Law Theses

This thesis explores the issues of sovereignty and deference involved in the judicial actions around WTO dispute settlement, focusing on two research questions that whether the WTO tribunals have infringed the WTO Members’ sovereignty and whether the Members’ courts have appropriately responded to WTO rulings. The WTO tribunals’ approach to national law interpretation and national courts’ approaches to WTO rulings are selected to instance the research questions. Accordingly, the thesis is divided into two parts. The first part is about the WTO tribunals’ characterization of national law interpretation and the methods of interpretation. National law is usually considered as within the domain of a state, so is national law interpretation. If national law interpretation is characterized as a question of law, it means that the WTO tribunals would undertake a de novo review of national law. If characterized as a question of fact, it implies that the WTO tribunals should attribute deference to the legislating states’ interpretation of their own law. Likewise, the methods employed by the WTO tribunals to interpret national law should correspond to the characterization of national law interpretation. By examining the characterization and the methods, the WTO tribunals approach to national law interpretation will be disclosed. The second part is about direct effect and indirect effect of WTO rulings in national courts. The EU and the US are selected as examples to provide the basis of discussion. Both the EU and the US courts deny direct effect of WTO rulings, and the denial brings about negative effects. Meanwhile, there are also justifications for the denial. How to understand the denial of direct effect deserves consideration. As to indirect effect of WTO rulings, the EU courts recognize indirect effect under certain circumstances. While the US courts seem resistant to indirect effect. Why the EU and the US courts provide different degrees of respect and deference to WTO rulings also deserves examination. By research in the first and second parts, a full picture about the scenario of judicial interactions around the WTO dispute settlement will be revealed.

This thesis explores auditor civil liability towards the company and third parties in Saudi Arabia and selected common law countries. In Chapter One, the researcher outlines the methodology adopted to conduct this study using descriptive analysis as well as both doctrinal and comparative approaches. Chapter Two will present the nature of auditor civil liability towards companies and third parties in Saudi Arabia based on Islamic law of tort and modern legislation. Chapter Two also argues that as of 2020 the Saudi judiciary has struggled to cope with issues raised in common law countries due to the complexity of existing Shariah principles and regulation, the lack of understanding among judges and legal practitioners of shareholders’ right to be indemnified that may lead to a weak litigation culture. However, the Chapter identifies a few legal provisions and established Islamic principles that would entitle shareholders to be indemnified on behalf of their corporation through personal and class actions if the company refuses to file the suit for their benefit. Despite the fact that there is no specific article showing how a court can determine the proper damages suffered by shareholders, the researcher has designed mathematical formulae to assist Saudi judges in this respect considering Saudi legal regulations and Islamic principles. A better understanding on how Islamic principles and legal provisions operate, will hopefully assist and benefit judges, practitioners and litigants. This thesis argues in Chapters Three and Four that common law principles with respect to auditors’ civil liability to third parties, and more particularly to shareholders, are not satisfactory from the Saudi perspective. Chapter Three is focused on theories of auditor liability towards third parties, with a focus on the United States of America (US), perhaps the first country with a clear precedent in this respect. Chapter Four then looks at England where two contrasting cases with respect to the liability of the auditor, and some other related cases, are examined. Chapter Four also investigates auditors’ civil liability towards third parties in other common law jurisdictions that follow the approaches adopted in the US or in England either completely or partially. Since, in practice, the availability or non-availability of insurance to indemnify auditors against liability to shareholders and others has a significant impact on the topic under review in this thesis, Chapter Five then goes on to discuss the nature of Takaful - “an Islamic form of insurance” - and compares it to from conventional (western) insurance, and as well as the challenges that the Islamic model faces in Muslim majority and Muslim minority jurisdictions. Chapter Six develops that discussion by examining conventional liability products and exposing their limitations in providing appropriate protection and indemnification for those insured. Chapter Seven, draws together the key arguments, reasons and principles developed by common-law judges in the context of auditor liability, and explores a recent case from Saudi Arabia. The chapter also develops the discussion of the potential for insurance to extend to auditor liability by comparing and contrasting actual and existing applications of Takaful and conventional insurance in the area of professional liability. Chapter Eight addresses the research questions posed in Chapter One and concludes with final remarks and observations on the implications of the research.

