This thesis aims to identify and solve the agency problems in the life cycle of private equity (PE) investment under the commercial law system in China by comparing the legislative and adjudicative practices in the United Kingdom (UK) and other related jurisdictions. Based on transaction cost economics as the theoretical foundation of this research, the agency problems of PE investment derive from the two-level separation of ownership and control, one of which is the principal–agent relationship between the PE investors and the fund manager, and the other is the principal–agent relationship between the PE shareholders and the management of investee companies. As effective institutional solvers to agency problems, fiduciary duties as default rules have been widely developed and practised in common law countries to protect the interests of PE investors. Subject to the strong dependency on judicial practices, however, the economic function of fiduciary duties may not be fulfilled properly in the jurisdictions without a sound and independent judicial system such as that in China. Therefore, the logical purpose of this research was to find a series of feasible and costefficient approaches to reduce the agency costs in governance of three organizational structures that are involved in PE investments under Chinese legal and regulatory regimes, namely the limited partnership, business trust and corporation. As the society and economy of the UK are developed along a free-market and liberalistic ideology, the contractual freedom as the core spirit of the UK‘s commercial law has been widely accepted and recognized in both legislative and adjudicative activities. Thus, both the decision-making rules in PE funds and corporate governance of portfolio companies in the UK are also labelled as showing high respect for contractual autonomy. The protective rules sprung from common law and equity in relation to the laws of business organizations and trusts also provide flexible approaches for reducing agency costs in PE investment. Hence, this thesis especially underlines the reference to, and transplantation of, the contractual techniques of the UK‘s business organization law for enhancing investor protection of the Chinese PE industry, by which the negative impacts of political intervention and uncertainty in judicial practices may be effectively constrained. In addition, in order to make this analysis more comprehensive and objective, this thesis also refers to the institutional transplantation of trusts and corporate governance in not only continental and mixed jurisdictions, but also several typical transitional economies in the world. Based on, and beyond, the aforementioned research, this thesis argues that the basic legal framework of PE has undoubtedly been established in China. This notwithstanding, the strong state capitalistic ideology and authoritarian interest pattern still seriously impede the legal reform towards a more market-directed and investor-protection-oriented institutional construction. In a broader sense, another conclusion may also be put forward, namely that the transplantation of different business organizations across jurisdictions are determined by the distribution of the costs of protecting investors. As a brief model, the costs of investor protection are divided into internal and external approaches; the former refers to the cost of contractual arrangements within business organizations and the latter to the costs that are generated from the judicial and regulatory activities outside business organizations. Based on a detailed economic analysis of the main types of business organizations, this research concludes that 1) when the organizational and non-organizational protective approaches generate equal costs, such an organizational form should be most widely applicable and transplantable; and 2) the success of such legal transplantation depends on whether the gross costs of protecting investors can be reasonably distributed by the organizations and regulatory and judicial systems. The developing path of the commercial law system in China may preliminarily illustrate the above thesis, while more detailed studies may be developed infuture.

This thesis uses a mixed methods approach utilising questionnaires, focus groups and interviews to explore how and why an embedded professional association may act to alter a longstanding trait of its profession. Focussing on the trait of social closure at the English Bar, it uses an access programme (Pegasus Access and Support Scheme - PASS) created by a professional association of the Bar (The Honourable Society of the Inner Temple) as a case study. Social closure occurs through mechanisms controlling access to the profession. Whilst formal and explicit exclusionary strategies existed historically, more informal exclusionary barriers still operate. These indirectly disadvantage those from lower socio-economic backgrounds as they emphasise aspirant entrants’ social capital and habituation to the social norms of the Bar. One way in which these attributes can be assimilated or increased is through mini-pupillage; work experience in barristers’ chambers. PASS provides mini-pupillage opportunities to non-traditional aspirant entrants. More widely, it could be construed as a challenge to exclusionary recruitment practices. However, such a challenge requires that the conceptions of merit underlying exclusionary recruitment practices, as well as the practices themselves, are altered. By maintaining the privilege attached to mini-pupillage, PASS was not as radical as sometimes portrayed. The educational and social contexts of students participating in the programme also influenced its efficacy. A challenge to patterns of social closure requires a collaboration between the professional association’s elite, and salaried staff with specialist knowledge of access and education from other professional backgrounds. This emphasises the role of individuals and agency in such action. Despite the general diminished power of professional associations, there remains potential for innovative action. This is realised when the attributes of the professional association combine with acts of agency by individuals which cause elite influence and alternative institutional logics to mutually reinforce one another.

