Hopton, T. C.
This thesis is an analysis of Hans Kelsen's Pure Theory of Law. It traces its development in critical reaction to natural law theory and to Kant in particular. It then defends the Pure Theory on the basis of presuppositions uncovered in its development. It further defends the Theory in the light of the major debates in jurisprudence of recent years. Certain specific problems are identified in the Theory and closely examined, including a discussion of its use in the Rhodesian Constitutional Cases. Finally, the conclusion attempts some assessment of the validity of the presuppositions on which the Theory is based.
Justice and finality in international judgments and awards : the ICJ, the WTO appellate body and ICSIDTsaroucha, L. January 2011 (has links)
This thesis addresses the ‘dilemma’ between justice and finality when the validity and effect of a judgment or an award of an international tribunal are challenged, whether by means of appeal, annulment or revision. The tension between the two principles has been misconstrued as a ‘dilemma’, whereas in reality they reflect a dynamic relationship between intrinsic and extrinsic aspects of international dispute settlement. Justice is the objective of international adjudication and arbitration, encompassing legality, legitimacy and effectiveness. Finality is a principle invented to support the attainment of justice, and to protect legal certainty against endless challenges. Finality without justice undermines legitimacy of a dispute settlement system. The context for this analysis is recent and conflicting tendencies relating to ICSID annulment proceedings in international investor-State arbitration. The annulment decision in CMS v. Argentina triggered serious concerns on how ‘errors’ and ‘lacunae’ in international judgments are left untreated, at a time when the rule of law has become a prime consideration in the international sphere too. The three jurisdictions examined highlight different aspects of this issue. The ICJ is the birthplace for revision of international judgments, and the principal judicial organ of the international community. The WTO AB is the only appellate mechanism functioning in State-State disputes in the international level. Finally, ICSID is the most prolific institutional arbitration forum in public international law, and its annulment procedure forms the terrain where the relationship between justice and finality is discussed more often. The thesis offers a revised theory of interpretation of the premises of legal recourse against international judgments, in the absence of a ‘World Appellate Court’. It concludes that justice as ‘rule of law’ and as ‘right process’ calls for manifest errors to be addressed by effective legal recourse. The principle of finality can only operate in furtherance of justice, not against it.
Nicholson, M. C.
On the basis of Frankfurt School critical theory and, in particular, the work of Walter Benjamin and Theodor Adorno, this thesis argues for an original, critical theory of international law’s ontology and practice. That argument develops out of a critique of three theoretical approaches to international law – the technological-industrial or positivist approach, the New Haven, legal realist approach, and the Critical Legal Studies, discourse approach. The recent debate concerning the fragmentation of international law is used, in chapter one, to illustrate the interaction between these three approaches and their limitations. The ultimate aim of the thesis is to present and defend a theory of international law based on the representation of life, reality, and nature as an alternative to theoretical approaches which emphasise legal control and domination of life, reality, and nature.
