• Jaloud v Netherlands and Hassan v United Kingdom: time for a principled approach in the application of the ECHR to military action abroad

      Borelli, Silvia (2015-05)
      The aim of the present piece is not to undertake an examination of which of international human rights law (IHRL) and international humanitarian law (IHL) is ‘better’ or more appropriate to regulate the conduct of States in situations of armed conflict. Advocates of IHRL argue that it provides heightened protection for individuals, and that, by its own terms, it applies to, and is perfectly equipped to deal with situations of exception, including armed conflicts.[1] On the other hand, supporters of IHL focus on the need not to place unnecessary fetters upon the freedom of States to pursue their military objectives in situations of armed conflict, and argue that IHL provides an adequate level of protection, whilst being more pragmatic, better suited to the specificities of armed conflict and more likely to be observed by the parties to the conflict.[2] Insofar as they prioritise different values, proponents of the two opposing camps to a large extent talk past each other and the debate is therefore necessarily somewhat sterile.
    • The law of international responsibility

      Crawford, James; Pellet, Alain; Olleson, Simon (Oxford University Press, 2010)
    • The French prohibition on veiling in public places: rights evolution or violation?

      Hill, Ryan W.; University of Essex (Oxford University Press, 2012-12-14)
      In 2011, France introduced a prohibition on wearing face-concealing garments in all public places. Particularly captured by the prohibition was the small number of Muslim women veiling in France. The French government’s rationales for the prohibition include the protection of public social order and equality. Including all public places rather than certain public institutions shifts the focus of an earlier similar prohibition. This article suggests that this shift may be symptomatic of a disturbing polemic that sees freedom understood in a narrow sense that is largely antagonistic to religion and difference. The article provides evidence and argument to support this suggestion. It proposes that any related petition brought to a human rights court must be on the lookout for this polemic which, if influencing the prohibition, would lead to the pursuit of an aim that is dubious in terms of human rights, specifically the right to freedom of religion.
    • The EU's new victims' rights directive: can minimum harmonization work for a concept like vulnerability?

      Lang, Richard (Nottingham Trent University, 2013)
      This is a conceptual piece. It is also, to use the latest pedagogical jargon, a reflective piece. It arose from a project which the author undertook with the National Centre for Cyberstalking Research at the University of Bedfordshire in 2012, lobbying for an explicit mention of cyberstalking in what was then the draft Victims’ Rights Directive.1
    • The European private company: an opportunity from an economic crisis?

      Lewis, Rhidian; Buzdrev, Aleksandar; Mortimer, Thomas Richard; Anglia Ruskin University; Canterbury Christchuch University (Center for Promoting Ideas, 2013-04)
      The European Commission is undertaking a legal modernisation initiative in order to facilitate small and medium-sized enterprises in unlocking their full potential as active players on the Single Market, being also the backbone of the Union’s economy. The flagship of this initiative is going to be a novel European legal form - the European Private Company (EPC) or as it is known the Societas Privata Europea (SPE). Designed as an instrument to do business in the Single Market the SPE aims to be transparent, flexible and offer a strong label everywhere. As with the Societas Europea, there are certain gaps in the SPE Statute, which prompt for the application of national laws. This could result in 27 different SPE forms in the EU, which leads to financial implications regarding the formation and day-to-day operations of the company. A detailed exploration of the corporate finance issues is followed by plausible solutions based on corporate governance theories.
    • Internationally wrongful acts in the domestic courts: the contribution of domestic courts to the development of customary international law relating to the engagement of international responsibility

      Olleson, Simon (Cambridge University Press, 2013-07-31)
      The rules of customary international law governing when a state or international organization will be held to have committed an internationally wrongful act, thereby engaging its international responsibility, are relatively well settled in international practice and jurisprudence. A key point of reference in this regard is the work of the International Law Commission on State Responsibility and Responsibility of International Organizations. The present paper examines relevant practice of domestic courts from a variety of jurisdictions which have relied upon the ILC's work, and discusses the extent to which domestic courts may make a contribution to the further development of the rules relating to engagement of responsibility. It concludes that, due to the operation of rules of, inter alia, immunity and non-justiciability, the principal instance in which domestic courts may actually apply the rules of international law is where it is the responsibility of the forum state which is in issue.
    • In football we trust?

      Kelly, Kevin; Lewis, Rhidian; Mortimer, Thomas Richard; Anglia Ruskin University; NCC Education (Center for Promoting Ideas, 2012-04)
      There is a growing concern amongst football supporters, government and the wider community about the increasing level of financial and operational difficulties facing many of today’s professional football clubs. The focus of much of this concern currently centers on the many of the clubs owners and where their interests really lie. Clubs that were once the cornerstones of local communities run with sporting success as the primary motivator are seemingly becoming the ‘playthings’ of wealthy individuals with no links to the community or the clubs history. This paper details a history of club ownership in the Premier League through to present day. It then examines current regulation in the football industry and focuses on the applicability of Section 172 of the Companies Act 2006. The paper concludes by detailing alternative forms of ownership as a possible solution to one of footballs most enduring corporate governance challenges.
    • Corporate governance in Poland

