Category Archives: Authors

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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Does the State Have a Compelling Interest in Searching Device Data at the Border? Emerging Approaches to Reasonable Search in Canada and the United States

by Robert Diab*

(2018) Oxford U Comparative L Forum 1 at ouclf.law.ox.ac.uk | How to cite this article

Courts in Canada and the United States currently hold warrantless and groundless device searches at the border to be reasonable. They do so by assuming the state’s pressing interest in search at the border extends to the search of device data at the border. Apex courts in both nations have yet to address the issue. Yet in recent cases on device searches on arrest (Fearon and Riley) both courts have made holdings about privacy and the state interest in device searches that run contrary to assumptions in the border search cases. In the wake of Fearon and Riley, courts in border cases have conceded the greater privacy in device data but have tended not to question assumptions about the state interest in data search at the border.

This paper examines the development of the law on border device searches in both nations with three aims. The first is to show that governments and courts have not been sufficiently critical of state interest in assessing reasonable border data searches. The second aim is to consolidate critical opinion on the nature of the state’s interest in border data searches, and to add the argument that the state has a less pressing interest in data search here than in the search of a person’s body, calling for a higher standard than reasonable suspicion. The third aim is to demonstrate that in recent reform efforts in Parliament and Congress, lawmakers have begun to question whether groundless border device searches are reasonable but have lacked clarity on state interest. The paper concludes by suggesting that reasonable search should be assessed in this context by foregrounding the question of state interest and taking an evidence-based approach, and that doing so supports a warrant standard.

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A Case for a Customary Right to Privacy of an Individual: A Comparative Study on Indian and other State Practice

by Arvind Pillai, Raghav Kohli

(2017) Oxford U Comparative L Forum 3 at ouclf.law.ox.ac.uk | How to cite this article

Privacy as a concept has been hotly debated with regard to its role in an individual’s personal sphere since antiquity. The inception of international instruments such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, along with institutions such as the United Nations, the Inter-American Commission on Human Rights and the Council of Europe, have made the codification of privacy a global concern. However, despite the inception of these institutions, several states have refused to codify and respect privacy as a fundamental right guaranteed to an individual. Thus, the need arises to highlight the development of a right to privacy as a customary right with the help of widespread state practice around the world. The most recent country to address the question of what status privacy holds in the legislative framework of that state is India. Here a unique identifying number is provided to each citizen based on biometric and demographic information. Known as the ‘Aadhaar’ scheme, this is giving rise to grave concerns about bodily integrity, informational self-determination, and decisional freedom. Indeed, a nine-judge Constitution Bench has just unanimously affirmed that the right to privacy is a fundamental right under the Constitution of India (Justice K S Puttaswamy (Retd.), and Anr v Union of India and Ors (2017) 10 SCC 1)
This article traces the evolution of the right to privacy in India, starting with an exploration of its conception in the Constituent Assembly Debates of the longest Constitution in the world. It attempts to ascertain the intent behind the exclusion of the right to privacy as a fundamental right from the Constitution, and analyses the contemporary position developed by the inconsistent jurisprudence of the Courts in India. Finally, by scrutinizing the practices of states from around the world, it argues that the right to privacy, and in particular data privacy, can be considered a binding principle of customary international law.
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Indigenizing Constitutionalism: A Critical Reading of “Asian Constitutionalism”

by Pranoto Iskandar *

(2017) Oxford U Comparative L Forum 2 at ouclf.law.ox.ac.uk | How to cite this article

The intense rise of the “Rest” has not only significantly wrought the real-world dimensions of the political and economic global landscape, which marked the power shift from the traditional West, but serenely introduced a different kind of intellectualism that challenges the Enlightenment based orthodoxies that have typically supported the liberal tradition. As a distinct scholarly strain, this vantage point of the “other” primarily rests on the binary self-proclaimed indigeneity, i.e. the native values of a society, that eventually challenges the legitimacy of the once well-established notions such as the rule of law, separation of power, secularism and constitutionalism that are the indisputable buttresses of democracy. In that light, this article situates the emerging ni debate on a distinct model of constitutionalism in Indonesia and the surrounding countries as the most current rebellious streak against the liberal constitutionalism. In so doing, more specifically, this article critically examines the application of the indigeneity-based arguments in the context of the discourse on constitutionalism. Rather than speaking for the population that they are purportedly representing, this article finds that the indigeneity-based arguments are no less alien than the liberal model that they despise as both culturally and sociologically estranged.
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