Category Archives: Authors

Extending Social Protection for Migrants under the European Union’s Temporary Protection Directive: Lessons from the War in Ukraine

by Julia Motte-Baumvol*, Tarin Cristino Frota Mont’Alverne**, and Gabriel Braga Guimarães***

(2022) Oxford U Comparative L Forum 2 at ouclf.law.ox.ac.uk | How to cite this article

The war in Ukraine has brought about an unprecedented change in the way the European Union addresses migration-related issues. Following the invasion of Ukraine by Russian forces in late February 2022, the Council of the European Union adopted an Implementing Decision establishing the existence of a mass influx of displaced persons from Ukraine within the meaning of Article 5 of Council Directive 2001/55/EC, for the first time activating its temporary protection mechanism. While the Directive’s provisions reflect the founding principles of the European Union, the specific vulnerabilities of international migrants require suitable social provisions to afford them a standard of living as required to ensure their health and well-being for the duration of the protection provided by the Directive. The purpose of this article is to discuss the nature of the challenges arising from this first application of the ‘Temporary Protection Directive’, as well as the impact of these challenges on the Directive’s efficacy and on the scope of the protection for the displaced persons covered by it. It argues, first, that the joint interpretation of the Directive and the Council Decision significantly limits the personal scope of the protection, leaving certain categories of migrants behind. The paper then goes on to examine the Directive’s substance and suggests that a broad interpretation of its social protection provisions reveals new difficulties regarding the financing and sustainability of this protection and its sustainability.

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One set of principles to rule them all? Parliamentary practices in France and the United Kingdom

by Marie-Elisabeth Boggio*

(2022) Oxford U Comparative L Forum 1 at ouclf.law.ox.ac.uk | How to cite this article

This paper is a short overview of my research on parliamentary practices and the comparison I make between practices in the French Parliament and in the UK Parliament. We know that both are governed by written rules. On the one hand, the UK Houses of Parliament are run according to Standing Orders and certain Parliament Acts. On the other hand, the French Chambres are governed by Internal Rules and several organic laws which are enforced by the Conseil constitutionnel(Constitutional Council). But these written rules are not enough to describe precisely and comprehensively the running of Parliaments: more rules are needed to govern the respective Houses/Chambres. These rules are unwritten and we call them “parliamentary practices”. This paper will describe the concept of “parliamentary practices”, a category on which little research has been carried out, at least in France. It will also explain the reason why a comparison between France and the United Kingdom might be of interest on this topic. Finally, there will be a comparative study of some practices to demonstrate their significance for parliamentary proceedings in both countries.

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The Case for Market for Corporate Control in Korea

by Hwa-Jin Kim*

This article is published simultaneously in 8 Journal of Korean Law (2009) 227-276.

(2009) Oxford U Comparative L Forum 2 at ouclf.law.ox.ac.uk | How to cite this article

Abstract

This Article offers an assessment of the preliminary evidence that the market for corporate control functions as a disciplinary mechanism for poor corporate governance in Korea. It analyzes SK Corporation’s fight against Sovereign Asset Management, contest for control over the Hyundai Group, KT&G’s fight against Carl Icahn, and LG Group and Carlyle’s proxy contest against Hanaro Telecom, together with relevant laws and regulations. These high-profile cases dramatically exemplified the role of takeovers in the improvement of the corporate governance of Korean companies, and brought about active policy discussions in respect of the market for corporate control and takeover defenses. This Article will also provide a quick overview over the provisions in draft new Korean Commercial Code related to the market for corporate control and takeover defenses, including squeeze-out, poison pills, and dual-class commons. This Article argues that as the increasing exposure of control to the market could eliminate the inefficient controlling shareholder system in Korea, the new Korean Commercial Code should strike a balance between the active market for corporate control and effective takeover defensive tactics for the benefit of all shareholders and the value of the company.

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‘But We’ve Spent the Money’: Defending Overpaid Tax Claims under English and German Law

by Sabrina Nanchahal*

(2020) Oxford U Comparative L Forum 3 at ouclf.law.ox.ac.uk | How to cite this article

Despite extensive litigation concerning restitution claims against the tax authority in the English courts, the role and parameters of the change of position defence have not been satisfactorily established in this context. German law provides a clear example of how these issues can be addressed within a public law restitution framework. This article explores the conceptual basis for the German position before turning to the current English framework. An analysis of the application of the defence according to unjust enrichment principles emphasises the practical and conceptual difficulties the English courts have faced in such claims. In light of these issues, two alternative potential developments of the defence are examined with the aim of achieving a conceptually cohesive common law restitution framework.

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Conflicts in 13th Century Maritime Law: A Comparison between five European Ports

by Albrecht Cordes*

(2020) Oxford U Comparative L Forum 2 at ouclf.law.ox.ac.uk | How to cite this article

Almost simultaneously, at the end of the 13th century, maritime laws were being written down all around Europe. This invites a synchronic comparative study. This paper compares three areas of maritime law of varying levels of abstraction: jettison, seamen’s labour law, and common decision-making before and during the voyage. The outcome, as in any comparison, is differences and similarities – differences in the degree of the lord’s (king’s, duke’s) influence, who, for instance, ordered the presence of a ship notary on Mediterranean seafaring. The maritime laws less influenced by the heavy hand of the state abound in casuistic details, evidently being the product of the process of negotiations – negotiations which included the seamen, an influential and forthright group indeed. Despite all the natural differences within the vast space between Norway and the Mediterranean, the challenges posed by the characteristics of seafaring in general are quite similar. The solutions, however, differ greatly and bristle with creativity and variety. The maritime law of the 13th century looks like a gigantic legal laboratory in which experiments were conducted continuously. Tendencies towards a stronger unification and implementation of specific solutions only cropped up in the following century.

