In the light of the High Court's decision in R (Khan) v Secretary of State for Justice [2020] 1 WLR 3932 this paper contends that a revised approach to the interpretation of Articles 5 and 7 of the European Convention on Human Rights is needed. The paper argues that the Article 5 ECHR right to liberty and security plays a developing, though overlooked, role in the context of regulating determinate prison sentences. English law's conclusion that Article 5 of the ECHR has little to offer in this context is wrong and needs to be reconsidered. Equally, a more generous interpretation of Article 7 of the ECHR is now required: an approach which reflects the reality of determinate sentences.

Vaccines have continued to play a crucial global role in preventing infectious diseases in the twenty-first century. The Covid-19 pandemic has underlined their importance, with vaccines seen as the best way to protect the public from coronavirus. A longstanding problem of governments has been the extent to which they should assume responsibility for the compensation of those injured by vaccines. This paper reappraises the vaccine damage schemes currently available in the US and UK in the light of the Covid-19 pandemic. It argues that any improvements to both US and UK schemes should be included in a revised national vaccine policy which takes into consideration their respective long-term national vaccine strategies to prepare for future pandemics. It supports the adoption of a UK-wide National Vaccine Injury Compensation Programme, similar to the one in the US, to be administered by the Secretary of State for Health and Social Care. To balance the need for rigorous criteria to determine causation with the need for fairness, the programme should adopt the US practice of allowing negotiated settlements between parties in circumstances where review of the evidence has not concluded that the vaccine(s) caused the alleged injury but there are close calls concerning causation.

Loot boxes have recently become a game mechanism of concern to policy-makers and regulators. The similarity between loot boxes and gambling is clear, and loot boxes and their regulation are commonly viewed through the lens of gambling. By contrast, very little attention has been given to tackling them as unfair, and in particular aggressive, commercial practices under consumer law. This article argues that by classifying the provision of loot boxes as a potentially aggressive commercial practice we will see that consumer law may protect gamers from some of the significant harms with which such products are associated.

There has been a transformation in the number and the scope of criminal laws relating to forms of market misconduct. Surprisingly, however, this area of criminal law is not one that has been systematically explored in recent writing about criminalisation. However, concepts such as white-collar crime, or financial crime, which are widely used to describe this area, are poorly defined and offer little analytic clarity. This paper argues that to take market crimes seriously it is necessary to focus on what is distinctive about markets and about market misconduct as a form of wrongdoing. This allows us to see the area as a whole and identify certain common features based on central institutional features of markets and the role that criminal law has played in protecting them – notably ensuring competition, preventing exploitation, and embedding trust. This approach, then, can be a means of raising wider questions about our understanding of the relationship between criminal law and the market in modern society – and the role that criminal law can or should play in regulating those markets.

Since 2019, Irish judicial education has been undergoing major structural change. Prior to the legislative establishment of the Judicial Council in that year, formal training for judges in Ireland was almost non-existent. Innovation in this area was limited to the holding of judicial conferences that occurred annually from the mid-1990s onwards. This paper places the training of Irish judges in its international context and analyses the reflections of 22 judges on how they learned the skills of judgecraft prior to the creation of a formalised system of judicial education and training. The data demonstrates that members of the judiciary engaged in a range of largely informal learning activities and provides insights into a hitherto unexplored aspect of Irish judicial culture. The data is also of broader significance in highlighting organic and unofficial aspects of judicial education, which can be overlooked in jurisdictions with highly-developed, formalised structures for training the judiciary.

From a legal and economic perspective, the global financial crisis, terrorist attacks, wars, natural catastrophes, and COVID-19 all have one thing in common: they are potentially ‘material adverse change’ events. Such events are unpredictable and have severe consequences for the global economy. To help manage the fallout from such negative events, businesses in economically valuable and complex deals, such as debt financing or mergers and acquisition (M&A) agreements, include special contractual risk allocation provisions, called Material Adverse Change/Effect (MAC) clauses. The COVID-19 crisis has had a drastic effect on M&A and debt financing deals, often leading to renegotiation and sometimes to litigation of these agreements based on MAC clauses. Termination of such transactions via MAC clauses poses serious risks, including those of causing a domino-effect in the market.