The thesis deals with the effects of European patents for the Common harket, i. e. the rights conferred by the Community patent, and the acts constituting an infringement of these rights. This subject is governed, as a rule, by the provisions set out in Chapter II of Part II of the Community Patent Convention 1975 (CPC). This excludes procedural aspects of infringement, and other related matters not covered by the CPC, which are to be determined by national law. The thesis examines in the introduction what are the issues covered solely by Community law, and what are the issues, concerning substantive law of infringement, to which national law will be applicable. The thesis is concerned with the scope of infringing activity under the CPC, and examines the effectiveness and justification of the exclusive rights which it confers upon the patentee. This covers, on the one hand, the acts constituting an infringement, i. e. direct infringement relating to patented products, patented processes and products obtained by such processes, as well as indirect infringement. On the other hand, it concerns the acts excepted by the CPC from the scope of infringing activity, the territorial limitation of the Community patent, the exhaustion of rights doctrine and temporal scope of infringement. For the purpose of analyzing the relevant CPC provisions, and proposing policies and solutions for its interpretation, the thesis examines the CPC's objectives, its relationship with EEC law and its legal history. This is in addition to a comparative study which includes references to the former and present law of EEC countries (to the extent of the availability of materials published in English), British Commonwealth countries and the U. S.. A special emphasis is put on U. K. law,
The impact of union citizenship upon rights to family reunification : an analysis of the residence rights of family members within the UKTaroni, Catherine Sarah January 2014 (has links)
This thesis explores the link between the residence rights of Union citizens and their family members and the Court of Justice of the European Union’s development of the concept of Union citizenship. The Court has not approached this development in a predictable or linear fashion, and the cementing of Union citizenship as a status capable of leading to residence rights in the form of Directive 2004/38 made the continuation of a flexible and expansive approach more difficult. This thesis examines the UK’s implementation of both the Citizens’ Directive and other EU sources of rights of residence and compares the rights of UK citizens with links to EU law to those without any possibility of relying on EU provisions within the UK. It is contended that Union citizenship has had a greater impact upon rights of residence for Union citizens and their family members than would have been anticipated from either the Treaty provisions or Directive 2004/38. The importance of EU rights of residence is particularly high in the UK, given the stringent requirements of the Immigration Rules concerning non-EU immigration. Treaty rights can circumvent restrictive UK provisions, and the approach of the UK judiciary in applying EU concepts in cases concerning the UK Immigration Rules is important in this respect. The fundamental rights implications of the Lisbon Treaty are assessed, and it is argued that the Court's continuing activism in relation to family rights is only in respect of Treaty rights, and that this has not been applied to the new Charter of Fundamental Rights. As such, the Court has failed to link Union citizenship and the Charter, which could have made for a more coherent sense of citizenship within the EU, but instead separates the application of fundamental rights from the unique concept of Union citizenship.
The role of better transparency law in corporate governance and financial markets, and its practicability in legal systems : a comparative study between the EU and TurkeySonmez, Melih January 2014 (has links)
Recent developments in globally connected financial markets have heightened the need for an effective flow of information between market players. In particular, the ‘devil side of corporations’, such as the scandals of Lehman Brothers, Parmalat and Imar Bank, has stimulated the debate on the core role of a high level of transparency in corporate governance structures as well as in financial markets. The main reason for the essentiality of a high level of transparency in financial markets is that it, similar to a shop window, not only increases the attractiveness of financial markets, but also, as an ‘invisible guard’, plays a preventative role for the unexpected events. Therefore, any opaqueness is unlikely to be tolerated in these highly competitive financial markets. The research of this thesis shows that transparency is one of the main elements for effective functioning of financial markets and a significant factor to the success of corporations. However, the creation of well- functioning transparency rules is not an easy process because it requires considerable and on-going efforts from policy-makers. In this respect, the aim of this research is to investigate how a high level of transparency plays a strategic role in corporate governance and financial markets despite its difficulties. However, to what extent has its importance been realised by policy-makers in their respective legal frameworks? In order to understand the practicability of transparency rules, this thesis presents and compares the EU and Turkish transparency laws as case studies. Hence, it designs a theoretical framework for the importance of transparency both in corporate governance and financial markets, and assesses how idea of transparency has been converted into practice. In order to make a comparative analysis between EU and Turkish transparency laws, this research develops the following key elements of better transparency law: a) The dual nature of transparency laws; b) The right modalities of transparency requirements; c) The key information to be made available; d) Effective bodies and institutions; e) The adaptability of relevant legal rules with recent innovations. Hence, this thesis examines the strengths and weaknesses of EU and Turkish transparency laws, and makes further recommendations based on the availability of these key elements in their respective legislative frameworks. Thus, overall, this research aims to critically examine the discussion about the relationship between a high level of transparency, the financial scandals and recent reforms in EU and Turkish transparency laws from a comparative perspective, and to identify key elements of better transparency law for financial markets.
