Darryn Jensen, ‘Hume’s Conventionalist Account of Property and the History of English Land Law’

12 May 2024 | Author: steve

ABSTRACT
The central theoretical assumption of English land law (and land law in related legal systems) that all rights in land are derivative of the Crown’s rights does not provide a full account of the origins of rights in land. ‘Liberal’ theories of the origin of property rights, which see property rights as something that emerged independently of state action, retain considerable explanatory value. The paper begins with a discussion of the principal features of David Hume’s account of the origins of property. The paper then engages with historical scholarship that shows that (1) it is a mistake to see the medieval English hierarchy of administration as implying a hierarchy of property rights ultimately derived from the Crown’s ‘title,’ and (2) the idea that communal medieval agricultural practices were super-imposed upon a pre-existing system of individual property rights is plausible.

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Darryn Jensen, Hume’s Conventionalist Account of Property and the History of English Land Law, Canadian Journal of Law and Jurisprudence, volume 36, issue 1, pp 147-170 (February 2023). Published online by Cambridge University Press: 24 August 2022.

Posted in Legal History, Property | Leave a Comment

A Symposium on Martijn Hesselink’s ‘Reconstituting the Code of Capital’: European Law Open (June 2022)

12 May 2024 | Author: steve

Reconstituting the Code of Capital: could a progressive European code of private law help us reduce inequality and regain democratic control? (Martijn W Hesselink)

Legal coding beyond capital? (Katharina Pistor)

Select Coding for the 99 per cent? Principles and the preconditions of capital minting (Candida Leone)

Progress towards what? On the need for an intersectional paradigm shift in European private law (Lyn KL Tjon Soei Len

The challenge of radical reform in pluralist democracies (Aditi Bagchi)

A societal private law (Anna Beckers)

How EU law politicises markets and creates spaces for progressive coding (Giacomo Tagiuri)

What kind of private law for what kind of Europe? A rejoinder to Martijn Hesselink’s ‘progressive code’ (Hans-W Micklitz)

Interpersonal justice as partial justice (Hugh Collins)

Pathways to interpersonal justice in European private law: top-down or bottom-up? (Olha O Cherednychenk

The paths to a progressive European code of private law (Muriel Fabre-Magnan)

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European Law Open – Volume 1 – Issue 2 – June 2022

Posted in European Private Law, General | Leave a Comment

Leandro Zanitelli, ‘Contract as a Transfer of Ownership and Public Justification: Two Models’

12 May 2024 | Author: steve

ABSTRACT
This article deals with Peter Benson’s claim that, unlike rival approaches such as promissory morality and the economic analysis of law, the theory of contract as transfer of ownership offers a public basis of justification for the coercive practice of contracts. The article points out that this claim can be understood in two ways, each corresponding to a model of public justification, namely, the avoidance model and the hermeneutic model. My ambition is to show that the avoidance model is beset by certain difficulties not encountered by the hermeneutic model, suggesting that the hermeneutic model is a more promising interpretation of the idea of public justification as applied to contracts.

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Leandro Martins Zanitelli, Contract as a Transfer of Ownership and Public Justification: Two Models, Ratio Juris, volume 35, issue 3, pages 310-326 (September 2022). First published: 5 September 2022.

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Chalaczkiewicz-Ladna, Sojka and Jerzmanowski, ‘To Whom Polish Directors Owe Their Duties – Between Shareholder Primacy and Political Agenda’

12 May 2024 | Author: steve

ABSTRACT
Poland is traditionally portrayed as a shareholder primacy jurisdiction – the legislation is silent on this, but it is confirmed by the Polish legal academia and the case law. Interestingly, the focus on shareholder value in Poland is not ‘transplanted’ from the common law jurisdictions, but it is rather derived from the liberal model of the economic transformation that started in 1989 and crucially, the traditionally concentrated share ownership structure. Furthermore, in Poland, just like in the other former Eastern Bloc countries, companies that are fully or partially state-owned are still influential. The interest of such companies is in practice defined in a specific way, as apart from the projects that pay off economically, they have often engaged in ventures that bring rather political than economic gains.