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Coronavirus measures in private law: Comparison of moratoria in the United Kingdom and Germany

by Johannes Ungerer*

(2020) Oxford U Comparative L Forum 1 at ouclf.law.ox.ac.uk | How to cite this article

The Coronavirus pandemic poses unprecedented challenges to private legal relations. These challenges demand that States provide measures that go beyond traditional private law responses such as force majeure, material adverse change or frustration. Enacting moratoria is among the steps which have been undertaken by the United Kingdom and Germany to provide necessary ‘breathing space’,[1] and is the subject of this comparative paper.
The paper will begin by looking at the general modifications in private law that have been made in response to the Coronavirus pandemic. This will be followed by an analysis of tenancies, which have been given special protection by legislators. Finally, the consequences for borrowers are addressed. The purpose of this paper is to inform about the recent legislative actions taken. This might not only be instructive for their evaluation and future amendment, but also for questions arising in cross-border settings.

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Keynesian Federalism

by Michael Ilg*

(2019) Oxford U Comparative L Forum 4 at ouclf.law.ox.ac.uk | How to cite this article

This Article proposes a Keynesian inspired approach for the judicial interpretation of economic federalism. Keynesian federalism is premised upon two essential features of Keynesian economics: reactivity and counterbalancing. Federal governments may require increased powers to meet modern challenges, but the judicial rationales and methods of interpretation that permit for this expansion cannot simply be replicated case after case in a way that steadily hollows out regional powers. When a federal government is able to capture increased powers of economic regulation in a federalism dispute, a presumption should arise that in the next major economic federalism dispute a decentralization favouring constitutional interpretation will be privileged. 

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Optimising Your Holiday: A Proposal for the Optimal System for Timesharing from a Comparative Perspective

by Dhurgham Fadhil Hussein Al-Ali,* John Gwilym Owen** and Marie Parker***

(2019) Oxford U Comparative L Forum 3 at ouclf.law.ox.ac.uk | How to cite this article

Timesharing causes profound issues for consumers, yet there is a dearth of academic commentary about this topic, and little is known about how other jurisdictions regulate this area. This article will assess the issues faced by consumers when purchasing, owning and terminating timeshare. As a result of this assessment, the optimal features required to tackle these difficult issues are suggested. These optimal features are applied to selected jurisdictions in order to undertake a functional analysis. The article identifies the strengths and weaknesses in each system under consideration, and makes specific proposals for England and Wales.[1]

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Religious constitutionalism: An Indonesian-esque interpretive venture

by Pranoto Iskandar*

(2019) Oxford U Comparative L Forum 2 at ouclf.law.ox.ac.uk | How to cite this article

Is secularism dead? Many have argued that, as a path, secularism provides nothing but a dead end. Whether one likes it not, however, it is hard to rationally deny the desirability of having secularity as the ideal condition for national political contestation. From that vantage point, this paper argues that the alternative religious-friendly model that is based on pan-religious values has also failed miserably. In contravention of scholarly orthodoxy, the paper posits secularism is, in fact, the early Javanese nationalist’s endgame. Secularity is implicit in Javanese “political theory,” and, thus, it is natural to assume that for the early nationalists, secularity was important for the national effort of “getting to Denmark.” Unfortunately, Indonesia’s temporary accommodation of religion as a solution to the Islamists insistence has somewhat become fossilised in the political system. Furthermore, the Indonesian experiment with the moderate wall of separation has, disturbingly, encouraged more religious parochialism to be smuggled through indigeneity-based claims. More importantly, it has also set political reform back.

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On the Diverging Conceptions of Fairness in English and Bulgarian Contract Law: The Peculiar Transformation(s) of Roman Causa

by Radosveta Vassileva*

(2019) Oxford U Comparative L Forum 1 at ouclf.law.ox.ac.uk | How to cite this article

This paper examines the distinct roles, which the Roman doctrine of ‘causa’ acquired in English and Bulgarian contract law, to challenge popular beliefs entertained by common law and comparative scholars and to demonstrate the peculiar mechanisms through which the conception of fairness in contract law evolves. While leading contemporary English scholars argue that the doctrine of consideration is a unique common law doctrine, an historical inquiry reveals that it is a direct descendant of Roman ‘causa’, which also made its way into continental systems. At the same time, many comparative scholars assert that, despite differences that may exist on the surface, the common law doctrine of consideration and the continental doctrine of ‘cause’ often reach the same results in similar circumstances. By using Bulgarian law as a case study, which has been subjected to the competing influences of Romanistic and Germanic legal traditions, this paper shows why this argument is misleading. Notably, in England, consideration remains primarily a question of form. In Bulgaria, however, turbulent political changes have created opportunities for scholarly and judicial activism. Thus ‘causa’ was moulded into a powerful tool against substantive unfairness in agreements which courts rely on even in modern times.

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