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This thesis comprises an examination of choice of law rules in property. The study is principally concerned with the Scottish rules of international private law, but these, in turn, rely heavily upon, and in many respects are indistinguishable from, the equivalent English rules. Indeed, they seem in places to be mutually dependent. An examination is conducted of choice of law methodology, including in particular, an analysis of the configuration of choice of law rules. Consideration is given to the role of the connecting factor, and to the definition thereof, in its spatial, temporal and dimensional contexts. Throughout the thesis, a contrast is drawn between the jurisdiction-selecting approach of Scottish and English international private law, and the rule-selecting techniques which are employed in the United States of America. Central to the thesis is an examination of the role and definition of the connecting factor in the particular context of choice of law rules in property. The study traces the development of the lex situs rule, and its application to dealings with immovable property, corporeal moveable property and incorporeal moveable property, as well as the special case of dealings with 'cultural property'. Arguments in favour of, and against, the lex situs rule, in these various contexts, are considered, and special attention is paid to instances of latent and patent avoidance of the lex situs rule. In order to integrate the methodology analysis with the detailed study of choice of law in property, two alternative Models of suggested choice of law rules in property are presented for consideration; Model 1 is intended to be a draft international instrument, whereas Model 2, the more moderate proposal, is intended only as a draft national measure. The Models seek to embody the author's desire to inject a greater degree of flexibility into choice of law rules in property, and to attempt to formulate even-handed solutions to the complex problems (of space, time and policy) which arise in this area of the conflict of laws.

This thesis examines a range of issues concerning legal rights implementation in the field of Scottish housing law. This examination comprises three principle themes: firstly, an evaluation of the broad range of factors that can affect the implementation of legal rights. These factors are gleaned from an extensive literature review. Secondly, a critical analysis of key factors that affect the implementation of rights in respect of two Scottish councils, including assessment of the implementation of a select cluster of legal rights. Thirdly, drawing conclusions that identify the key factors pertinent to rights implementation. Legal developments in the field of housing have been diverse. But there has been little systematic study in the housing field of those factors that affect the implementation of legal rights. The thesis considers these factors in detail and reveals a complicated nexus of inter-relating elements that either contribute to or inhibit effective rights implementation. Political and ideological influences are shown to be significant, as is the influence of the legal process itself. But paramount in explaining rights implementation is the complex relationship that exists between council landlords and their tenants. Tenants, as key players in deciding to exercise their rights, often fail to do so; while landlords, charged by Central Government with the administrative task of implementing legal provisions, can be remiss in accomplishing their legal duties as a result of various organisational deficiencies. Organisational systems theory is applied to identify key organisational elements that are critical to ensure effective rights implementation. These elements are analysed in detail in the fieldwork that evaluates the organisational practices of two Scottish councils; this fieldwork incorporates analysis of implementation of four specific legal housing rights. Findings suggest that rights implementation is often ineffective, this failing attributable to a number of specific organisational deficiencies that include dearth of strategic planning, inadequacy of policy and procedural documentation, inappropriate work practices including lack of relevant performance indicators, ineffective communication systems and, crucially, under-developed training programmes for housing staff.

This research is a response to suggestions by the various European Community (EC) institutions that differences between the property law regimes of the various member states represent an obstacle to further European integration. The EC is itself a legal entity having legislative powers. Within its areas of competence it legislates on many social and economic issues and its legislation is binding in the legal systems of its fifteen member states. However, EC legislative powers are said to be ‘attributive’ in that sovereignty ultimately resides with the members states. The EC is therefore only competent to legislate in areas where the member states have invested it with the necessary powers. Specifically, in the context of this research, the EC has no competence to legislate on matters related to property law. Article 295 of the EC treaty (former Article 222) states that law-making powers in these areas remain with the member-states. The research examines the suggestion that certain features of some national property law regimes are in conflict with the social and economic aspirations of further European integration and investigates the regimes of the fifteen member states in this context. It adopts a comparative law methodology and seeks to identify similarities and differences between the various regimes. The methodology utilises an expert from each of the states to produce a collection of national reports which are then analysed within the thesis.

The aim of my thesis is to investigate the relationship between legal protections of minority shareholders – ‘on the books’ and ‘in action’ – and the development of equity markets. In this regard, there is a general consensus that Russian legal measures adopted to protect minority shareholders are strong. The failure of the judiciary to enforce these measures is the principal focus of the academic criticism and has been frequently cited to explain the underdevelopment of the Russian equity market. Notably, the criticism of the judiciary persists despite the market’s marked improvements over the last decade. And yet there has been little empirical analysis of enforcement of the minority shareholder protections by Russian judiciary. This thesis examines private enforcement of corporate law in Russia focusing on the lawsuits to impugn transactions with corporate insiders and the outcomes of those suits. Drawing on a dataset of 170 cases decided by the Federal Arbitrazh Court for the Moscow region in 1999 – 2006, the thesis finds that a large proportion of claimants are unsuccessful. Relying primarily on the law and economics literature and theoretical accounts of the relationship between the law and market development, the thesis develops an analytical framework (for convenience termed judicial bias hypothesis) against which it evaluates case outcomes. The evaluation suggests that in a substantial fraction of the cases the outcomes were justified by legislation or by efficiency, casting doubt over the criticisms of Russian judiciary. While cautious in drawing causal links between the enforcement and markets, the thesis suggests that marginalising legal institutions’ role in Russia might be premature. Their role in fostering the market might be greater than anticipated particularly in incentivising disclosure if not in deterring overreaching.