      Mortimer, Thomas Richard; Anglia Ruskin University (Virtus Interpress, 2009)
      This article considers the traditional approach to the 'state' Models of corporate governance, namely shareholder Model and stakeholder Model. It then considers the extent to which developments in a recent accession EU country, Poland, reflects either of these Models or adopts a hybrid approach. It then offers proposals for the future development of corporate governance within Poland.
    • Applying principles of biological evolution to legal development: an exploration

      Lewis, Rhidian; Mortimer, Thomas Richard; Anglia Ruskin University (Center for Promoting Ideas, 2012)
      The application of the biological principle of evolution has found a number of contemporary applications within the analysis of business activities. The application of these scientific principles is considered appropriate in a further application within the development of legal principles particularly in the context of the ongoing development of the European Union as a significant business environment. It is proposed within this paper that direct parallels may be drawn between the evolutionary principle of biological speciation and the emergence of legal principles within separate national boundaries. Contemporary principles of biological evolution are also considered in respect of the development of primary legislation which act on the development of law in a punctuated manner. These principles are examined in respect of the continued debates surrounding company law within the European Union, in particular the persistence of national legislation dealing with corporate mobility. In examining the appropriateness of applying biological evolution to the development of EU company law consideration is given to the development and functioning of the Societas Europaea (European Company) in respect of its legal environment.
    • Anti-suit injunctions and arbitration: parasitic or free standing?

      Seriki, Hakeem (Sweet and Maxwell, 2013)
      Where a party amenable to the jurisdiction of the English courts commences proceedings in a foreign jurisdiction in breach of an exclusive jurisdiction clause or an arbitration clause, the English courts have always shown their willingness to injunct such a party. While such injunctions are seen as controversial, nevertheless they have been a useful tool at the disposal of the English courts. Over the years, English courts have demonstrated their willingness to grant anti-suit injunctions under s.37 of the Senior Courts Act 1981 (SCA) 1 so as to uphold the sanctity of arbitration agreements. In February 2009, the European Court of Justice (ECJ) delivered its much-anticipated decision in Allianz SPA v West Tankers Inc (The Front Comor) 2 where it ruled that the English courts could no longer grant anti-suit injunctions in relation to arbitration in EU cases.3 In 2010, the European Parliament’s Committee on Legal Affairs prepared a report4 on the European Commission’s proposal to amend the Brussels Regulation. The Report opposes the deletion of the arbitration exclusion in art.1(2)(d) of the Brussels Regulation5 and suggests the clarification of the point that judicial proceedings ruling on the validity of arbitral competence are excluded from the scope of the Brussels Regulation.6 The Report further suggests that art.31 of the Regulation should be revised so as to provide that no judgment should be recognised in Member States if the court concerned disregarded an arbitration rule of the State in which enforcement is sought unless the judgment of that Member State would produce the same result as if the law of arbitration of the Member State in which enforcement is sought had been applied.7
    • Anti-arbitration injunctions and the English courts: judicial interference or judicial protection?

      Seriki, Hakeem (Sweet and Maxwell, 2013)
      In the course of arbitral proceedings (whether before or during proceedings) a party may need to seek injunctive relief. The use of injunctive relief in international commercial arbitration is nothing new and must not be seen as incompatible with the underlining principles of commercial arbitration such as party autonomy, separability and kompetenz-kompetenz. Many institutional rules1 and arbitration legislation2 allow parties to apply to an appropriate court for injunctive relief. Indeed, injunctions can be very crucial to the outcome of a claim given that there are situations where the tribunal may not yet be constituted or lacks the power to grant the relief sought. For example, s.44 of the Arbitration Act 1996 (the Act) is seen as a supporting measure by which the courts can assist arbitral proceedings by granting an interim injunction so as to preserve evidence and assets in appropriate situations.3 Hence, arbitral proceedings can be secured by prompt early injunctive relief of the type that can only be granted by the courts.
    • A Critique of The Uganda Mental Health Treatment Act, 1964

      Nyombi, Chrispas; Kibandama, Alexander; Kaddu, Ronald; University of Essex; High Court of the Republic of Uganda (University of Memphis, 2014)
      The scarcity of research into the deplorable state of Uganda’s mental health laws is a grave lacuna that needs urgent redress. Firm in mind that academic scholarship is a collaborative enterprise with deep roots in constructive criticism, this paper aims to fill this gap. This paper provides a circumspect examination of mental health laws in Uganda. The paper reviews the Mental Health Treatment Act 1964 and highlights the main areas that need reform. It keeps the jurisprudential analysis of applicable international treaties and conventions such as the United Nations Convention on Rights of Persons with Disabilities to a minimum. This paper will inform legal, academic and healthcare circles on the current state of mental health law in Uganda.
    • A critique of shareholder primacy under UK takeover law and the continued imposition of the Board Neutrality Rule