The effects of MAC clauses in debt finance (as opposed to M&A deals), however, have been largely overlooked both in law and in finance. This paper is the first to investigate the pre-contractual (ex-ante) and contractual (ex-post) effects of MAC clauses in commercial debt financing agreements. It proposes a novel Multifunctional Effect Approach of MAC clauses in debt finance. This paper aims to explain why the commercial parties attach high importance to these vague and uncertain MAC clauses in debt financing agreements but hardly ever rely on them. First, the paper argues that apart from acceleration of the credit facilities, MAC clauses have various beneficial effects, such as screening. Secondly, MAC clauses should be regarded not only as mechanisms to solve information asymmetry but also have the following effects: improving governance, decoupling debt, providing restructuring impulses, countering uncertainty, signalling with acceleration. Potentially, MAC clauses also have the effect of a penalty default rule. The paper finds that despite these functions, the potential of MAC clauses in debt finance is not fully utilised, due to the unique characteristics of debt finance. This significantly undermines the efficiency of MAC clauses in debt finance, as lenders overprotect themselves by additionally relying on other contractual protection mechanisms and risk offsetting strategies for more efficiency.

This paper explores the everyday lives of low-paid, low-skilled EU migrant workers living in and around Great Yarmouth in the East of England both pre- and post-Brexit. It considers the legal problems they face, especially around employment law, and how those problems may be resolved. It draws on the results of quantitative and qualitative research to examine the reach of law into the everyday lives of vulnerable EU migrants. We term our research ‘pragmatic law’ (PL) because our experience is that most legal issues, at least with the groups we are working with, do not enter any formal legal resolution pathway at a community level. They are addressed in the everyday, often by first-tier generalist (and sometimes volunteer) advisers with no formal legal training, who make no express reference to ‘the law’. This access to advice and problem resolution at a street level can be a lifeline to those living at the margins of the workforce.

There is a growing body of scholarship examining the impact of courts’ social rights judgments, especially their distributive impact (ie the extent to which they deliver social rights-related goods and services to the poor and marginalised). Commentators have used this impact to evaluate the effectiveness of courts in realising citizens’ social rights. This paper contributes to the scholarship by adding a new ‘relational’ dimension to our understanding of such impact. It uses the literature on the concept of trust from philosophy, sociology and other disciplines to analyse the impact that social rights judgments have on the relationship between citizens and the political branches of government, and argues that social rights judgments can modify two elements of this relationship that determine the dynamics at play in it: citizens’ vulnerability to the political branches with respect to the relevant goods and services; and citizens’ uncertainty about the political branches’ exercise of control over the goods and services (which can promote the political branches’ trustworthiness). By broadening our understanding of these judgments’ impact, the paper offers a valuable lens through which to analyse social rights judgments and adds needed nuance to current debates about courts’ effectiveness in realising citizens’ social rights.

The appointment of recent Attorney-Generals for England and Wales has occasioned much comment about their experience. This paper considers whether, following the transmogrification of the Lord Chancellorship over a decade ago, the backgrounds and activities of recent leaders of the Attorney-General's Office suggest the time is now right for similar changes to the Law Officers’ roles. In doing so, it presents a range of original data on aspects of the role and on characteristics of Attorney-Generals, which suggests that unless self-restraint is exercised (by the Prime Minister and the post-holders) we may ineluctably be on the path to reform.

The recent advances in information technology now allow millions of people to trade and invest in an array of financial assets with the help of online brokerage platforms. This allows retail investors to have more control over their own financial well-being, arguably a positive development. Nevertheless, trading and investing with real money comes with serious risks, especially for vulnerable people. The current UK framework for the regulation of online trading in financial assets overlooks vulnerable groups, such as children, disabled adults, and vulnerable women. By drawing a parallel between online gambling and online trading, the negative effects of online trading can be minimised. The UK regulatory and policy framework surrounding online gambling could provide valuable solutions to tackle the existing lacunae in the protection of vulnerable groups in the online trading environment.