Relationships between landlords and young people, (those under 25), in the private rented sector (PRS) in England and Wales raise a number of important issues for social policy, housing policy and legislation. Firstly, the PRS performs a key role in accommodating young single people who are disproportionately represented in the sector, as access to other tenures is limited. Secondly, successive policy initiatives and legislation have transformed the letting environment in the PRS in conjunction with limiting the resources available to young people to finance accommodation in the sector. Thirdly, relationships in the PRS are at the intersection of a number of legislative provisions and policy regimes resulting in a range of assumptions about each party's respective modes of behaviour in the sector. These aspects of relationships and associated policy and legislative contexts are the key features of exploration in this thesis. This thesis has two main aims. Firstly, to explore assumptions about the nature of the existing legal framework in the PRS and assess its adequacy in regulating relationships. Secondly, to explore the social and economic contexts of relationships and their importance. A qualitative approach was adopted to examine these issues and four research methods were used: in-depth qualitative interviews, vignettes, flashcards and an analysis of letting agreements. The research was conducted in York and a total of 35 interviews were carried out, 15 with landlords, 15 with young people in the PRS, and 5 with representatives of local organisations. This thesis raises implications about the limited role of the law in regulating relationships in the PRS and raises questions about how fair and equitable relationships can be achieved. Regulation and reform of the sector require careful consideration and an awareness of the social and economic contexts of relationships. This thesis provides both a theoretical and empirical basis for the future exploration of these issues.

It has been claimed that “The limited liability corporation is the greatest single discovery of modern times. Even steam and electricity are less important than the limited liability company” (N.M. Butler, President of Columbia University). Indeed,there is a near universal consensus that the companies' legislation developed in England and Wales between 1844 and 1856 represented a major change in business organisation with profound – and continuing - social and economic consequences. Despite this there has been relatively little analysis of the origins and effect of that companies legislation. This is surprising, not least in the light of the abundance of recent analysis of the theoretical foundations of the company. It represents a major weakness in both company law and economic scholarship with potentially serious consequences for those who seek to reform company law. This dissertation seeks to redress that weakness by investigating the extent to which the Joint Stock Companies Acts 1844 to 1856 and the values which shaped them were consistent with economic efficiency. The values which shaped the early development of company law were found to be broadly consistent with economic efficiency but contradictory, for example, not only laissez-faire but the desire for state intervention were important. Central appear to have been the minimisation of expense and/ or inconvenience, the fear of fraud and the need for transparency of information. Making an overall assessment of the efficiency of the 1844 to 1856 Acts themselves proved more difficult since there were found to be many provisions that were efficiency-enhancing and many which were not. Perhaps the most interesting single finding was that which contradicted claims noted at the outset that the limited liability corporation was “ ... the greatest single discovery of modern times ....”. Rather, from an economic perspective, the introduction of limited liability appears to have been the inevitable result of the muddled thinking behind the 1844 Act, which required urgent corrective action in the 1855 and 1856 Acts to protect risk-averse investors. Generally, the dissertation provides support for mainstream transaction cost economic analysis whilst casting doubt on the significance of other theories such as jurisdictional competition, regulatory capture and path dependency.

The thesis deals with the recovery of benefits that have been transferred under illegal or immoral transactions, in particular from the perspective of the law of unjustified enrichment. The rules governing this area of law in all the legal systems that are studied originate in classical Roman law, which principally granted a remedy for the recovery of benefits conferred under a tainted cause (the so-called <i>condictio ob turpem vel iniustam causam</i>). Only where both parties were involved in an immoral transaction was recovery barred, according to the maxim <i>in pari delicto potior est possidentis</i>. However, modern law usually applies the bar to recovery not only to immoral but also to illegal transactions. This extension of the bar, as well as its strict legal consequence of completely barring recovery, can lead to overly harsh results. The comparison of two civilian legal systems, Germany and Italy, will demonstrate modern civilian approaches on how to mitigate the strict consequences of the bar. The study of English law identifies a very different approach to the solution of the same problem. The law of the mixed legal system of Scotland started from a civilian basis in this area. However, it subsequently came under the influence of the common law, which received only the bar to recovery, and developed it into a principle of non-recovery in cases of illegality. The thesis argues that it is undesirable to follow the common law influences in the Scots law of unjustified enrichment. Scots law should rather develop its civilian roots and proceed on the assumption that transfers made under immoral and illegal transactions are recoverable in principle. It is also argued that Scots law has sufficient authority to restrict the <i>pari delicto</i> rule to its original scope and thereby apply the bar to recovery only to cases of mutual turpitude.