      Nyombi, Chrispas; University of Essex (Emerald, 2015)
      Purpose – The purpose of this paper is to determine whether the Board Neutrality Rule and the primacy afforded to shareholders during takeovers is justified under common law and policy. Design/methodology/approach – The paper provides a detailed assessment of the role play by the board neutrality rule and whether this is supported by takeover law and Company law. A review of case law and statutes is provided. The paper is largely analytical. Findings – The paper finds little justification for the continued imposition of the Board Neutrality Rule. Originality/value – The paper adds to the growing body of research literature which has analysed the role played by the Board Neutrality Rule during takeovers.
    • The gradual erosion of the ultra vires doctrine in English company law

      Nyombi, Chrispas; University of Essex (Emerald, 2014-09-02)
      Purpose – The purpose of this paper is to discuss the doctrine of ultra vires and its development over time, which is claimed to be one of gradual erosion. Design/methodology/approach – This paper discusses the doctrine of ultra vires and its development overtime, which is claimed to be one of gradual erosion. Findings – It shows how the abolition of the objects clause has signalled the end of ultra vires. Today, it remains nothing more than a ghost, but one which continues to haunt management. Originality/value – It builds on existing research literature.
    • Lifting the veil of incorporation under common law and statute

      Nyombi, Chrispas; University of Essex (Emerald, 2014-02-04)
      Purpose – The paper examines case law and statutory provisions related to lifting the corporate veil. The aim of the paper is to explore recent case law in order to determine whether courts have moved away from an overly restrictive approach when dealing with cases relating to the corporate personality. To offer a full account of the exceptions to the corporate personality doctrine, this paper also examines cases where the veil of incorporation is lifted due to a breach of a statutory provision. Design/methodology/approach – The paper reviews recent case law and statutory provisions relating to lifting the corporate veil. The paper critically reviews the exceptions to the corporate personality doctrine which amount to lifting the corporate veil. Findings – The paper finds that courts are more willing to lift the corporate veil compared to before. They have moved away from the restrictive approach and this is demonstrated by the tendency to find new exceptions to the corporate personality doctrine such as the interests of justice argument or lifting the veil in tort cases. Originality/value – The paper offers an up-to-date assessment of the exceptions to the corporate personality doctrine and highlights the growing tendency to finding new ways of lifting the corporate veil.
    • The motivations behind the Uganda Insolvency Act 2011

      Nyombi, Chrispas; Kibandama, Alexander; Bakibinga, David James; University of Bedfordshire; Makerere University (Sweet and Maxwell, 2014)
      The Insolvency Act 2011 has altered insolvency law in Uganda to varying degrees. These reforms have brought insolvency law into close contact with a number of legal areas such as company law and with a range of national stakeholders, in the process making the study of insolvency law a very interesting endeavour. This article provides a comprehensive analysis of the motivations behind corporate insolvency law reform in Uganda.
    • Corporate personality: the unjust foundation of English company law

      Nyombi, Chrispas; Bakibinga, David James; University of Bedfordshire; Makerere University (Commerce Clearing House, Inc, 2014)
      The article discusses the doctrine of corporate personality and the reportedly unjust foundation of English company law as of 2014, focusing on the British House of Lords' ruling in the nineteenth century legal case Salomon v. Salomon & Co. Ltd. which deals with liquidators' rights and Great Britain's Joint Stock Companies Act. A separate legal entity doctrine is mentioned, along with British case law and various judgments by English courts. Great Britain's Parliament is also examined.
    • Italian torpedoes in the shadow of the recast Brussels Regulation 2012

      Nyombi, Chrispas; Mortimer, Tom; Lewis, Rhidian; University of Bedfordshire (Sweet and Maxwell, 2014)
      On 10 January 2015, a new Recast Brussels Regulation came force bringing a number of important reforms designed to improve and harmonise rules on intra-European commercial litigation. This paper focuses on the reform to the lis pendens rule under Article 31 and the extent to which it has resolved the problems posed by the so-called Italian Torpedoes. Tactical litigation has been at the centre of the Brussels regime since its founding despite attempts by national courts to curb this practice in support of choice of court agreements. Despite the reform, we find potential for tactical litigation through the related action route.
    • Shareholder primacy and stakeholders’ interests in the aftermath of a takeover: a review of empirical evidence

      Nyombi, Chrispas; Mortimer, Tom; Lewis, Rhidian; Zouridakis, Georgios; University of Bedfordshire; University of Essex (Sweet and Maxwell, 2015-03)
      Since the takeover of Cadbury Plc in 2010, there has been increased academic attention on investor short-termism during takeovers and whether the continued imposition of the board neutrality rule has made it easy to acquire UK companies. This paper contributes to this growing body of research by examining existing empirical studies to determine whether concerns over short-termism and the continued imposition of the board neutrality rule are justified.
    • Principles of company law in Uganda

      Nyombi, Chrispas; Kibandama, Alexander (Law Africa, 2014)
      This is the leading text available on company law in Uganda, providing clarity on what is an increasingly complex subject. Its lucid analysis and accessible style being of great assistance to all those involved in this area. Students as well as practitioners can turn to this text secure in the knowledge that it covers all the key areas of company law. The book fully incorporates the latest developments including the fundamental changes brought about by the Companies Act 2012, the Insolvency Act 2011 and the Partnership Act 2010.