Kandemir, Hatice Kubra
The purpose of this study is to discuss the role of external auditing in corporate governance and in financial markets by exploring audit regulation in the EU and in Turkey. This study contributes to the existing literature by providing a law perspective on audit regulation both in the EU and in Turkey. This study also contributes to the convergence analysis in EU laws on auditing (and between EU and Turkish laws on auditing) through a comparative analysis. This thesis has three main themes. The first theme concerns with the role and function of external auditing. In this respect this thesis identifies the role of auditing in different corporate governance systems and its function in today’s financial markets. The second theme relates to the audit regulation, in particular in the EU. This thesis examines the EU audit reform initiatives with respect to preliminary issues in the audit market. In addition, it critically analyses whether these reform proposals could provide further harmonisation in the EU. The central and the last theme of this thesis is convergence. It submits that integration of financial markets can lead to a convergence of auditing. Turkey, as a candidate country for the EU, seeks to benefit from the integration of financial markets. In the pursuit to be part of the international financial markets and to be a member of the EU, Turkey has reformed its law in line with EU law. This thesis questions however, whether these regulatory attempts have resulted (or can result) in convergence between the EU and Turkish laws.
A comparative study of central bank regulation and financial stability : lessons for the People's Republic of ChinaHan, Miao January 2015 (has links)
The global financial crisis (GFC) has been defined as the worst crisis since the 1930s Great Depression, affecting the worldwide financial and economic landscape and requiring profound legal reforms. The GFC has challenged the capacity of central banks to deal with financial risk. This thesis thus aims to explore the relationship between central bank regulation and financial stability. China has attracted particular attention by its quick responses and apparent speedy recovery; as a consequence, the strengths and weaknesses of its central bank should be critically assessed. The research question of this thesis looks at how the GFC has challenged the role played by state central banks in maintaining financial stability. It is answered through a comparative study. In principle, rules and laws affect a central bank in the context of their two-tier relationships—with Government and with the Market. This relationship is also affected by central banks in response to financial crises. Four major central banks are selected for comparison in this thesis; these are the Federal Reserve System of the US (US Fed), the Bank of England (BOE), the Bank of Japan (BOJ) and the People’s Bank of China (PBC). Their respective legal frameworks have been shaped by whether they are market-oriented or government-controlled. But such a stark distinction has been challenged in view of the different styles of central bank crisis management that occurred during the GFC. The case studies presented here suggest that a convergence has co-existed with some divergence during the development of central banks. The legal frameworks of these four central banks were very similar before the GFC, but they actually operated with varying levels of independence. With similar policy responses during the GFC, they have performed very differently and faced different tasks. This thesis seeks to identify some central explanatory variable for this behaviour, addressing the mismatch of similar risk management solutions and different outcomes. This comparative study argues that in spite of integration and globalization, the focus of central banks on risk management and financial stability has actually shown significant differences in approach. This thesis has also undertaken a systematic study of China’s central bank. Overall, limited independence has seriously constrained the PBC’s functions, making other reform measures relatively superficial as solutions to various risk management problems. The GFC has further exposed its inherent shortcoming. After comparing the PBC with other three central banks, this thesis concludes that domestic vulnerabilities, rather than external shocks, continue to affect the PBC’s orientation; this requires an improved balance between political power and market principles.
Conflict of laws for the assignment of receivables : from a property-contract approach to a rights-based approachChunchaemsai, Kittiwat January 2015 (has links)
The conflict of laws relating to the assignment of receivables raises characterisation difficulties. Based on the property-contract approach currently employed in legal systems, the characterisation of legal issues as contractual and proprietary results in complications. No general solution can be reached regarding the proprietary aspects of assignment, especially third parties’ effectiveness and priority issues. This thesis establishes that the core cause of the difficulty resides in the property-contract approach itself. It therefore attempts to provide a new approach to the conflict of laws for assignment, namely, a rights-based approach. It argues against the property-contract approach on the ground that assignment is not a hybrid of contract and property. Rather, it proves that the true legal nature of assignment is not the transfer of items of property, but a contractual method for transferring contractual rights to payment in receivables. The assignment of receivables not only creates triangular relationships between assignor, assignee and debtor, but also has external effects on third parties. In the rights-based approach, there is no need to differentiate between the contractual and proprietary aspects of assignment. The conflict of laws for assignment is established based on the relationships of rights between relevant persons, i.e. the relationship of rights between assignor and assignee, that between assignee and debtor, and the relationship of rights as it affects third parties including priority issues. These are proposed as being governed by the law of assignment and of assigned receivables. The rights-based approach eliminates the need to refer to property law and resolves characterisation difficulties. Consequentially, it grants an opportunity to modernise and harmonise the law of assignment based on contract law. In this way, positive outcomes vis-à-vis the financial practice concerning the assignment of receivables are the end result of this approach.