The question of the thesis is ‘How to enhance the effectiveness of the Vietnamese judiciary in dealing with intellectual property rights cases toward the compliance with requirements of the TRIPs Agreement?’. The critical themes in this thesis are how a developing country at the low level of development as in the case of Vietnam, with various distinctiveness in term of economy, society, culture, politics, or legality can enhance its judicial effectiveness in dealing with IP cases in order to fulfil its international obligations under TRIPs Agreement. Despite the importance of the issue, there has not been any research on the first integration of Vietnamese judiciary in line with international regulations on IPRs protection and enforcement applicable to all WTO member states. This thesis will also examine impacts of this international compliance for the Vietnamese judiciary in particular, and to this South East Asian country in general. After analysing the critical situation of IPRs infringements in Vietnam, which lie behind an impetus for change, the thesis will review the historical development of IPRs and main provisions of the TRIPs Agreement. Next, the thesis will examine the definition of judicial effectiveness in special reference to minimum standards as provided in the TRIPs Agreement. I will argue that judicial effectiveness in enforcing IPRs can not be improved to comply with the TRIPs Agreement unless judiciary’s capacity in preventing and deterring IP infringements, judicial organisation and knowledge, and other factors involving legal procedures are enhanced. In the light of above analysis, I will analyse the judicial organisation and legal knowledge in dealing with IP cases, and the adequacy of legislation concerning judicial measures for IPRs enforcement. I will also argue that any content of the reform of Vietnamese judiciary to comply with TRIPs Agreement must take into account, inter alia, the distinctiveness of Vietnamese judiciary, and other unique factors of this country in terms of its economy, society, politic and culture.

This thesis centres on the principal question of the existence of intellectual property law between 1945 and 1994 in Vietnam, and related issues that flow therefrom. A common orthodoxy held that there was no real intellectual property law in the country until the early 1980s, and that the law has been a feature of the Vietnamese legal system only since 1981. This common belief is shared by an absolute majority of scholars, lawyers, and practitioners, both domestic and foreign, who have studied the intellectual property law of Vietnam. This thesis will seek to disprove that belief by drawing on extensive archival evidence, to reconstruct, for the first time, a unique, ignored system of laws regulating copyright, patent, and trade mark, among other kinds of intellectual property protection, in existence between 1945 and 1994. In fact, the existing system of intellectual property law was composed of two main sources. The first component part is comprised of a large corpus of colonial laws from France and a small number of indigenous provisions developed by local governments modelled after the French laws, as well as a unique and local common law practice in relation to intellectual property rights which has been recorded since the seventeenth century. This part of the system dated as far back as 1864 and lasted theoretically until 1955 within the context of a colonial and semi-feudal society. The second part, addressed in the principal part of this thesis, is the theory and practice of socialist law. This part was introduced into Vietnam as early as 1945. At first, it was a supplementation to the established, continued body of colonial laws but, subsequently, from the late 1950s, it evolved to become the principal system, replacing the old laws within the framework of socialist legality, upholding the dictatorship of the proletariat and a centrally planned economy. Since 1986, Vietnam has embarked on a radically different route to develop intellectual property law in compliance with various bilateral and international intellectual property and free trade treaties. Consequently, this socialist intellectual property law was finally displaced as of 1994, as the result of various reforms driving the country towards a market-based economy under a rule of law state.

This thesis is the conclusion of doctoral research that pursued to examine whether indigenous peoples’ demands for access to their cultural practices can be accommodated within criminal law. In a globalised context in which states become increasingly multicultural this question raises fear of social fragmentation and the anxiety for achieving unity. Certainly, Rwanda and Kosovo evidence that claims to access culturally diverse practices may lead to war or even genocide. The context of the thesis is a more benign form of response to these claims: accommodation. While accommodation in general has received great attention from scholars (Kymlicka 1989, Gutmann et al 1994, Tully 1995), within criminal law the only focus has been cultural defences (Renteln 2004, Kymlicka et al 2014). However, little research has been conducted to understand the broader implications of this phenomenon for both the accommodated and the accommodating. The research aims to shed light on these broader implications of accommodation by exploring it within criminal law. Certainly, the simplicity and individualised nature of cultural defence conceals what is at stake for both the accommodated and the accommodating. Specifically, it conceals how criminal law cannot be responsive to the claims of minorities because it seeks to maintain the practices of the constitutional order of which criminal law is part. The result is that the claims of indigenous peoples cannot be accommodated. In order to uncover these implications, the research employs social holism (Pettit 1998) to develop a broader understanding of criminal law as a socio-cultural practice, which enables an adequate description and assessment of the diversity of claims to recognition that minorities make to the state of which they are part. In broadening the view the claims of minorities become linked to their position within the constitutional order (Tully 1995), and then the question arises as to whether minorities have been unjustly excluded or included (Lindahl 2013) in that order, which may lead to recognise a new plurality of responses that the state and its criminal law should provide to them. By broadening the understanding of criminal law it is enabled an adequate framework for the assessment of the phenomenon of accommodation. Certainly, this is necessary for claims to access diverse cultural and social practices to be met with justice, for the state’s responses need to be sensitive to the diversity of claims put forward by minorities, without overlooking that the state as well need to access its particular social and cultural practices.