A series of transformations within contemporary society is profoundly affecting the constitutional ecosystem. Existing constitutional norms shaped for ‘analogue’ communities struggle to address the challenges of the digital revolution. A unique response to this scenario has been the emergence of Internet bills of rights, non-binding declarations advocating constitutional principles for the digital society. This thesis examines this phenomenon, investigating in particular the role of these initiatives from a constitutional perspective. The first part of this work contextualises the emergence of Internet bills of rights. It is argued that contemporary society is witnessing a new constitutional moment. The constitutional ecosystem is reacting to face the challenges of the digital society through different normative instruments, including, but not limited to, Internet bills of rights. In light of the global and transnational character of the issues generated by the digital revolution, constitutional counteractions also emerge beyond the state dimension. The constitutional discourse is necessarily plural. However, these constitutional fragments can be interpreted as matching tesserae of a multi-level process of constitutionalisation. It is contended that these complementary normative responses share the goal of substantiating a form of digital constitutionalism, aiming to translate the core values of contemporary constitutionalism in light of the mutated characteristics of the digital society. The second part of this work analyses the role of Internet bills of rights in this complex process. It is claimed that, using the lingua franca of constitutions, these declarations aim to be part of the conversation on how to shape our constitutional principles in the digital age. Crucially, their informal and non-binding character enables the participation of a broad number of actors and enhances their capability of advancing innovative ideas. It is therefore argued that Internet bills of rights play a compensatory and stimulatory function within the ongoing process of constitutionalisation of the digital society. The analysis of their scope of application and substantive content is then presented as a litmus test of the health of our constitutional systems, highlighting areas affected by constitutional ‘anaemia’, a significant mismatch between constitutional norms and social reality, and thus requiring an urgent update.

This PhD thesis by papers examines the extent to which climate change requires us to rethink or recraft legal doctrines and procedural rules in rights-based systemic mitigation cases in Europe. The three doctrines focused on, in each of the respective papers, are standing, justiciability, and causation. The thesis begins by contextualising and locating the research in the wider body of climate litigation scholarship before unpacking the thesis’ epistemological and theoretical stance: a stance broadly supportive of rights-based approaches. To arrive at this position, the thesis engages with various critiques of rights-based approaches to climate action. The thesis illustrates how a rights-based framing can and should be a practical and effective discourse for dealing with climate issues, but that creative scholarly thinking is required when it comes to dealing with standing, justiciability, and causation. The thesis then proceeds in three papers. The first paper investigates whether an exceptional approach to standing rules is needed in rights-based systemic mitigation cases to reconcile the gatekeeping function of European domestic and regional courts like the Court of Justice of the European Union with the complexity and urgency of the climate crisis. The paper shows that developing inclusive standing rules for rights-based systemic mitigation cases does not require (European) courts to stretch existing standing rules to breaking point but rather to engage seriously with the existing access to justice obligations and the wider purposes of the UNECE Aarhus Convention. The second paper explores the question of what role (if any) do judges already play and should judges play in reviewing the adequacy of states’ climate mitigation policies in rights-based systemic mitigation cases? It asks whether the role of judges needs to be reconceived in the era of climate breakdown? The central finding of the second paper is that judges can and should scrutinise actions of the other two branches on climate mitigation and that it is possible to do so in a manner that does not do violence to the doctrine of the separation of powers. The third and final paper examines the question of causation and the fair allocation of responsibility in rights-based systemic mitigation cases, using a climate justice framing. It looks at whether the widely accepted political theory contributions on climate justice particularly in relation to fair burden sharing, harm avoidance, and a just distribution of the remaining carbon budget can (and ought to) be incorporated or reflected in judicial reasoning on causation in rights-based systemic climate litigation. It examines if and how wider use of the European Court of Human Rights’ lenient approach to causation at the national level could be a way of overcoming causal difficulties that might otherwise extricate wealthy developed country governments that are signatories to the European Convention on Human Rights from responsibility. It also illustrates how rights-based arguments might be a way of operationalising climate justice in judicial reasoning in rights-based systemic mitigation cases in Europe. The central claim of the thesis is that each of the knotty doctrinal questions – standing, justiciability and causation – can be resolved in rights-based systemic mitigation cases without upending the existing legal order in Europe where expansive and creative interpretations of these doctrines are embraced. The value of pursuing these kinds of interpretations is that they allow fundamental rights to deliver on their emancipatory promises in the face of a worsening climate crisis.