The UK has recently adopted a policy of granting digital-only proof of immigration status for certain groups of migrants. More than 4.5 million individuals are reliant on this form of status and the number is growing. In this paper, we argue that this policy, as currently operationalised, is unlawful as a result of its discriminatory impact. If it remains unchanged, the roots of digital discrimination in immigration policy and administration will be allowed to spread, with potentially disastrous consequences.

The ‘code adjudicator’ is a new statutory intervention in business-to-business disputes. They are Janus-faced, combining a statutory arbitration function with a regulatory remit. This paper is a detailed critique of the ‘Pubs Code Adjudicator’, which presides over the Pubs Code Regulations 2016 and intervenes in the contractual relationships between the largest pub-owning companies and their tied tenants. Drawing on a sample of interviews with affected tenants, arbitration data, and legal appeals under the Arbitration Act 1996, we argue that – although these ‘new intermediaries’ show promise – there are a series of limitations with both the function of the Pubs Code Regulations and the ‘code adjudicator’ model itself. In particular, our findings demonstrate the use of delaying tactics, the interaction of code adjudication with the parties’ existing contractual relationships, and issues with the application of arbitration ‘burden of proof’ standards to the exercise of duties under the statutory code.

This paper focuses on the drivers steering companies’ behaviour over uses of patented health technologies, taking Covid-19 as a case study. Global equitable access to health technologies is vital to bringing the pandemic under control. Reflecting this, global mechanisms for rightsholders to share intellectual property rights, data and know-how over such health technologies have been developed. Yet, to date, there is limited support from corporate rightsholders for such mechanisms. Instead, health technologies have been licensed largely based on bilateral deals, with vast global inequalities emerging. Given the traditional focus within company law on prioritising shareholders' short-term financial value, we argue that it is unsurprising that many corporate rightsholders adopt a protectionist approach to patents, even in the face of health crises. However, we argue that the tide may now be starting to shift, catalysed by an emergence of engaged shareholders petitioning for socially responsible corporate behaviour, including for uses of intellectual property over health technologies in a manner that more clearly aligns with public interests. If harnessed and encouraged, such engaged shareholder behaviour could present an opportunity to reframe the conception of shareholder value towards one that considers a long-term sustainable approach and ultimately to shift corporate behaviour around uses of intellectual property over health technologies to take public interests into account.

The regulatory protection of credit consumers, in general, is paramount due to the considerable use of credit, the imbalanced bargaining positions of the contracting parties and the adverse effect of over-indebtedness on individuals and society alike. These concerning factors are worsened in the case of High-Cost Short-Term Credit (HCSTC) consumers owing to their disadvantaged financial position and other recognised vulnerabilities. In this respect, the paper argues that direct regulatory intervention, despite its importance, is not always a silver bullet. Through the analysis of the overhauling of the UK HCSTC regulatory framework, this paper demonstrates the shortfalls of these regulatory changes. Accordingly, the paper shifts the argument towards improving the decision-making mechanisms of HCSTC consumers, ie the role of ‘libertarian paternalism’-based interventions. By using a bespoke experimental survey, the paper demonstrates the type of behavioural interventions that can assist in this endeavour and which the regulator could possibly mandate.

Legal systems around the world apply various strategies to mitigate agency costs between controlling and minority shareholders. A systematic review of the transnational law on the loyalty and care obligations of controlling shareholders reveals various doctrinal choices. This study aims to uncover the evolution of these choices by employing a law-in-context methodology. Accordingly, it seeks to explain the differences in governance selections by exploring the cultural, historical and socio-economic backgrounds of the particular legal systems in which organisations and decisions are embodied. I conduct a macro-level inquiry which focuses on the cultural environment and business history development to understand different doctrinal designs. In particular, I argue that those dissimilarities are a result of unique cultural-non-formal norms of corporate governance regarding the protection afforded to shareholders’ interests and they correspond to the historical development of the law of corporate groups across nations. As the macro-level investigation indicates, any initiative to globally converge corporate law and governance should be carried out with caution because it may distort the delicate normative equilibrium represented in a given jurisdiction.

