This PhD thesis has two core objectives: 1) To critically analyse and compare the legal provisions relating to capacity assessment in England and Wales, Scotland and India; (2) To critically analyse and compare the legal provisions relating to decision-making on behalf of the incapable patient in England and Wales, Scotland and India. The methodology utilised to achieve these objectives is essentially a classic literature based comparative approach. This thesis provides an original contribution to knowledge by virtue of the fact that an in-depth tripartite comparative study of capacity law provisions in England and Wales, Scotland and India has yet to be undertaken within existing literature. The research undertaken in this thesis is timely given the implementation of capacity legislation in England and Wales and the relevant provisions of the Mental Capacity Act 2005 of England and Wales and the Adults with Incapacity (Scotland) Act 2000 are compared and critiqued as part of a discussion of the key ethical, legal and procedural concepts which underpin the law of capacity. In addition, the capacity law of England and Scotland is compared with the equivalent system in Indian law, which is at a nascent stage of development in comparison to the United Kingdom. The fact that India, despite being an Eastern country, also retains the influence of U.K law through its status as a Commonwealth country, means that the differences between the English, Scottish and Indian approaches to capacity can be attributed to issues of culture or development. The research undertaken for this thesis has shown that developmental issues are of greater impact, and while cultural issues are of some relevance, there are enough underlying commonalities between the three jurisdictions to suggest that India's capacity law is at a different point developmentally speaking.

The Aims of this thesis are to understand the changes of the concept of sovereignty in the international system considering the role of regional and functional arrangements and the contribution of federalism as a political theory. Federal theory is particularly important to the concept of sovereignty, particularly if one considers the diversity of federal political systems and their different historical experiences. Thus the thesis examines the federal experience of the United States throughout history and the European tradition of federalism. The present research is an attempt to emphasise the diversity of federalism as a legal and political concept and to demonstrate that federal political systems can be applicable beyond the modern state. The EU is a paradigmatic case of a regional arrangement, ‘proto-federal’ that challenges the notion of sovereignty as an exclusive statehood attribute. The thesis examines the recent decision of the German Federal Constitutional Court concerning the Treaty of Lisbon, which can be seen as an archetype of the challenges posed to European integration. Moreover, the thesis analyses the concept of subsidiarity, considered by some as a potential replacement of the concept of sovereignty. A theory of institutions is required in order to understand the mechanisms of international cooperation between states, this means that sovereignty should take into account international institutions and their constitutive role on state behaviour. Furthermore, the reconceptualization of sovereignty should consider at least three different factors: the rise of regional and functional legal orders, the different understandings of sovereignty offered by the federalist tradition and the processes of ‘deterritorialization’ and disaggregation of authority.

Sport is an integral part of popular culture, capturing the hearts and minds of millions of people from every section of society 1. Maintaining competitive balance in sport is essential in preserving its long term survival. A higher uncertainty of outcome in contests is likely to result in greater spectator demand and increased revenues; whereas an imbalanced competition will eventually lead to a decline in attendance and the overall quality of the sport. The regulation of competitive balance in individual sports is difficult to implement, as success relies largely on the athlete’s individual skill and ability 2. In contrast, team sports can be influenced by a number of regulatory measures such as player drafts, salary caps, transfer windows, and player quotas. Analysis into Europe and North America’s regulation of competitive balance reveals a variety of measures used to foster greater equality of opportunity between teams competing with one another in sport. Unfortunately European sports are restricted somewhat, as access to sport is considered to be a social advantage and importance for the integration of citizens, and therefore cannot remain outside the scope of the fundamental principles of free movement. Although the European Union accepts the ‘specificity of sport’, it grants no exception from European Union law for the industry; a principle that has recently been reaffirmed in the decisions of Bosman 3 and Meca-Medina 4. Sports governing bodies must therefore ensure new rules and regulatory measures comply with European Union law; reducing the number of measures available to them. This thesis analyses the competitive balance in sport both as a more theoretical phenomenon and as something that concrete measures can practically inhibit or stimulate. It ‘drills down’ into how issues of competitive balance arise in a number of specific contexts (doping, corruption, the influence of sponsors and the broadcast media, and with respect to gender and disability) and examines how these specific issues may be resolved as well as drawing out the broader lessons they hold for competitive balance as a whole. It is envisaged that the thesis will not only be of academic interest but prove to be a practical tool for use by those who are at the frontline of governance of sport. 1 Lewis, A. and Taylor, J. (2003) ‘Sport: Law and Practice’, Tottel publishing, p4. 2 Success in individual sports can occasionally rely on other issues such as resources for training. It is harder to have success in winter sports (e.g. bobsleigh) if you live in Jamaica. 3 Case C-415/93 Union Royale Belge Sociétés de Football Association and others v Jean-Marc Bosman and others [1995] ECR 1-4921. 4 Case C-519/04 Meca-Medina and Majcen v Commission [2006] ECR I-6991.

