VOLUME XI ISSUE I (2020)

Editorial

Welcome to the first issue of King’s Student Law Review for the academic year 2020/2021. Covid-19 has not prevented the submission of a broad range of excellent papers, and we hope that those we have selected for publication will attract a broad range of readership.

We publish in strange and interesting times. A pandemic that only epidemiologists and small, ignored, government departments had imagined 12 months ago, has changed the world. The UK’s longest-serving Supreme Court justice, Lord Kerr, today called it a ‘dystopian nightmare.’  In this dystopian nightmare the clarity of thinking and objectivity of positioning of the law has never been more important. Even in the UK, usually considered one of the world’s more open democracies, the government has sought to position the Supreme Court’s intervention regarding the exercise of powers as unjustified interference (R (on the application of Miller) (Appellant) v The Prime Minister (Respondent) Cherry and others (Respondents) v Advocate General for Scotland (Appellant) (Scotland) [2019] UKSC 41.) It has recently created a ‘panel of experts’ to examine how judicial review challenges are dealt with by the courts, saying it wants to balance the right of citizens to question government policy in court against the executive’s ability to govern effectively. Lord Kerr reminded us, ‘if we are operating a healthy democracy, what the judiciary provides is a vouching or checking mechanism for the validity [of] laws that Parliament has enacted or the appropriate international treaties to which we have subscribed … The last thing we want is for government to have access to unbridled power.’

There are five articles in this edition of the Journal. Lord Kerr’s interview today is pertinent to two of them. In May 2020 he delivered the unanimous ruling of the Supreme Court, overturning the legality of interning Gerry Adams, the former Sinn Féin leader, nearly 50 years ago (R v Adams (Appellant) (Northern Ireland) [2020] UKSC 19). The judgement was highly controversial, with Lord Sumption, who served on the Supreme Court until 2018, critical of its reasoning and its predicted consequences. Jack Bickerton addresses this controversial area when he discusses the tension between human rights legislation and the use of preventive detention as a counterterrorism mechanism. He suggests that this approach is suggestive of a war model of legislation rather than of a criminal model. He argues that this leads to interference with individual rights to liberty, fair trial, and due process, and asks when, if ever, this approach can meet the tests of reasonableness and proportionality which could justify such interference.

When asked (by The Guardian) to choose which had been his most important case, Lord Kerr opted for the 2018 legal challenge brought by the Northern Ireland Human Rights Commission (In the matter of an application by the Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland) Reference by the Court of Appeal in Northern Ireland pursuant to Paragraph 33 of Schedule 10 to the Northern Ireland Act 1998 (Abortion) (Northern Ireland) [2018] UKSC 27), which ultimately led to reform of Northern Ireland’s abortion laws. Emily Ottley reflects on the continued criminalisation of abortion in England and Wales, suggesting that the law is long overdue for reform. She argues for abortion on request in early pregnancy, that request being made in the context of the patient-centred, ‘best interests’ approach of medical ethics rather than in the context of the criminal law, by considering both the incompatibility of the current law with human rights obligations and the modern prioritisation of respect for autonomy in both medical ethics and law.

As we go to press further stories are emerging from Xinjiang regarding the brutal suppression of the Uyghur people, whilst in Cox’s Bazar, Bangladesh, over a million Rohingya wait to see whether the International Criminal Court can address the wrongs they have experienced. Malwina Wojcik’s discussion of a European Court case considering Holocaust denial is as pertinent today as it ever was. It should challenge us all to consider the role of law in the understanding of and reflection on history, and on how we understand and value truth. Her article analyses the judgment of the European Court of Human Rights in Perinçek v Switzerland, which considered whether criminalising denial of the Armenian genocide conflicted with the right to free speech enshrined in Article 10 of the Convention. She examines the judgement in the light of the key arguments for distinct legal treatment of Holocaust denial, suggesting that in affirming different legal treatment of Holocaust denial and denial of other genocides the Strasbourg Court has created a problematic hierarchy of memories.