The Covid-19 pandemic highlights the pressing need to address common challenges faced by all countries and, in particular, provide special support to developing countries through international cooperation. Taxation, in particular Value Added Tax (VAT), is a key area for strengthening international cooperation because of its critical role in financing the Covid-19 crisis and supporting global recovery. This paper proposes the adoption of VAT treaties based on two considerations. First, there exist, in the interplay between states’ VAT laws, over-taxation and under-taxation that can be more effectively addressed by treaties than by unilateral state actions. Secondly, unlike income tax treaties, VAT treaties would distribute more benefits from cooperation to developing countries than to developed countries, leading to normatively attractive distributional consequences. The proposed model offers a new approach to taxing cross-border transactions under VAT and could form part of a coordinated response to a sustainable post-pandemic recovery.

This paper examines the role of apology as a vehicle for shame management in the aftermath of historical institutional abuse (HIA). It draws on extensive fieldwork in Ireland, North and South, including: archival research on public apologies; focus groups with members of the public and with victims; and semi-structured interviews with key stakeholders. It focuses on the complexities of apology in managing ‘shame’ and ‘self-blame’ for those constituencies affected by HIA – survivors, apologisers, institutions and wider society. Drawing on the notions of ‘shame’ and ‘shame management’, it proposes an interdependent model in order to better understand the function and meaning of apology in such contexts. In addressing the multi-layered relational dimensions of shame surrounding HIA, apology is presented as a potential means of invoking: (a) truth for victims; (b) accountability of offenders; (c) leadership of institutions; and (d) the re-imagination of national identity. The paper concludes by examining the additional performative aspects of shaming and the emotional expression of remorse in establishing proximity to historical wrongdoing.

This paper examines the different regimes of insurer liability under concurrent causation in English law and Chinese law. The analysis shows that neither English law nor Chinese law is satisfactory in terms of the insurer's liability in such cases. It is argued that only one proximate cause should be identified among multiple causes except in the circumstance where an excluded risk and an insured risk concurrently and independently cause a loss of the subject matter insured. Under this exception, the liability in apportionment approach might be an appropriate solution to the question of the insurer's liability under concurrent causation. This approach, however, is not suggested for concurrent causation where an uninsured risk is one of the proximate causes.

This paper advances a functional analysis of the UK constitution. It explores how the UK constitution discharges three minimum ‘constituting’, ‘legitimating’ and ‘limiting’ functions that citizens living in modern liberal democracies may legitimately expect all constitutions – irrespective of form – to perform. This functional enquiry breaks with dominant trends in the legal scholarship that remain focused on theorising the constitution's underlying political or legal nature or, likewise, identifying its ultimate source of authority. In addition to offering a richer descriptive account of constitutional practice, this paper identifies, normatively, an institutional responsibility for Parliament to discharge the UK constitution's three minimum functions. Recognising that institutional responsibility unlocks fresh insights into two constitutional conundrums: the legitimacy of judicial review and the status of ‘constitutional statutes’. At the same time, it also exposes deficiencies and tensions in relation to the quality of Parliament's institutional performance on matters of minimum constitutional functioning.

So-called ‘conversion therapy’ involves therapeutic attempts to change an individual's sexual orientation or gender identity. It is widely considered to be harmful to sexual minorities and there have been calls for it to be banned in the UK. In this paper, we examine whether victims of the practice could bring tort claims against ‘therapists’ for mental harm. Focusing on talking therapies, we assess tort doctrine in the law of negligence, the rule in Wilkinson v Downton, the Protection from Harassment Act 1997 and deceit. We conclude that while some forms of conversion therapy will be tortious, others will not and so this area of law may fail to assist many victims of the practice.