This research examined the management of risk in conveyancing transactions in the context of the move from paper based to electronic conveyancing (eConveyancing). Legal, descriptive, analytical and comparative techniques were deployed in order to determine the likely impact of technological change on the distribution of legal risk with particular reference to Ontario and Ireland. The impact is the extent to which a change in transactional process may unintentionally affect risk. Risk being the consequence of change and the likelihood of that consequence having a negative effect. The particular focus was on risks that impact on title registration and the security, protection or lack thereof that this registration offers to land owners, third parties and property claimants. The method deployed was to use a model or abstracted process to perform a transaction analysis based on abstract participants and their standpoint in the process. The methodology was based upon doctrinal legal scholarship in the comparative law tradition. Both the method and methodology demanded that a neutral vocabulary be generated and this formed the foundation for the schematic. The risks were identified, analysed and evaluated against the backdrop of title registration and the development of eConveyancing. As eConveyancing systems have not been extensively discussed in legal literature this research is original in the Irish context and more generally. It has the potential to influence policy development as it identifies normative possibilities for reform of conveyancing in Ireland. The model or abstracted process is also original as these are rarely used in property law. The third original feature of this research is that it fills a gap in the field. Much of the writing on eConveyancing has focused on the role of professionals in the conveyancing process and the change in their risk profile. Writers and researchers have generally failed to explore the impact on land owners and third parties or property claimants. This research fills this gap in the field.

Disputes between employers and employees often have damaging consequences, including employee claiming that leads to lengthy, expensive and time-intensive legal processes. It is questionable if employee-initiated legal claims always effectively respond to the concerns on which they are based. This study explores the motivations of individuals in New Brunswick, Canada in their decisions to consider legal action against their employers. It argues that more attention should be paid to the reasons why individuals elect to pursue legal remedies and to the exploration of means for avoiding litigation or addressing the resolution of such differences in more effective and efficient ways. Adopting a multiple operationism methodology, this study has explored the motives of New Brunswick employees who consider advancing legal claims against their employers and has considered the procedural and remedial capacity of the existing common law and statutory employment law system to effectively respond to those motives. In addition, the study has examined the responsiveness of alternate justice models to the employee concerns that frequently result in the initiation of legal claims. The study argues that many employees' legal claims are highly motivated by interests that are more dimensioned than the interests contemplated by the New Brunswick legal system and that amendments to the system should be considered. The system has been significantly informed and influenced by Classical Contract Law Theory, and the study suggests that implementation of justice concepts and processes founded on Relational Contract Law Theory will respond more effectively to the employee concerns that motive legal claims.

This thesis researches EU private international law rules relating to contracts, including its historical development, its rules and its policy objectives. In order to evaluate EU private international law and its policy objectives, English and Belgian private international law rules are investigated as exemplars of domestic law systems within the EU. In this approach lies one of the unique contributions to knowledge of the project. In particular the research takes an original and unique approach by investigating issues from an EU as well as a comparative national perspective. English and Belgian law represent different legal histories and systems (common law and civil law) and are therefore representative of the types of compromises that have to be made at an EU level. Moreover, the relevant legal instruments in the area of research have undergone some changes, some of which are significant and very recent. Particular reference must be made here to the Brussels I Regulation recast 2012. Due to its recent nature, very little publications are available, a gap the research wants to help fill by a detailed textual analysis of the relevant provisions. Finally, there is as of yet little detailed research on the EU’s policy objectives in the area of private international law. To some extent this holds true for English and Belgian law as well. The research aims to help fill that gap.