The aim of this article is to scrutinise the extent to which the perception of Poland as a shareholder primacy jurisdiction still stands; especially, in the context of recent sustainability-focused initiatives at the national and European level. This piece also suggests reform proposals as to how the current law on the corporate objective could be improved. This study concentrates on the public companies with shares listed on the Warsaw Stock Exchange, including the state-owned enterprises.

Chalaczkiewicz-Ladna, Katarzyna and Sojka, Tomasz and Jerzmanowski, Jedrzej, To Whom Polish Directors Owe Their Duties – Between Shareholder Primacy and Political Agenda (June 8, 2022). Forthcoming in European Business Law Review.

Posted in Business Organisation, European Private Law | Leave a Comment

Cowan and Hardy, ‘Charitable purposes and the shaping effects of money’

12 May 2024 | Author: steve

ABSTRACT
We address a curious omission from both the literature on the law of charity and socio-legal studies – the effect of apparently extraneous factors, such as politics and ideology, as well as the searching for money on the charitable purposes and identities of the public who are to benefit from the charity. This is a curious omission because even the law accepts that the idea of public benefit in charity law is a sociological concept, albeit one that has developed a technical meaning. We argue that approaching charitable purposes and public benefit as sociological concepts enables us to appreciate the tensions that those external factors produce as they re-shape those purposes and refashion the public who are to benefit. We refer to these factors under the rubric of the shaping effects of money. We use a case-study of the Canal and River Trust (CRT) to develop this argument. The trust was set up by the government as a charity to manage and control 2,000 miles of inland waterways in England and Wales. We draw on interviews with households who live on boats and ‘continuously cruise’ those boats on the canals to illustrate how their interests have been marginalised as the CRT has re-shaped itself as a well-being charity.

Dave Cowan and Barbara Hardy, Charitable purposes and the shaping effects of money, International Journal of Law in Context, volume 19, issue 2, pp 161-176 (June 2023). Published online by Cambridge University Press: 18 August 2022.

Posted in Equity and Trusts | Leave a Comment

Alban Guyomarc’h, ‘Property on space resources: The search for a terminology’

12 May 2024 | Author: steve

ABSTRACT
By the end of one or two decades, several competing lunar bases will be installed or in the process of being installed, most probably located around the Moon’s South Pole and its water resources. By the end of three decades, companies will probably be extracting resources from the moon with a commercial and lucrative objective. But already on Earth, some states are taking the lead and intervening in the regulation of this future exploitation. Of these, the United States and Luxembourg admitted the existence of property rights over space resources through national laws in 2015 and 2017, in each case assuming the compliance of the resulting provisions with existing international law and more particularly with Article II of the Outer Space Treaty, dedicated to non-appropriation …

Alban Guyomarc’h, Property on space resources: The search for a terminology, Journal of Law, Market and Innovation, volume 2 no 2 (2023).

Posted in Land use and Environment, Property | Leave a Comment

Maria Teresa Bartalena, ‘Reasonable royalty damages across different countries and through a law and economics lens’

12 May 2024 | Author: steve

ABSTRACT
In most legal systems, a reasonable royalty represents the minimum compensation for patent infringement litigation, and it is undoubtedly the most used among the remedies at the courts’ disposal. Therefore, its calculation is crucial in the intellectual property field and, more specifically, within the function of liability in this context to incentivise investments in R&D and promote innovation. Nonetheless, some differences can be found between the methods used to calculate reasonable royalty awards in two largely developed countries, ie in the US, where judges are deemed to consider only the parties’ ex ante information and in Germany, where ex post considerations are involved in calculation. This article intends to analyse how these different approaches can affect investments in the field of technology and innovation. In this process, German and US case law will be primarily investigated, but some references will also be taken from Chinese experience, a legal system for some aspects similar to civil law ones and in which patent infringement disputes are solved by specialised judges, such as in Germany, whose set of remedies, nonetheless, has been recently modified to include a measure that resembles much the treble or punitive damages of the US Code.