The rise of virtual currencies, the incomprehensibility, to most of us, of exactly what they are and what guarantee of value ‘lies beneath’ them challenges the ingenuity of the law. The systems on which governments have relied to understand and regulate the movement of money have traditionally been based on the nature of conventional currencies as issued by a monetary authority, and underpinned by something ‘real.’ Virtual currencies are not controlled or regulated through traditional means, and their value is determined by the supply and demand of their market. Ilias Ioannou writes on the law’s response to the tension between their extraordinary potential to function as a means for good, and their equally extraordinary utility for facilitating the intentions of illicit actors. After considering the regulation of virtual currencies in the European Legal Area, he suggests a more comprehensive legal response is needed, one which involves embedding Virtual Currencies into the financial system by redirecting regulation towards the uniqueness of their underlying technology.

Finally, in an article pertinent to the values of fairness, autonomy and choice and how they are balanced against the group ‘good,’ Adyasha Samal examines the Group of Companies Doctrine which prescribes a test to determine whether a non-signatory is bound by an arbitration agreement whose scope is extended to them when this is necessary  (or even the only way) in order to resolve the dispute. The Doctrine addresses the (presumed) intention of the parties to arbitrate. She considers the Doctrine’s requirements – for a tight group structure, involvement of the third party in the conclusion of the contract, and common intention of all parties to bind the third party to the agreement – arguing that this focus on behaviour and written agreement functions to uphold arbitration’s core tenet of consent. These considerations of fairness and good faith when ‘deeming consent’, both general principles of contract law in many civil law jurisdictions, are pertinent to consent to many other areas of law, including the criminal law and medical law and the article stands as evidence not only of scholarship on one area, but of the fact that broad reading across many areas can cross-pollinate legal thinking, only to its benefit.

We hope you enjoy Volume XI, issue I.

Dr Mary Lowth, Editor-in-Chief, Kings Student Law Review.

Table of contents

KSLR Vol XI  Issue I

Contents

Jack Bickerton: The War on Terror as a War on Human Rights: Should preventive detention be used as a counterterrorism mechanism against suspected terrorists? pp 1-24

Jack Bickerton discusses the legal and moral issues around the use of preventive detention as a counterterrorism mechanism. He suggests that the widespread use of preventive detention as an ‘exceptional measure’ is suggestive of a war model of legislation rather than a criminal model. He argues that this leads to interference with individual rights to liberty, fair trial, and due process, and questions the circumstances in which this approach meets the tests of reasonable and proportionality which might justify such interference

Ilias Ioannou: Legal Regulation of Virtual Currencies: Illicit Activities and Current Developments in the Realm of Payment Systems pp 25-52

Ilias Ioannou writes on virtual currencies, and the law’s response to the tension between their ingenious potential to function as a means for good, and their equally ingenious utility to illicit actors. After considering the regulation of virtual currencies in the European Legal Area, he suggests a more comprehensive legal response, embedding Virtual Currencies into the financial system by redirecting regulation towards the uniqueness of their underlying technology.

Emily Ottley: Abortion on Request: A Desirable Response to the Criminalisation of Abortion in England and Wales? pp 53-71

Emily Ottley addresses the criminalisation of abortion in England and Wales, suggesting that the law is long overdue for reform in this area. She argues for abortion to be made available on request in early pregnancy, that request being made within the context of the patient-centred and best interests approach of medical ethics rather than within the context of the criminal law. She approaches this by considering both the incompatibility of the current law with human rights obligations and the modern prioritisation of respect for autonomy in both medical ethics and law.

Adyasha Samal: Extending Arbitration Agreements to Non-Signatories: A Defence of the Group of Companies Doctrine pp 72-96

Adyasha Samal examines the Group of Companies Doctrine which prescribes a test to determine whether a non-signatory is bound by an arbitration agreement whose scope is extended to them when this is necessary in order to resolve the dispute. The Doctrine relies for its justification on a concept of presumed consent. She argues that the Doctrine’s requirements – for a tight group structure, involvement of the third party in the conclusion of the contract, and common intention of all parties to bind the third party to the agreement – arguing that this focus on behaviour and written
agreement functions to uphold arbitration’s core tenet of consent.