The study first discusses solicitors’ training, in its political context, providing an outline of litigation practice measured against relevant competence frameworks, including those intended to mark the point of qualification for the future, demonstrating that the point of qualification may be characterised by stress, uncertainty and mixed messages as to the status (if any) now achieved: a period of “professional adolescence”.The currently proposed competence framework for the point of qualification is analysed so as to extract from it an assumed “competence for development”. The literature relating to CPD; adult learning; nature and acquisition of expertise and workplace learning is then analysed in the context of the interview group. The existing CPD scheme is found to permit, rather than to encourage, development including the “aspiration” required to increase the scope of activity (contrasted with enhancement of the quality of performance). The andragogical assumptions, in particular those of selfdirection and autonomy, are compared with the literature on the novice-expert spectrum, reconciled by concluding that the period of professional adolescence may depress developmental autonomy. Further discussion of expertise includes the questions whether junior lawyers perceive expert traits in colleagues; whether they assume that expertise is acquired unconsciously by accumulating “experience” or whether they perceive expert rules as susceptible of being taught. The discussion of workplace learning considers manifestation of the andragogical assumptions in the workplace, contrasting acquisition of tacit learning through “experience” with deliberate “engagement with experience” including classic reflection-on-action but also embracing the asking of questions and other recourse to colleagues. The role of the employer as definer, constrainer or supporter of developmental activity is woven into discussion at all stages. The methodology adopted is a pragmatic synthesis of phenomenology with the disciplines of grounded theory; deployed in face-to-face interviews and detailed coding of transcripts. Analysis first examines perceptions of the benchmarks of qualification and the three year watershed, concluding that prior experience in the training contract informs not only feelings of confidence and competence at the point of qualification but contributes to a perceived “deficit” which preoccupies and defines developmental activity in many for at least the subsequent two years. CPD, whilst ostensibly prioritised as sanctioned learning, is, despite assumptions that it involves didactic legal updating, perceived as addressing parts of that deficit subject to constraints about tightly defined relevance of content and level and appropriate delivery which supplies manageable steps for implementation of what is learned. Workplace learning is perceived as more valuable, allowing in particular for the repetition of tasks and the experiencing of the whole of a transaction seen to be absent from the training contract but informing the unconscious acquisition of expertise. Nevertheless, aspects of engagement with experience, in particular asking questions and the use of self-selected “slight seniors” are apparent, whilst reflection-on-action is possible for those whose deficit is less pronounced or who are able to draw on assistance for implementation. The study then concludes with an examination of the shape of the assumed competence for development derived from the picture provided by the interviews.

Disclosing a value system in a living will could be in your best interests: Whilst doctors are recognised for being expert in medical matters they are nevertheless generally required by law to obtain the consent of a competent adult patient prior to administering a medical treatment.1 The need for consent underpins the right of a competent adult patient to refuse treatment, even life preserving treatment. Accordingly, bodily inviolability is a fundamental principle of law and violation of it, even for benevolent reasons, is prima facie punishable. Instead of which a competent patient has a right to self-determine what shall happen to their own body. In this way the subjective decision-making standards and methods of a competent patient inform, and are made determinative, of any decision to accept or reject a medical treatment. It is against this general background that the comments of Lord Goff in the case of Bland should be considered. There he suggested that the best interests test should comprise of something more than purely professional appraisal of a person’s medical welfare.2 To confine the test in this way, he said, would be inconsistent with the primacy given to the principle of self-determination and would ‘downgrade the status of the incompetent person by placing a lesser value on [their] intrinsic worth and vitality’.3 So as the title to this thesis suggests I am primarily concerned with legal provisions governing medical treatment decision-making processes in respect of formerly competent adult patients. More specifically it questions whether the values, beliefs and preferences of members of this patient group should be more favourably promoted, i.e. used and made determinative, in medical treatment decision-making processes concerning them based on contemporary understanding and application of the moral principle of autonomy. Naturally this depends on whether a person’s value system can be accurately ascertained, recorded and protected to ensure that it is most fully promoted and respected in the future should a loss of decision-making capacity leave them unable to determine matters contemporaneously. Accordingly, the premise underlying this thesis is that the autonomous values, beliefs and preferences of a formerly competent person should be ascertained and recorded so that they can be understood and used by others to determine whether, and if so what, medical treatment is in the actual best interests of the patient. Essentially bodily integrity would be safeguarded if a surrogate decision-maker was able to determine what the patient would decide if they were competent to make that choice. A situation that is most desirable if we are not to downgrade the moral status of this particular group of incompetent patients. 1.The term generally has been used to denote the fact that the inviolability of persons is a fundamental principle of law and in a medical context this means that the administration of a medical treatment is dependent on some form of legal authority. As the primacy of the moral principle of autonomy is established in law doctors must obtain legal consent prior to administering a medical treatment. However, there are circumstances where the law remains paternalistic and medical treatment can be administered on the basis of an alternative legal authority, for example, the Mental Health Act 2007. 2. Airedale NHS Trust v Bland [1993] 1 All ER 821 HL. 3. Airedale NHS Trust v Bland [1993] 1 All ER 821 HL.