The UAE vision 2021 aims to make the UAE among the best countries in the world in terms of economic and social development. In line with this vision, the Islamic Economic Strategy was launched. To this end, the country needed to cement its role as a global regulator of the halal industry. Therefore, a new policy for halal products was introduced in 2014, which provide a comprehensive approach that outlines the requirements and process by which food and other products should be certified halal. The process entails that HCBs comply with the policy requirements, including obtaining accreditation to certify products for the UAE market. This study, therefore, investigates the impact of the UAE-HP on HCBs, who play a key role in this policy and further seeks to understand the challenges they face as policy implementers. The study also proposes regulatory changes to alleviate those challenges to maintain and enhance smooth and successful policy implementation. The two research questions that guided this study were: (i) Research Question 1: What are the challenges faced by HCBs during the introduction of the new UAE halal policy?( ii) Research Question 2: What regulatory design amendments are needed to alleviate the challenges faced by HCBs during the implementation of the new UAE halal policy? The theoretical framework of this study was based on the model proposed by Jensen & Youngs (2015), which presents a set of variables that influence the implementation process and determine the success or failure of a policy. In addition, specific variables from the literature review relevant to the halal implementation context were also incorporated. The interpretive method was adopted using a qualitative exploratory case study design using a thematic analysis approach. Data was collected through in-depth semi-structured interviews conducted with 26 global HCBs divided into three groups (old, enduring and new). In addition, further interviews were conducted with representatives from accreditation bodies and the regulatory body. The study's findings correspond to earlier research findings on the need for institutions to accurately understand and consider various stakeholders' capacity and provide them a reasonable time to prepare themselves and fulfil the policy requirements (Waluyo 2020; Barthwal and Sah 2008; Weaver 2009). In addition, however, findings confirm earlier studies of the noticeable effect that animal welfare and anti-halal groups can have on halal certification in Europe, North America, Australia, and Asia (Fuseini et al. 2016; Yusoff & Sarjoon 2017; Ahmad et al. 2017; Van Waarden & Van Dalen 2011). Nevertheless, the findings indicate that the impact of these groups is minimal and does not hinder the day-to-day certification activities. While the study’s exploratory nature aims to identify challenges in the UAE policy implementation, the findings also shed light on the opportunities HCBs obtained during their journey with the UAE halal policy. This study is unique in the UAE context. It discusses its halal policy as an extraterritorial jurisdiction policy, which adds complexity to the regulator and the implementing body. Hence, the study findings can be helpful not only for the UAE policymakers but also for similar contexts. As a result of this study, a new conceptual framework on halal policy implementation was developed. Furthermore, practical ideas were provided to improve policy implementation in the Gulf and similar countries with a halal top-down policy implementation approach. The case study contributes to implementation theory by utilising Western policy implementation theories in different contexts. The study, therefore, fills the scarcity of empirical research studies on policy implementation in the UAE and similar regions of top-down implementation models. Furthermore, this study contributes to halal policy implementation research, which was limited (Aziz & Chok 2013).

