The European Union recently adopted a Defence Procurement Directive. Designed to regulate an internal market for defence material, the development is highly controversial. For many years, the U.S. has received privileged access to the national defence markets of the Member States. A lack of competition has resulted in stagnated markets with decreased increased possibilities of dependence on the U.S. In respective to the Directive, U.S. commentators have identified the possibility for its provisions to discriminate against U.S. contractors. This forces a fundamental assessment of the role of legal institutions which regulate transatlantic defence trade. This thesis aims to subject the EU and U.S. defence procurement regimes to critical description and analysis.

This thesis considers the question ‘who is a refugee’ and suggests how one might answer this in the context of international refugee law. The theories of Robert Alexy’s are adopted as a lens through which to reconstruct refugee law. The case for viewing human rights as worthy of special protection is put forward and the implications for refugee law are considered. It posits a special status for human rights that gives refugees’ claims high priority. This rejects the notion that states have absolute discretion to control borders. This claim is strengthened when one considers the nature of the claim to human rights protection made by refugees: protection from persecution. This ties refugeehood to political legitimacy, a concept evolving through notions such as Responsibility to Protect, to demand higher standards of human rights protection. This, in turn, requires the Refugee Convention to evolve to maintain its protective scope. This thesis will use notion of collective violence to demonstrate that article 1(2) is conceptually capable of supporting this required expansive notion of ‘refugee’ whilst retaining the boundary between ‘refugee’ and ‘refugee-like.’ It will show also how this reconstruction of refugeehood dismantles many of the obstacles to recognition facing female refugees.

Taciturn bills of rights and constitutions – texts that express concepts at high levels of abstraction or which do not provide much guidance in other ways – pose challenges for courts responsible for determining their meaning and applying them. This dissertation aims to identify the approach that might be taken by courts in Commonwealth jurisdictions with written constitutions. It argues that the starting point is the legislative intention underlying the text, and that the preferred conception of such an intention is moderate originalism. This requires ascertainment of the meaning the legislators imbued the text with through their choice of words at the time the constitution was enacted, but which recognizes that parts of the text may be interpreted dynamically where language connoting abstract moral principles has been employed. The dissertation distinguishes constitutional interpretation from constitutional construction. Interpretation involves identifying the semantic content of a constitutional text, and to do so courts should consider the linguistic, purposive and applicative meanings of terms and provisions. Where interpreting the text does not yield any useful or complete legal rule, the court must engage in construction by applying legal principles and techniques such as the presumption in favour of generosity, the use of constitutional implications, and a proportionality analysis. Thus, any constitutional ‘silence’ is in fact not so silent after all, as it may be given voice by the court.

No description available.

No description available.

This thesis investigates the sustainability of constitutional review practised in the Hong Kong Special Administrative Region (HKSAR) within a broader political and legal system of the People’s Republic of China (PRC) in post-1997 era. Theoretical questions regarding the compatibility and workability of this type of review have been raised, particularly with respect to the constitutional interpretation of the Hong Kong Basic Law. Setting the scene against the background of thirteen years of implementation of the Hong Kong Basic Law, this thesis examines the challenge presented both to the HKSAR and the Chinese authorities working within the frame of ‘one country, two systems’. It examines practical and theoretical aspects of the interpretation of the Basic Law and of the nature of this unique constitutional relationship between the HKSAR and the PRC. This thesis explores the constitutional relations between the PRC and the HKSAR through the lens of constitutional jurisdiction of the Hong Kong Basic Law, whose interpretation has triggered huge debate in both Hong Kong and mainland China. This thesis finds that the cause for the disparity over the interpretation issue has its origins in the understanding of the fundamental concepts of sovereignty and constitution. The thesis concludes that the Hong Kong Basic Law provides the frame for a new type of constitutional relationship between the PRC and the HKSAR. The Basic Law does not solve the constitutional questions raised but rather serves as a basic framework through which the Central Authorities of the PRC and the HKSAR are enabled to evolve in an on-going process of constitutional norm-formation. My research also aims to contribute to the study on the special constitutional arrangements under the circumstances of Chinese political theory and legal system, and to offer reflections on the road towards constitutionalism in China.