Although a substantial body of literature has developed in recent years in the area of cross-border insolvency, this scholarship has been dominated by scholars from the United States and Europe, so that a perspective from most of Sub-Saharan African (SSA) countries is lacking. This study addresses this perspective. It makes an in-depth examination and discussion of the challenges that SSA countries face in reform and application of cross-border insolvency law given the ever-growing multinational trade and investment. The study focuses on the risk of failure of SSA legislative processes to properly address the potential challenges of cross-border insolvencies in a manner that is sensitive to the local contexts and which provides a balance with international insolvency benchmarks. It examines cross-border insolvency theories; the global drivers for convergence of insolvency law through global insolvency norms; and the implications for cross-border insolvency regulations arising from cross-border trade and investment arrangements, such as the bilateral investment treaties, before considering the state and future of the legislative frameworks of SSA countries. It then brings out the ‘pressures’ exerted on and issues that emerge in the consideration and quest for crafting a workable and appropriate cross-border insolvency framework for a SSA country. Notably, the current insights and the pressures from the global convergence may result in unsuitable legislative reforms as such insights and the global insolvency norms are not necessarily and directly relevant to SSA situations. The study offers the perspective that has hitherto been lacking in the current scholarship and provides a theoretical insight and understanding on how the crafting of a workable and appropriate legislative framework may be undertaken, taking account of local policies and providing a balance with the existing international insolvency benchmarks. The study underscores the significance and challenge of prioritising the local contexts in developing a functional cross-border insolvency framework.

Where a business becomes insolvent and its rescue is predicated on a going concern sale or transfer to another employer, there is a tension between employee protection and the rescue of insolvent but viable businesses. There is a consensus that employees deserve protection when the business that employs them becomes insolvent and is transferred to another employer on a going concern basis, yet extensive levels of employee protection can jeopardise going concern business sales by increasing the level of liabilities assumed by the purchaser. Business rescue and employee protection goals of insolvency law and employment law respectively are not inevitably incompatible. Opinions are divided, however, on the best means for achieving compatibility. This thesis uses theory to establish how the tension between these goals may be addressed. There is a perception that the European-derived provisions concerning the protection of employees’ rights, in the context of insolvent business transfers, are inimical to the rescue culture in the United Kingdom. While the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) are necessary in ensuring that employees’ rights are not walked over during transfers of insolvent businesses, it is equally important that policy makers take into account the fact that the rescue and continuity of such businesses would yield a better result for the employees, in terms of job security, than would be the case if they are liquidated. Accordingly, legislation which seeks to protect the rights of employees in insolvency should first contribute to the rescue of insolvent businesses. Using theory as a tool for explanation, this research argues that it was in a bid to contribute to rescues of insolvent businesses that the Acquired Rights Directive (ARD) and TUPE were amended at the European and UK national levels. Theory helps in explaining how the changes made have struck the appropriate balance between employee protection and business rescue and offers normative justifications for these policies in the context of going concern transfers of insolvent business.