is trite to observe that the past three decades have seen an ‘explosion’ in comparative law. Equally well-worn territory is the fact that constitutional law has been a particular beneficiary of the comparative trend, despite the fact that for much of the twentieth century comparative lawyers tended to avoid public law topics. However, one field of law that has been conspicuously absent from the boom in comparison, at least outside of Europe, is administrative law. This article analyses why the use of comparison has been so vastly different between the two areas of public law. It then surveys some recent developments in administrative law and points to a number of aspects of the field that would benefit from the wider use of comparative methods across the world.

Governments intervene in the energy sector using a variety of measures to pursue a range of objectives, from security of supply and energy efficiency to environmental protection. Recent concerns about the impact of fossil fuels on climate change have resulted in the increasing promotion of biofuels as an alternative to oil. While worries exist with regard to the environmental impact of biofuel production in ecologically sensitive areas, it has been argued that with an effective regulatory framework to promote sustainable production, biofuels could provide a mechanism to provide energy security in an environmentally positive way.1 The interest of the European Union (EU) in the promotion of biofuels production is a relatively recent phenomenon and it is now the world's largest producer of biodiesel and the fourth largest producer of bioethanol. At its most basic level, the promotion of biofuels as an alternative to fossil fuels is part of a wider EU effort to support the use of renewable energy. The promotion of renewable energy is traceable to a number of goals, a central one of which is ensuring security of energy supply.2 Other policy goals supported by the promotion of renewable energies include reducing greenhouse gas emissions associated with climate change, decreasing dependence upon imported oil, the promotion of technological development as well as regional and rural development and employment.3

This article considers the effect of the Brussels I Regulation on the arbitration process in EU Member States. The Regulation says that it does not apply to arbitration, but it is unclear exactly what is excluded by this provision. The article first considers this question; it then discusses asset-freezing orders and antisuit injunctions in aid of arbitration and the granting of damages for bringing court proceedings before a court which, in the eyes of the court asked to grant the damages, ought not to hear the case. It finally discusses conflicts between judgments and arbitration awards.

This article examines how recent judgments of the European Court of Justice have interpreted the concept of a service of general interest in Article 86(2) EC in the delivery of healthcare services. The article explores how and why the Court has afforded greater latitude to Member States in organizational matters by not applying competition rules. By contrast, the Court has actively promoted patient mobility and has not applied the derogation in Article 86(2) EC where it would restrict the free movement of services. Does the Court's policy of protecting individual rights undermine the ability of Member States to deliver a universal healthcare service within finite resources?

This article critically examines the role of the Immovable Property Commission, established in 2005 by the ‘Turkish Republic of Northern Cyprus’ under pressure from the European Court of Human Rights, to redress losses sustained by Greek Cypriots who fled south when the island was partitioned in the mid-1970s. While the Commission has been a modest success, proceedings have been lengthy, its decisions lack transparency, there have been difficulties with restitution and exchange, and the payment of compensation has often been delayed. Corporate ownership and encumbrances, such as mortgages, have also proved problematic. But, whether it contributes negatively or positively to full resolution of the Cyprus problem, or makes no contribution at all, remains to be seen.

It has been suggested1 that those reading this article are likely to fall into two groups: those who regard my proposition as obvious but feel that if I go on, as I evidently intend to, they will be driven to the opposite conclusion; and, on the other hand, those who take the view that my thesis can scarcely be taken seriously, but that they had better pay careful attention, just in case there is something in it.

An eventual sustained democratic transition process in Zimbabwe may include a ‘truth and reconciliation’ commission. The need for—and possible form of—any such institution is situated in a number of discussions: the balance of principle and pragmatism that peace deals sometimes require; comparative experiences in other societies and the promise and limits of institutional modelling; the dynamic between global expectations or prescriptions and ground-level exigencies; the interface of international criminal law and institutions with national-level justice processes; the content of the State's international legal duty to afford a remedy. In considering the extent of an international normative framework limiting the justice options of transitional States, a certain margin of appreciation may be appropriate or necessary to enable a society to reconcile with its violent past on its own terms.

When the European Court of Justice gave judgment in Francovich it was hailed as a triumph, not necessarily for its erudite reasoning, but because it allowed an individual to claim damages from a member State for its failure to comply with Community law obligations, thus providing a method of redress where previously none existed. Although the scope of the remedy was unclear and appeared superficially limited to the facts of the case, it represents the final element necessary to establish a coherent doctrine for the effective protection of an individual's Community law rights.