Maria Teresa Bartalena, Reasonable royalty damages across different countries and through a law and economics lens, Journal of Law, Market and Innovation, volume 2 no 3 (2023).

Posted in Intellectual Property, Law and Economics, Remedies and Procedure | Leave a Comment

Elena Napolitano, ‘The New Frontiers of Trust: Bitcoins and Cryptocurrencies’

12 May 2024 | Author: steve

ABSTRACT
The opportunity offered by digital innovation to create new categories of goods or, at least, to transform what was previously represented by objects into something virtual has inevitably raised the issue of the legal qualification of digital assets, particularly cryptocurrencies. This classification requires a careful delimitation of the phenomenon. First, because not all ‘digital representations of value’ perform the same function and, most importantly, because their legal nature should be harmonised with the need to guarantee exclusive and absolute use by their owner and therefore, with tools that protect the individual’s ownership rights. One fundamental effect of digital assets being qualified as property is that they can be the object of trust. Moreover, it is precisely in this context that, owing to changing economic and social demands, the need to rethink the traditional categories of civil law becomes even more acute.

Elena Napolitano, The New Frontiers of Trust: Bitcoins and Cryptocurrencies, Journal of Law, Market and Innovation, volume 3 no 1 (2024).

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Carabellese and Giustina, ‘The Uber case and gig-individuals against the backdrop of the gig-economy: Dilemmas between labour law and techno-law’

12 May 2024 | Author: steve

ABSTRACT
The ‘Uber workers’ and, more in general, individuals deployed in the platforms, overall considered the ‘gig economy’, have already been the subject matter of multifarious dicta in Italy. However, not only are these court decisions contradictory with each other, but also they are quite nebulous in their underpinning reasoning. Furthermore, there are a few inconsistencies with entrenched principles of the Italian legal system, particularly in the area of labour law. By contract, across the ‘Channel’, the Uber workers have been ‘dissected’, from a legal perspective, in a very recent decision of the UK Supreme Court. On such a background, it is becoming vital to ascertain the legal characterisation of ‘gig individuals’, also in the light of a prospective EU legal framework where this new category could be legislated. Bearing this in mind, seemingly the imminent EU regulation will engender a challenging, yet stimulating, comparative analysis with the common law (and its traditional ‘tests’ of the contract of employment), where it still arduous to envisage any legislation in this micro-area of labour law.

Pierre de Gioia Carabellese and Camilla Della Giustina, The Uber case and gig-individuals against the backdrop of the gig-economy: Dilemmas between labour law and techno-law, Journal of Law, Market and Innovation volume 1 no 2 (2022).

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Poncibò, Gangemi and Ravot, ‘Blockchain Justice: Exploring Decentralising Dispute Resolution Across Borders’

12 May 2024 | Author: steve

ABSTRACT
It is well known that the raison d’etre of Distributed Ledger Technology (DLT) is to enable peer-to-peer transactions that do not require Trusted Third Parties (TTP). Commercial security is a major concern for users in this new era: intermediaries are increasingly seen as security holes and removed from protocols as a result of a growing desire to maintain control over transactions. The need for independence from TTPs has evolved into a counterculture that moves blockchainers away from central authority, the courts and the world as we know it. To date, all existing online dispute resolution (ODR) processes in DLT and related tools such as smart contracts do not reflect the vision of blockchain as a counterculture. They exclusively use adjudicative methods involving one or more TTPs deciding via on-chain incentivised voting systems. This paper aims to discuss why non-adjudicative methods shall have a cultural priority over adjudicative ones, showing why they might be preferred by blockchainers due to risk management and distrust concerns. Furthermore, we introduce a prototype of a non-adjudicative ODR model (‘Aspera’) in which users can have total control over the outcome of the dispute in a TTP free environment.

Cristina Poncibò, Andrea Gangemi and Giulio Stefano Ravot, Blockchain Justice: Exploring Decentralising Dispute Resolution Across Borders, Journal of Law, Market and Innovation volume 3 no 1 (2024).

Posted in Remedies and Procedure | Leave a Comment