VOLUME XIII ISSUE I (February 2023)
Leigha Crout (2023) Against Constitutionalism: A Review. The King’s Student Law Review, Vol XIII, Issue I, pp1-7
Book review: Crout reviews Marin Loughlin’s ‘Against Constitutionalism’ (Harvard University Press 2022).
Alexis Loh and Gregory Chan (2023) Is Justice Blind to Compassion? A Modern Defence of Schopenhauer in Legal Reasoning. The King’s Student Law Review, Vol XIII, Issue I, pp8-28
“Just”, “impartial”, “fair”, “unbiased” – these words are often used to describe the “ideal” judiciary, one which interprets and enforces the law without feeling. Indeed, traditional motifs of Lady Justice portray her blindfolded, wilfully ignorant of individuals’ circumstances. Yet, what is often overlooked is that Lady Justice is fundamentally human. In that regard, this notion of humanity – especially in terms of the human propensity for compassion – seems to be oversimplified or ignored within the judiciary, and largely taken for granted despite its significant roles in deciding cases. On that note, we reflect on the works of Arthur Schopenhauer and his writings on the “Will”, the “Representation” and “Compassion”. In doing so, we present a modern defence of Schopenhauer’s works against the backdrop of legal reasoning and judicial decision-making and argue that the subjective Will of the judiciary cannot be removed from the objective decisions they make. We then propose that Compassion should be the core driving force behind one’s Will to dispense appropriate justice. This would allow for a more nuanced, and more humane judiciary.
Paul Abraham (2023) Admissibility of Illegally Obtained Evidence in International Arbitration: A Conduct Based Analysis. The King’s Student Law Review, Vol XIII, Issue I, pp29-47
This article deals with the admissibility of illegally obtained evidence in arbitration. Though there exist vast jurisprudence on the concept of illegally obtained evidence in the domestic arena, there is very little arbitral jurisprudence that deals with the question of how international arbitral tribunals must treat illegally obtained evidence. Given that arbitral tribunals are granted wide discretion to decide on the admissibility of evidence, and in light of the absence of accurate guidelines in the arbitral rules, it becomes essential to determine the extent to which the arbitral tribunal could admit illegally obtained evidence, and the criteria to be used by arbitral tribunal while determining such admissibility. This paper attempts to determine and analyse the framework that must be used by international tribunals while deciding on the admissibility of illegally obtained evidence in international arbitration. It explores the approaches of the various international arbitral tribunals in order to understand the important factors that could influence the admissibility of illegally obtained evidence and posits that the conduct of the party in obtaining the illegal evidence could be the most crucial factor, while developing a framework. Though there has been a view that the conduct of the party to the arbitration proceedings should not be a guiding factor for the admissibility of illegally obtained evidence, the fact that every tribunal has refused to admit illegally obtained evidence based on the conduct of the party to the arbitration proves to be one major reason why conduct should be a yardstick. Based on the premise that the conduct of the party in obtaining the illegal evidence is the key factor in determining admissibility, the author finally lays down a framework for determining the admissibility of illegally obtained evidence in international arbitration.
Antonia Karamanli (2023) Climate Change and the Law of. the Sea: Standing the Test of Time. The King’s Student Law Review, Vol XIII, Issue I, pp48-65
This article discusses the inadequacy of The United Nations Convention on the Law of the Sea (UNCLOS) in addressing issues arising from climate change. Although adopting a broad interpretation of UNCLOS articles could be an effective measure temporarily, this article argues that wider interpretation may seem difficult to follow given the complexity of climate change. Considering the rise in sea levels and fragile marine biodiversity, it is evident that universal and clear rules are needed, as the complexity that would arise from broad interpretation of UNCLOS works against the international community. The article concludes that amendments are required in order to make the current regime effective. An example of this is the amendment of the law concerning the submerged islands that could lose their statehood and the right to an Exclusive Economic Zone (EEZ) or continental shelf as a result of the rise in sea levels. Moreover, amendments are needed in order for UNCLOS to facilitate the Marine Protected Areas (MPAs), a significant measure for conservation of marine biodiversity that is currently incompatible with UNCLOS. Alternatively, the article suggests the development of new standards and rules within a unified framework where the emerging threats that arise from climate change are in the centre of the regime.