Malwina Wojcik: Navigating the hierarchy of memories:the ECtHR judgment in Perinçek v Switzerland pp 97-115

Malwina Wojcik analyses the judgment of the European Court of Human Rights in Perinçek v Switzerland, which considered whether criminalising the Armenian genocide denial conflicted the right to free speech enshrined in Article 10 of the ECHR. She examines the judgement in the light of the key arguments for distinct legal treatment of Holocaust denial, and suggests that in affirming different legal treatment of Holocaust denial and denial of other genocides the Strasbourg Court has created a problematic hierarchy of memories.

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VOLUME X ISSUE II (2020)

Table of contents

Sophie McNeill – Article 31 of the CRC – The Right to Play, Rest and Leisure: A Forgotten Right for Children?

Kristin Ebner – Transnational Criminal Law: A Tool to Further Western Interests?

Chinmayi Sharma – State Immunity and English Courts: Examining Trends and Engagement with Public International Law

Julia Launders – Hyperlinking and Copyright Infringement in the EU

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VOLUME X ISSUE I (2019)

Table of contents

Jack Bickerton – An insidious violation of the mind: Should family courts remove children from ‘home’ due to ‘radicalisation’?

Hanna Rzeczycka and Mitja Kovac – Autonomous self-driving vehicles – the advent of a new legal era?

Darragh Sheehy – Towards a new ‘measuring of harm’: A critique of the offence of ‘coercive control’ under the Domestic Violence Act 2018

Malory Zafra Sierra – Analysing the relationship between Corporate Social Responsibility and Climate Change

Malcolm Wu – Does judicial caning in Singapore amount to torture?

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VOLUME IX ISSUE II (2019)

VOLUME IX ISSUE I (2018)

Maya Dabrowski –  The End of LIBOR in 2022: What Next? An Analysis of LIBOR as a Major Interest Rate Benchmark, its Weaknesses and Potential Alternatives

Jake Jacobs  – Defalcations, Swindles, and Fraud: Ungentlemanly Capitalism in Victorian Babylon, 1800 – 1899 Examining the Need for Revision of Cain and Hopkins’ Model of Gentlemanly Capitalism

William De Catelle – European Union Directive 2014/95 on Non-Financial Reporting: A Successful Experimentalist Governance Architecture?

Mattia Pinto – The Denationalisation of Foreign Fighters: How European States Expel Unwanted Citizens

Justin Su-Wan Yang – ‘Courts in Conflict’ by Nicola Palmer

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VOLUME VIII ISSUE II (2017) 

Alexander Heeps – Diplomatic Protection and Human Rights: Quo Vadis?

Justin Su-Wan Yang – The Shifting Tide (Once Again) of Shari’a Law in Northern Nigeria

Dr. Ronnie R. F. Yearwood – Ideas for a New Politics in Barbados: Governance and Truth

Giuseppe Lisella – The “Short Blanket” Of Civil Justice: A Comparative Analysis of Summary Judgments

Alfred Yang, Eric Hong – Should the Doctrine of Adverse Possession be Abolished in Hong Kong?

Ross Davis – Surfing the Wave: Pan-Africanism’s Relationship with Socialism and the Transatlantic Right-Wing

Dr. Nafees Ahmad – Internally Displaced Persons and International Refugee Law: Protection Gaps, Challenges and Implementation in Practice    

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VOLUME VIII ISSUE I (2017) 

Giulia Gentile – The “Crossed Judicial Scrutiny” of the European Court of Human Rights and International Court of Justice: A Plea for Reforms in Order to Enhance Coordination Between International Humanitarian Law and International Human Rights Law

Sicheng Zhu – Performance Interest and Unconscionability in Affirmation Cases

Nafees Ahmad – The Constitution-Based Approach of Indian Judiciary to The Refugee Rights and Global Standards of the UN Convention

Jasmin Ziegelbecker – Science and Law: An (Un)likely Kinship? How International Courts and Tribunals Solve Scientific Issues

Hillary Chua – Designer Babies and the Law: A Legal Analysis of Human Germline Editing in Light of the UK’s Human Rights Obligations

Monique Law – R2P: Activating the International Community’s Responsibility to Protect by Shifting Focus Away from Collective Action by the Security Council Towards Early Warning and Prevention

