This paper aims to unravel two connected errors in the current critical position on companies. Since the financial crisis, there have been a growing number of voices in the academic community raised against the shareholder value driven corporate sector. The often conservative and highly doctrinal voices of English company lawyers have become in parts more radicalised and have found common research ground with varied academic disciplines and with company lawyers in other jurisdictions more accustomed to critical approaches. New ideas have been forged; old ideas have been rediscovered and re-examined. In the emerging networks, the neoliberal domination of the study of companies is being substantially challenged. As exciting as this is, I am concerned that critical scholars have cohered around a core claim about company law which is erroneous. Furthermore, they have largely assumed that the current economy can sustain a social agenda as well as creating profit. This, I argue, hugely underestimates entrenched problems in the economy. In unravelling these issues my aim is to reorientate challenges to shareholder primacy and to the claims of capital more generally.

Terms such as sanctity and inviolability have failed to provide a legally coherent or ethically sound principle upon which to determine the scope of the intrinsic value of life against extrinsic, quality-of-life considerations in a medical context. In their recent work, Margaret Brazier and Suzanne Ost introduce a new term, reverence for life, which they suggest may be more appropriate when attempting to navigate the murky waters of the meaning of life and the value that should be attached to it. They suggest that reverence should be utilised as an alternative that better reflects the nuances and the realities of the dilemma. This paper explores the existing difficulties before considering how the principle of reverence might provide a principled compromise over when the presumption in favour of preserving life should be rebutted.

This paper considers the highly discretionary equitable redistribution scheme governing ancillary relief in Ireland pursuant to the Family Law (Divorce) Act 1996. The paper begins by drawing on the most up-to-data empirical data highlighting the principal difficulties inherent in the Irish ancillary relief system as currently applied and placing the spotlight firmly on the need for reform. It then considers the constitutional parameters that limit any change to the ancillary relief system applied before presenting a detailed proposal for reform. It concludes that although legislative change may be politically challenging, the commonly cited constitutional impediments to reform do not preclude the adoption of an alternative ancillary relief scheme. Instead, the paper argues that the adoption of a more rule-oriented, ‘pillared’, approach to ancillary relief provision may better resolve the challenges currently faced and ought to be afforded serious consideration in Ireland.

The dreadful disease of mesothelioma, caused by exposure to asbestos, has a number of features that pose almost intractable problems for tort law and liability insurance, notably the time lag of some 35 years between exposure and injury, and the accepted current impossibility of science proving exactly which exposure has given rise to the disease. The Supreme Court has addressed tort and insurance issues on no fewer than six occasions, most recently in Zurich Insurance PLC UK Branch v International Energy Group Ltd (IEG), a case in which a specially convened seven-judge panel split 4:3 on the correct analysis of the insurance position. This paper analyses the reasoning and its implications. As will be seen, IEG is unlikely to be the end of the story. Most of the cases have involved exposure of employees to asbestos, and discussion is directed primarily to that context. A brief outline of the authorities will suffice to set the background to IEG.

Striking the right balance between the protection of competition law and intellectual property rights is of utmost importance, especially in the pharmaceutical sector; affordable generic drugs are as important as new innovative drugs. Pay-for-delay settlements take place at exactly this intersection. They end patent infringement litigation but, at the same time, delay entry of generic drugs by means of a substantial payment from the brand company to the generic. Whereas the US Supreme Court opted for a rule of reason approach that requires an analysis of the potential anticompetitive effects, the European Commission regarded such settlements as restriction by object, finding an infringement without the need for an effects-based analysis. This approach is criticised and a novel ‘structured effects-based’ approach is proposed allowing the authority to effectively scrutinise such settlements while striking the right balance in order to protect the innovative process and the exercise of intellectual property rights.

This paper addresses how the UNCITRAL Model Law on Cross-Border Insolvency has been implemented and interpreted in the US and the UK. The Model Law has attained a measure of international acceptance and is intended to achieve greater efficiencies in the administration of insolvency cases with transnational dimensions. But different manners of implementation in different countries and differing interpretations may hinder the prospects for harmonisation and coordination of laws. The paper will address in particular whether US interpretations differ from those in the UK and whether the US decisions are so infused with ‘American exceptionalism’ that they cannot be relied upon as sure guides in other countries.

This paper argues that shadow directors, as defined in English law, ought to owe the full range of directors' duties, both fiduciary and non-fiduciary, enacted in the Companies Act 2006 (CA 2006), ss 171–177, to the relevant company under their influence. Following the enactment of the recent Small Business, Enterprise and Employment Act (SBEEA) 2015, these general duties are likely to apply to shadow directors, although there is still a case to be made as to why shadow directors should owe fiduciary duties to the relevant company. It is argued here that such a relationship is fiduciary in nature, but the current approach deployed in the English courts, based upon the application of Finn's originally formulated ‘undertaking’ test alone, is inadequate. Given these inadequacies, it is proposed that the Canadian ‘power and discretion’ test be deployed alongside the ‘undertaking’ test, in order to provide a far more comprehensive justification for the application of fiduciary obligations to shadow directors. This position is supported by establishing a theoretical basis for the ‘power and discretion’ test, via Paul Miller's ‘fiduciary powers theory’, as well as considering the application of such a test to shadow directors.

Recent high-profile convictions have called attention to the common law offence of preventing a lawful and decent burial. This offence, which can only be found in its modern incarnation since 1974, is being used with increasing frequency. We argue that there is, however, little justification (or need) for criminalising the prevention of burial per se. The historical context of the need to regulate the disposal of corpses is no longer relevant. Moreover, the ambit of the offence is such that it cannot be argued to be targeting acts of intentional disrespect to deceased bodies. We suggest that acts which intentionally impede the administration of justice are rightly criminal, but other offences already deal more appropriately with these. We conclude that the contemporary use of the offence of preventing a lawful and decent burial contributes to an unnecessary proliferation of overlapping offences, providing prosecutors and juries with a way to assign liability to a person whom they suspect, but cannot prove, is guilty of more serious charges.

The introduction of the Green Development Mechanism (GDM) as a governance tool for biodiversity conservation is presented as a legal transplant, originating in the Clean Development Mechanism from the climate regime. The case provides an instance of a transplanted legal idea not from one jurisdiction to another but between two transnational regimes. The legal transplantation approach highlights the motives for replication and factors that hinder it. In this context, the discussion reveals that while the GDM was constructed for effectiveness concerns, it was presented as a transplant in order to import to the newly established model legitimacy from the original one. Yet, a uniform acceptance of the transplant was prevented because of divergent evaluations of the original model. The existence of several, not one, ideologies and perceptions explains why transplanting is a highly unpredictable strategy for fostering acceptance of a legal idea in the transnational space, and ultimately for its implementation. Following the recognition that legitimacy cannot be inherited, the initiative employed a mixed strategy to ensure its acceptance, based on the democratic principles and effectiveness that are expected from non-state authorities, as well as the consensus-based, treaty-grounded ‘rules of the game’ of state actors. The case highlights how the universal endorsement of all states, and the appearance of alignment with international norms and intergovernmental institutions, remain significant goals of transnational initiatives.