This thesis addresses the question how best to interpret the exceptions to the equality in employment principle afforded in Great Britain to religious employers. There is significant ambiguity surrounding the application of these exceptions, aggravated by a paucity of case law and a divergence in understanding as to the relative significance of job function, context and organisational ethos. The exceptions lack any clear foundational principle and therefore norms to guide their interpretation are urgently needed. The thesis begins by seeking a modern justification for safeguarding the autonomy of religious groups in an era that may be characterised by a decline in the ‘religiosity’ of the British public and an increase in the influence of human rights and equality narratives. Such a justification is located in the human dignity and autonomy rationale for religious freedom. Against this background, I argue that, by applying a particular understanding of freedom of association to their interpretation, the exceptions could helpfully be regarded as permitting discrimination to preserve an employer’s ethos for the benefit of members of a religious group. At present, the significance of employer ethos is underdeveloped in the jurisprudence on the exceptions. A purposive approach which treats the exceptions as derogations from the equality principle, justified by freedom of religious association, could encourage a deeper insight of employers’ needs and an assessment of claims on the exceptions in the context of the interests protected by rights of association. Fuller engagement with balancing religious association and equality rights could be achieved through recognising that the exceptions derive from qualified rights and through requiring employers to act proportionately. Including the concept of ‘accommodation’ in the proportionality analysis could, moreover, assist with fostering an environment in which due regard is given to the dignity interests affected by discrimination. My argument is informed by comparative study of the equivalent law in Canada and the USA. Attention is drawn to the ambiguity in the British employment exceptions by consideration of the equivalent US and Canadian models. Whereas in these models, church and state relations and freedom of association, respectively, have been recognised as significant, the introduction of the British employment exceptions has been influenced by a patchwork of factors. My argument is further informed by a series of interviews with religious employers, which revealed mixed opinions on the exceptions and offered a valuable insight into the importance of ethos to employment practices and relationships.

Directors’ duties of care and loyalty and their enforcement by derivative action, are important elements in the company law system. Such mechanisms are introduced to ensure that directors are subject to a satisfactory level of accountability and control while managing a company. This research employed the comparative law approach to identifying problems in, and to proposing reform for, the Saudi Arabian law of directors’ duty to act with care and in good faith in the company’s general interests, and to avoid conflicts of interest, with particular focus on the corporate opportunities and self-dealing transactions and the Saudi law of derivative actions. The main objective of this study was to propose a reform of Saudi law of directors’ duties and of derivative actions. By using the company law of the United Kingdom (UK) as benchmark, this study evaluates the clarity, certainty and accessibility of Saudi law and identifies weaknesses and deficiencies. The feasibility of transplanting selective legal ideas and rules from the UK company law to its Saudi counterpart in order to develop a framework for legal reform in Saudi Arabia is examined. The argument here is that the Saudi law of directors’ duties of care and loyalty and derivative actions suffers from serious deficiencies, despite the introduction of the new Companies Law of 2015. While the new Saudi Corporate Governance Regulations 2017 have tackled some issues in the areas of directors’ duties, there is still room for improvement. The uncertainty in the law of directors’ duties and enforcement is sufficient in itself to justify the reform of law. Moreover, the limits of other legal and non-legal mechanisms of accountability in the Saudi context suggest that alternative mechanisms would not adequately ensure the accountability of directors. Throughout the examination of the feasibility of reform by way of legal transplantation, the study takes into account that the UK legal model is only transferable if it can be adapted to fit within the institutional structure and legal environment in Saudi Arabia. This is necessary to ensure proper reception of foreign rules by the new environment of the host country. The finding is that transferability of most UK legal models and rules is feasible. Throughout this consideration of a reform agenda for the Saudi law of directors’ duties and derivative actions, the research has been guided by a policy that requires striking a balance between the need to increase directors’ accountability and the need to protect the directors’ exercise of their managerial authority.