Jake Lewis – Achieving Relational Justice for Doctor and Patient

Jan Linhart – Can Industry-Wide Self-Regulation in The UK Banking Sector Succeed? A Law and Economics Perspective

Harshit Rai and Madangi Ramakrishna – Safeguarding Investor Interests via Multilateral Approach to Expropriations

Dario Chiari – Is Corporate Social Responsibility So Soft? The Relationship between Corporate Social Responsibility and Unfair Commercial Practice Law

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VOLUME VII ISSUE II (2016) 

Mathilde Crepin – Extended Definitions of a Refugee and Complementary Forms of Protection: An Obsolete Polarisation between Two Different Approaches to International Protection?

Beatriz Lie – Legal Mechanisms of Economic Integration in Latin America: The Bolivarian Alternative

Nedim Malovic – EU Citizenship: An Analysis of its Evolution and Application to the Expulsion of Minorities

Mohammed Subhan Hussain – History, Law and Vernacular Knowledge: The Threat to Women’s Collective Representation Under the Guise of Androgyny in Pakistan

Talia Schwartz Maor – Reconciling Privacy and Right to Information in Electronic Access to Court Records

Miko Leach – Deprived from Right to Food

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VOLUME VII ISSUE I (2016) 

Jumani Robbins – Open Justice 2.0: Technology, Trust and Citizen Journalism in the Contemporary Courtroom

Ahmed Balto – Re-considering theTheory of Universal Human Rights in Light of the Clash Between Two Universalisms: International Human Rights Law and Islamic Law

Tanvi Mani – The Applicability of the Norms of Emergency Rescue of Astronauts to Space Tourists

Alex Catalán Flores – Reconceiving ‘Burden-Sharing’ in International Refugee Law

Jonathan Lee – Reforming Parasitic Accessory Liability in English Law

João Ferreira – How Mismatched Tax Rules Allow Multinational Enterprises to Be One Step Ahead – In Particular, Apple and Amazon

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VOLUME VI, ISSUE I (2015) – Spring Issue

Mia Shuk Chun Lam – The Granting of Intellectual Property Rights and Their Effect on the Promotion of Future Innovation and Creativity

Monika Kirova – Reception of European Union Law by the Czech Constitutional Court – A Struggle for Authority?

Rosa Lee – Promissory Estoppel and Proprietary Estoppel: A Response to the Myth of a Unifying Approach

Amy Dunne – Hybrid Cases Under the EU Cartel Settlement Procedure: The Individuality in Collective Infringement

Zhang Qijin – Reconciliation Between Central Government’s Concerns Over Relaxing the Nomination Process and the Constitutional Human Rights Protection: A Possible Way Forward for Hong Kong

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VOLUME V, ISSUE II – Winter 2014

The Rights Gap: How the law of abortion in England and Wales has deprived women and foetuses of their inalienable human rights, pp. 1-15
Elisabeth Attwood

Defining Tax Avoidance, pp. 16-32
Dennis Dixon

Dworkin’s Argument on Abortion, pp. 33-51
Dorota Galeza

Property Law: The Unsung Hero of North Sea Oil and Gas, pp. 52-66
Demetris Hadjiosif and Constantinos Yiallourides

Three Steps Forward, Three Steps Back: Why the Supreme Court decision in Prest v Petrodel Resources Ltd leads us nowhere, pp. 67-82
Adam Liew

Science, Expertise and Due Deference, pp. 83-98
Ciju Puthuppally

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VOLUME V, ISSUE 1 – Spring 2014

Asylum for Refusing to Fight: Charting the Development Towards the Right to Conscientious Objection, pp. 1-15
Amy F. W. Corcoran

Ownership as Authority, pp. 16-29
Dan Fuller

Freedom of Speech: A Pernicious Shroud for Homophobia, pp. 30-42
Conor McCormick

Do Children Require Special Protection Under International Human Rights Law?, pp. 43-57
Fiona Orr

Maximising Utility: Applying Utilitarian Theory to International Patent Law, pp. 58-77
Emma Perot