This thesis endeavours to answer the following question: is there a viable and workable model for regulating workplace grievances and disciplinary action (EDG), the end objective of which is enhanced business competitiveness by encouraging partnerships at work, or greater levels of organisational commitment behaviour? This thesis argues that the answer to that question may be yes, if the regulation applied can encourage employers to deal with EDG in a way that employees are likely to perceive as fair. This is a challenging objective for law makers. Current regulation of EDG does not and probably cannot achieve the high levels of fairness perception that the partnership model requires. This thesis argues that, in order to rectify this problem, there must be a shift away from formulating employment regulation with a blinkered eye on worker protection, and towards a more sophisticated model which views worker protection against unfair treatment as beneficial in-so-far as it promotes fairness perceptions, and the resulting benefits of a productive and innovative workforce. This recalibration of the regulatory compass calls for a legal framework which allows the parties to formulate a reflexive and self-regulating approach to EDG; a framework according to which the parties will work to prevent and resolve disputes in a manner which accounts for their particular working environment, and the unique circumstances of each dispute or grievance. The new regulatory model that is proposed in this thesis will provide employers with the opportunity to be immune from the tribunals‘ jurisdiction relating to EDG. Immunity will apply where the employer can demonstrate that they have in place and follow certain methods and practices for managing EDG which are likely to lead to fairness at work, and therefore a higher degree of fairness perceptions.

This thesis explores and explains the development of the Creative Commons (CC) as an alternative to mainstream copyright protection. it argues that the distinctive characteristics of CC as a license based, configurable form of meta-regulation can be explained by consideration of the disciplinary background of the movement's founder (Lawrence Lessig) and as a consequence of the particular mode of development it undertook (e-mail discussions as commonly used in the arena of software development rather than traditional legal discussion) as well as the influence of a variety of pre-exisiting regulatory forms. The second part of the research reviews the inputs from multiple existing regulatory structures such as the Free Software Foundation and the Open Content movement, and de-constructs the process by which the CC is developed in practice. The thesis analyzes the trajectory of CC from a licensing project to a political project, the structural elements of the CC licences and the decision making process of their creation and development. This analysis helps to explain the apparent inconsistencies that have been expressed about the CC project and shows how Lessig's perspectives on regulation and meaning construction contribute to the empowerment of the creator and the attempt to provide regulatory tools instead of regulatory solutions. The thesis argues that imbalances in the existing Copyright system are symptoms of deeper structural problems of distantiation of the regulated subject from the process of regulation construction. CC therefore becomes an effort to increase access to the regulatory process and as a result ignites the creation of the Commons. instead of the regulation to be enforcing its normative content on the creative practice over the Internet, the CC approach allows the reverse to happen. The intellectual or creative commons are thus achieved as a secondary result of the ability to access the regulatory commons.

The emergence of free and open source software (FOSS) has posed many challenges to the mainstream proprietary software production model. This dissertation endeavours to address these challenges through tackling the following legal problem: how does FOSS licensing articulate a legal language of software freedom in support of large-scale collaboration among FOSS programmers who have to face a rather hostile legal environment underlined by a dominant ideology of possessive individualism? I approach this problem from three aspects. The first aspect examines the unique historical context from which FOSS licensing has emerged. It focuses on the most prominent “copyleft” licence—GNU General Public Licence—which has been shaped by the tension between the MIT-style hacker custom and intellectual property law since the 1980s. The second aspect tackles the legal mechanism of FOSS licences, which seems not dissimilar from other non-negotiated standard-form contracts. My analysis shows that FOSS licences do not fit well with the neoclassical contract model that has dominated software licensing jurisprudence so far. I therefore call for replacing the neoclassical approach with Ian Macneil’s Relational Contract Theory, which has remained conspicuously absent in the software licensing literature. The third aspect explores FOSS programmers’ authorship as manifested in FOSS licensing. It argues that the success of a FOSS project does not merely depend on the virtuosity of individual programmers in isolation. More importantly, a core team of lead programmers’ efforts are essential to channel individual authors’ virtuosity into a coherent work of collective authorship, which can deserve credit for the project as a whole. The study of these three aspects together aims to create a synergy to show that it is possible to graft a few collaborative elements onto the existing legal system—underpinned by a neoliberal ideology assuming that human beings are selfish utility-maximising agents—through carefully crafted licensing schemes.