The social sciences are often thought to be inferior to the natural sciences because they do not have laws. Bohman writes that “the social sciences have never achieved much in the way of predictive general laws—the hallmark of naturalistic knowledge—and so have often been denied the honorific status of ‘sciences’” (1994, pg. vii). Philosophers have suggested a number of reasons for the dearth of laws in the social sciences, including the frequent use of ceteris paribus conditions in the social sciences, reflexivity, and the use of ‘odd’ concepts. This thesis argues that the scarcity of laws in the social sciences is primarily due to the concepts that social scientists often work with. These concepts are described as Nomadic and are characterised by disagreement about what can reasonably be included within the scope of a concept. The second half of the thesis explores the implications of this analysis. It argues firstly, that counterfactual analysis is problematic when using Nomadic concepts. Secondly, it argues that taking an intentional perspective on behaviour often involves the use of Nomadic concepts so, if social scientists do hope to formulate laws, then they are more likely to succeed if they focus on behaviour that is not intentional.

This thesis investigates the life histories of Crown Court clerks between 1972 and 2015, and has uncovered unheard testimonies of the lived world of law. Drawing on 21 oral history interviews, it is posited that the Crown Court clerk was a pivotal player in the legal system during this period and their contribution to the performance of law has been largely neglected. Though they did not enjoy the economic, social and cultural capital of judges and barristers, or play a central role in the construction and determination of legal issues in hearings, they were chiefly responsible for the smooth functioning of the courtroom, and were constantly working to maintain order and facilitate the flow of proceedings. Court clerks can be characterised as stage managers of the courtroom drama in the sense that the onus was upon them to ensure that all the various props and parties were assembled in the courtroom at the right time, and to direct defendants, witnesses and jurors as to where and when to sit, stand, and what to say at the appropriate moment. Moreover, this thesis asserts that alongside judges and barristers, court clerks were active agents in the perpetuation of traditional practices through their use of official and formal codes of dress, speech and behaviour, and can be perceived as custodians of continuity. This finding is particularly interesting in light of scholarly accounts that have identified a period of radical change to the administration of justice following the founding of the new Courts Service in 1972. It is contended that Crown court clerks were not merely complicit in, but strongly supported a highly ritualised performance of justice. In so doing, they contributed towards upholding the authority and legitimacy of the criminal justice system in ways that have been largely unacknowledged.

This thesis examines the means by which corruption sustains itself in the relationship between business and the tax system. It is predicated on a desire to understand the possibility of sheltering the relationship from corruption and other similar societal challenges. It relies on the intuition that certain structural elements of this relationship permit the infiltration and sustenance of corruption. With the aid of both qualitative and quantitative data obtained from empirical research in Nigeria, it constructs a model that exposes these structural elements. This thesis argues that a ‘two-way relationship’ between businesses and the tax system not only exists but is anchored in the interaction between the actors (businesses, tax policymakers, tax law-makers, tax administrators and tax arbiters) that represent both institutions. It explores four mechanisms (‘access’, ‘awareness’, ‘distortion’ and ‘inaction’) that affect the interaction and consequently the relationship between business and the tax system. It also addresses the difficulty in defining corruption by adopting a process definition of this phenomenon. In this definition, the tag ‘corruption’ applies where an act or state of affairs and the gain derived therefrom breach the expectations of the legal, economic, political or moral dimension of a given society. This thesis then argues that corruption sustains itself in the two-way relationship by exploiting a ‘power gap’ between the actual and institutional powers of actors in the said relationship. It defines the ‘institutional power of actors’ as that which accords with the institutional limits of their social setting. An actor’s ‘actual power’, in contrast, refers to that which the actor may exercise in any given circumstance. This power gap is potentially increased or decreased by the levels of the four mechanisms in the relationship. Therefore, any real effort to tackle corruption in the relationship between businesses and the tax system must seek to address these four mechanisms in a manner that limits the power gap and opportunities for corruption. The concept of the power gap and its four mechanisms is a novel approach to understanding and tackling corruption. It aspires to support the design of tax systems with the capacity to adequately balance competing interests, especially in countries where corruption is endemic.