Recognition of the English Solvent Schemes of Arrangement in Germany, pp. 78-91
Arthur Swierczok

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VOLUME IV, ISSUE 2 – 2013 (Download)

• An evaluation of reforms to auditor liability: a necessity or a step too
  far? by Aureilia Jayne Storey, University of Birmingham

• Are International Human Rights selfish?
  by Ervis Haziri, Queen Mary, University of London

• The UK and its ‘good tax system’: an analysis based on evolving criteria
  by Ligali Ajibola Ayorinde, Queen Mary, University of London

• The future of Maltese tax litigation after John Geranzi Ltd. v Commissioner of Inland Revenue
  by Nicola Jaccarini, University of Malta

• Absence of Precedent in Investment Arbitration: A Missed Opportunity to Clarify Standards of Protection
  by Devrim Deniz Celik, University College London

• Development of Corporate Ownership and Control in China
  by Min Yan, King’s College London

• House of Lords Reform: Where now?
  by Scott Wallace, Girton College, University of Cambridge

• Negotiation and Mediation: Promoting a Culture of Injustice?
  by Charitha Shashiraj, NALSAR University of Law, India

• Case Comment: Balancing Freedom of Religion in the Workplace, Eweida and Others v the United Kingdom (Application numbers 48420/10, 59842/10, 51671/10 and 36516/10)
  by Natalie Pratt, University of Oxford

• Searching, Suggesting and Speaking: Does a Company Have Recourse for Defamation on Google?
  by Donal Scott, London School of Economics and Political Science

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 VOLUME IV, ISSUE 1 – 2013 (Download)

• Two years later: revisiting the Supreme Court’s decision to eliminate expert immunity by Chintan Chandrachud, University of Oxford

• Engaging law with social reality for the legal protection of unmarried cohabiting couples by Kelly Reeve, University of Warwick

• Derivative Actions in the UK: Revised yet unimproved image about derivatives market
  by Shaowei Lin, University of Edinburgh

• Religious Hate Speech Regulation: Counteracting Inequality or Counterproductive?
  by John-Marjason-Stamp, University of Oxford

• The Relationship between European Union Law and International Law through the Prism of the Court of Justice’s ETS Judgment: Revisiting Kadi I
  by Ana Júlia Maurício, University of Cambridge

BOOK REVIEWS

• Albert Dzur, Punishment, Participatory, Democracy, and the Jury 

• Andrew Keay, The Corporate Objective 

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VOLUME III, ISSUE 2 – APRIL 2012 (DOWNLOAD)

• English Public Law on Children has Found a More Acceptable Balance Between the Welfare of the Child on the One Hand and the Rights of the Child’s Parents on the Other than the Private Law on Residence and Contact Disputes
  by Amarit Kaur Dhaliwal

• The Horizontal Direct Effect of Directives – Time For a Change in Direction?
  by Emma Morgaine Williamson

• Racially Biased Juries in the Criminal Court
  by Paul Gavin

• Why Twail Must Not Fail: Origins & Applications of Third World Approaches to International Law
  by Vikrant Dayanand Shetty

• Poets As Legislators: Robert Browning’s Influence on the Reform on Equity in the Victorian Era
  by Morshed Mannan

• The Case for Kosovo’s Statehood and the Use of Principles of International Law
  by Mustafa Latif-Aramesh

• Sadomasochism and the Criminal Law: A Human Rights Approach
  by Stephen Doherty

• Morality in Laws and Victimless Crimes
  by Danish X

• NAFTA Chapter 19: The Good, The Bad & The WTO
  by Shivankar Sharma

• The Interpretation of the Doctrine of Piercing the Corporate Veil by the UK Courts is More Successful Than By the US Courts
  by Florence Gakungi

• The Principle of Procedural Autonomy and the Principle of Effectiveness of the Judicial Protection in the Recent ECJ Case Law: The Issue of Jurisdictional Rules
  by Alessandro di Mario

BOOK REVIEWS

• Francis N. Botchway (ed.), “Natural Resource Investment and Africa’s Development”
  by Baskaran Balasingham