This thesis comprises comparative research, focusing on the legal design of minority shareholder protection and the effectiveness of this protection. Through comparison with similar legal arrangements in developed countries, this thesis aims to find ways to improve minority protection in Chinese listed companies. At the heart of this thesis are six main contributions. Firstly, the thesis begins by investigating the possibility of and effectiveness of self-protection by shareholders. It is argued that activism by institutional investors, rather than individual minority shareholders, would eliminate misconduct by management and infringement by majority shareholders. In addition, in order to encourage and support minority shareholders to become more involved in corporate governance in China, this thesis suggests the reinforcement of specific legal institutions for minority protection, such as the cumulative voting system and the derivative claim. Moreover, the thesis notes that the newly introduced derivative claim could provide better protection of minorities if the locus standi requirement were lower, and the litigation procedure easier. Second, this thesis argues that the board of directors is the most important participant in corporate governance. A professional and independent board of directors can guarantee that corporate decisions are made in the interests of all shareholders, including the minorities. With an effective board, majority shareholders would have less opportunity to obtain private benefits by infringing the rights of minorities. Accordingly, the question of how to guarantee board independence is the most important concern in corporate legal design. This thesis reviews the law concerning independent directors in the US, and concludes that the institution of independent directors in Chinese listed companies is still immature. If current deficiencies were overcome, independent directors in Chinese listed companies could help to increase corporate transparency, providing minorities with timely and accurate information. Thirdly, unlike Anglo-American countries, China uses a two-tier corporate governance structure, with a board of directors and a supervisory board. Although the effectiveness of the supervisory board in Chinese listed companies has frequently been challenged, this thesis argues that the supervisory board is and will remain the one of the most important internal monitors in the Chinese corporate governance structure. It will not be replaced easily. Therefore, this thesis suggests that legislators should clarify the function and responsibilities of the supervisory board and independent directors, and authorize more substantial powers to the supervisory board, for the purpose of increasing minority protection. Fourth, with regard to that unique participant in Chinese corporate governance, the party committee of the Chinese Communist Party, this thesis argues that it cannot improve corporate efficiency or minority protection. Rather, owing mainly to the mismatch of rights and responsibilities in legislation, it has brought about problems related to corruption. Therefore, this thesis argues that legislators should restrict the involvement of the party committee in corporate affairs, so as to reduce the potential for infringement of minority shareholders’ rights. Fifth, this thesis also argues that, in order to protect minority shareholders, the existence of a powerful external monitor is equally as important as that of an internal one. This study investigates the Chinese Securities Regulatory Commission (CSRC) and compares it to the Securities & Futures Commission in Hong Kong and the Securities and Exchange Commission in the US. The thesis highlights the efforts by the CSRC to improve the quality of governance in the Chinese market, and suggests that it should go further in increasing corporate transparency and investor education, in order to establish a better market environment for minority investors. Finally, this thesis advances a new ideal model of corporate governance structure, based on the principle of board-centralization and with a higher level of minority protection. The thesis has proposed that listed companies be divided into two categories, the competitive area and the non-competitive area. In the competitive area, the state should begin by ensuring a fair competitive market, and eventually quit that market. In the non-competitive area, the state should operate companies in the interests of both shareholders and social welfare. Furthermore, a three-level structure should be established, in which one or more state-owned asset management companies are set up as an insulation layer, or alternatively a buffer, between the government and the listed companies, in order to eliminate undue government intervention. This would make it less likely that the rights of minorities would be infringed.
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