The fundamental aims of this thesis is to demonstrate problems regarding key forms of liability formulated under the Fair and Equitable Treatment Standard (‘FET’ hereinafter). These are problems that are likely to occur for developing countries who are attempting to prevent future breaches of the same type illustrated in the current jurisprudence, through developing appropriate responses. Principal Propositions: This thesis will propose the following regarding the FET standard: 1. The FET standard has been used to create rules. 2. The rules created under the FET standard operate on state institutions and state policy creating a framework of administrative liability that is unique as it operates without classic constitution constraints. 3. This form of unique administrative liability of FET confers a governance role on arbitrators, to control state institutions and policy sanctioned by liability, through transplantation of administrative law into the investment treaty framework. 4. This unique administrative liability is applied to developing countries through the investment treaty framework. 5. For reasons of lack of coherence of this unique administrative law and problems faced by developing countries accommodating legal transplants in the law and development movement; developing countries, those most likely to face administrative law claims, may not be able to comply with this unique administrative law. 6. If FET is to create unique rules of administrative liability, investment treaty arbitration must alter its current institutional approach to dispute-resolution under FET in order to, increase legal certainty, be sensitive to both problems faced by the law and development movement regarding legal transplantation and be aware of reasons why national courts may operate with constitutional constraints. Brief Note on Methodology Tudor’s work on the Fair and Equitable Treatment Standard gives a comprehensive account of the origins and content of the standard.1 The aim here was not to repeat on what was done there but to initial key questions of acceptability regarding the content. Hence although a ten year period of jurisprudence is surveyed, between 1999- 2009, the aim here as been to predominantly highlight not only inconsistencies to deal with the important issue of coherence, but also to demonstrate the impact such interpretations may have on investment treaty arbitration as a system of rule-making, along-side issues of compliance of the content by developing states. To this end some focus is given to the following questions, which are considered questions of fundamental importance to the viability of the approach of rule-making under FET in the analysed period: What does this system of rule-making seek to do, and can it achieve those ends? If not, how can it be improved in such a role, if feasible, or is it realistic to detach such a role from it? Hence the method here is to survey the cases and illustrate what rules the FET standard is creating. Then it is to highlight whether these rules can be identified by those who may rely on them, investors, and those who face a burden under them, states. Critically, this approach does no t weigh approaches in the jurisprudence according to chronological patterns. This is fundamentally because this system was not designed to be a rule-making institution. Thus at present all decisions are of equal validity through both the existing method of identifying sources of international law and a procedural omission of a system of precedent governing what decisions take precedence over others. It is felt that to do this would be not only to create a criteria that does not exist as a matter of law, and to do so would be, as a matter of international law, wrong. It would also undermines the flexibility of afforded to the system of using a vast jurisprudence of international decisions, including previous investment treaty disputes, at its disposal in order to formulate arguments and judgments for both parties and adjudicators, respectively. My approach as outlined above, is thus to bring to the surface key positions in FET jurisprudence that illustrate the scope or rights available under three elements of it: (i) Legitimate Expectations; (ii) Transparency and (iii) Denial of Justice. Under first two, as it shall be seen, claims are posited predominantly with respect to acts of organs of the state. Under the third claims exist with respect to institutions and processes that may exist to deal with the investor’s complaints. These elements are chosen as they form the bulk of the current issues dealt with under FET, and due to a limitation of space available here to address the above key questions. The above three elements shall form an empirical basis in order to formulate a discursive and critical narrative that seeks to address the key questions. The steps in this process are outlined briefly below: Stages of the Argument: 1 I. Tudor, The Fair and Equitable Treatment Standard in the International Investment Law (OUP) (2007).The argument proceeds in the following stages: Chapter 1 explores the distinction between adjudication and norm-making, arguing that FET is used to make rules by arbitrators. Chapters 2 to 4 look at the following rules applied by the FET standard: legitimate expectations, transparency, and denial of justice. Chapter 5 and 6 discuss the implications of legitimate expectations and transparency on both investment treaty arbitration and developing countries, and any difficulties that may be encountered in practice. Chapter 7 proposes changes that may assist in dealing with these difficulties.