• Andrew D. Mitchell, “Legal Principles in WTO Dispute”
  by Benedikte Barsett

• Renato Nazzini, “The Foundations of European Union Competition Law: The Objective and Principles of Article 102”
  by Charlotte Vermeerschv

CASE NOTE

• Case Note on Sedjic And Finci v. Bosnia And Herzegovina
  by Nasia Hadjigeorgiou

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VOLUME III, ISSUE 1 – DECEMBER 2011 (DOWNLOAD)

• ‘Introducing a “British Bill of Rights”‘
  by Emma Sau Hong Lui

• ‘Critical Analysis of the Concept of a “Reasonably Available Alternative Measure” in the Context of Article XX GATT, in the Light of the Panel and Appellate Body Rulings in Brazil-Tyres‘
  by Corinna Paeffgen

• ‘Commutative Justice in Tort: Towards a “Pure” Rights-Based Theory’
  by Jonathan Michael Cockfield

• ‘Can a Persuasive Case Be Made That the Monarch is an Efficient Part of the Constitution?’
  by Dominic Bright

• ‘Gill v RSPCA: Law, Principle and Policy’
  by Ranamit Banerjee

• ‘Behind the Walls of the Forbidden Court: How US Courts Bar Access to Foreign Claimants’
  by Jacopo Crivellaro

• ‘Caribbean Court of Justice or the Judicial Committee of the Privy Council? A Discussion on the Final Appellate Court for the Commonwealth Carribean’
  by Matthew Gayle

BOOK REVIEW

• ‘Tom Bingham’s “The Lives of the Law”‘
  by Stefan Mandelbaum

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VOLUME II, ISSUE 1 – DECEMBER 2010 (DOWNLOAD)

• ‘The EU Maintenance Regulation: A qualified success for European Family Law’
  by Philip Bremner

• ‘Moral Hazard and How It Was Invoked in the Northern Rock Crisis of 2007’
  by Andres Curia Miranda

• ‘Why the Criminal Law Principle of Correspondence Should Prevail Over the Pragmatism of Constructed Liability’
  by Dominic JJ Bright

• ‘Selective Abortion: Selecting the right response’
  by Chris Cowland

• ‘Procreative Liberty and Selecting for Disability: Section 14(4) Human Fertilisation and Embryology Act 2008’
  by Edward M Taylor

• ‘It’s Just Not Cricket: EU Competition Law and its Application to Sporting Rules’
  by Eoin Kealy

• ‘The Right to Life Shall Be Secured to Everyone by Law: The Extent to Which the European Court of Human Rights has Developed the Concept of Positive Obligations in Relation to Article 2’
  by Louise McCamphill

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VOLUME II, ISSUE 2 – APRIL 2011 (DOWNLOAD)

• ‘Live and Let Die: Bringing Physician-Assisted Suicide to the UK’
  by Tariq Teja

• ‘The Power of Party: A Critical Examination of Political Party Influence in the House of Commons and the Constituency’
  by James Hockin

• ‘An Evaluation of Surrogacy Law and its Potential Development in the UK: Is There a Clear Way Forward?’
  by Phillip Anderson

• ‘An Analysis of the Takeover Code’s Treatment of an Acquiring Company’s Shareholders: Stealing From the Rich to Give to the Already Wealthy?’
  by Tiernan Fitzgibbon

• ‘How Relevant is Carl Schmitt’s Work Today?’
  by Shehram Khattak

• ‘What is at State in the Debate on International Development’
  by Romit Bhandari

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VOLUME I, ISSUE 1 – 2009 (DOWNLOAD)

• ‘The Armenian Genocide: International Law and the Road to Recovery’
  by Neshan Minassian

• ‘The Constitutional Right to Express Hatred: A Comparative Analysis’
  by Hin-Yan Liu

• ‘Vicarious Punishment: An Employer’s Vicarious Liability for Exemplary Damages’
  by Edward Taylor

• ‘Assessing the Contributions of the EC at the WTO in Facilitating Access to Affordable Medicines in Africa’
  by Sharifah Rahma Sekalala and Kingah Sevidzen

• ‘Of What Value if Gramsci’s Concept of Hegemony to our Understanding of Law Today?’
  by Sara Fantoni