Taking its methodological cues from recent work on the theory and history of international law, this thesis has two primary aims. Firstly, to explore how history figures within international criminal law (ICL) scholarship and to identify the dominant historiographical trends present within this body of work. And secondly, with these trends and tendencies in mind, to identify and reclaim historical episodes that fall outside this established account, but which might still tell us much about the development and current state of the field. Part I provides a literature review and situates the thesis within the broader corpus of international law and ICL scholarship, focusing on the extent to which ICL scholars have undergone a ‘turn to history’ as in other subfields of international law. Following this, Part I then sets out the critical and theoretical underpinnings of the thesis. There is, firstly, the concept of periodisation which I draw on to think through how the dominant disciplinary accounts of ICL’s development are structured. And secondly, there is the body of work associated with ‘Third World Approaches to International Law’. This body of work will assist in developing substantive critiques of the mainstream accounts of ICL and will also provide guidance when developing my own ‘counter-narrative’ of ICL’s development in later chapters. Parts II and III of the thesis will draw on these historiographic insights with a view towards unsettling the standard account of ICL’s development. To this end, they will focus on specific moments where ICL norms and notions of international criminality animated popular activist causes during the American Civil Rights era, as well the anti-war movement during the Vietnam War. These two episodes have particular value, I will argue, as they help us to move beyond the institutional settings we typically focus on when engaging with the history of the field. The thesis thus concludes with a reflection on the value of this approach and signals some future directions for ICL scholarship.

This thesis provides a comprehensive overview of the presumption of innocence in Irish law. It argues that the scope of the presumption of innocence is not confined to narrow evidential rules at criminal trials but is a broader right extending beyond the trial setting to Garda investigations. It also argues that the presumption of innocence continues to be eroded both by legislation and judicial findings. It demonstrates this by analysing case law from Ireland, the European Court of Human Rights and England and Wales. This study complements the work of Hamilton (Hamilton, C, The Presumption of Innocence and Irish Criminal Law (Irish Academic Press 2007)) in two ways – by conducting historical research on the treatment of the presumption of innocence in Ireland prior to Woolmington v DPP and by analysing the ongoing erosion of the presumption of innocence in Irish law in the period from 2007 to 2021, which is not covered by Hamilton’s book. Chapters 1 and 2 are foundational. Chapter 1 engages with the great debates about the presumption of innocence. Chapter 2 conducts a historical survey of the presumption of innocence in England and Ireland and the degree to which the courts have interacted with the presumption. Chapter 3 examines the extent to which the presumption of innocence is under significant threat of erosion by reverse onus provisions. Chapter 4 argues that the presumption of innocence is eroded by legislation that criminalises silence. In Chapter 5 the problem of drawing adverse inferences at trial from an accused person’s failure to account during Garda questioning is discussed. The ‘failure to account’ provisions are analysed. Chapter 6 analyses the more general abridgment of the right to silence and the presumption of innocence by the introduction of ‘failure to mention’ provisions for ordinary criminal offences. The absence prescribed caution is also analysed in depth. The European Union Directive on the presumption of innocence is examined. The broader trend of weighing up competing interests in the administration of justice is analysed in Chapter 7 to explain the broader context in which the erosion of the presumption of innocence has occurred.

This research considers the role of EU Private International Law (EU PIL) in the development of the private enforcement mechanism for Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU). This mechanism refers to actions before national courts seeking, most commonly, compensation for harm caused by infringements of these Treaty provisions. The thesis starts from the assumption that the EU PIL instruments are indispensable for the enforcement of EU competition law claims. Of particular importance are the PIL rules on allocation of jurisdiction, and, identifying the applicable law. This is because EU competition law applies only to behaviour capable of affecting competition in the internal market and trade between Member States. Therefore, litigation based on EU competition law infringements typically (although not invariably) involves cross-border elements. It will be argued that the current EU competition law policy on the development of the private enforcement mechanism is too narrow, and, cannot ensure the full effectiveness of EU law. It argues that the role of the private enforcement mechanism is to complement the public mechanism towards ensuring the objective of detection and deterrence. On the basis of already published empirical evidence, this thesis will demonstrate, in order to unleash the full potential of the private mechanism to complement public enforcement, a complete private mechanism must be developed. It should address a full and varied menu of (EU) remedies alongside the remedy of damages. The thesis will focus on the role of EU PIL in supporting the development of a complete private enforcement mechanism in the shape of one that is capable of complementing public enforcement and of ensuring the full effectiveness of EU law. Given the time and word count limitations of this research, the analysis focuses primarily on the legal and jurisprudential developments in the context of actions for damages. The results of the analysis are far-reaching, and, allow this author to offer conclusions on the future role of EU PIL in the context of damages and non-damages remedies. The emerging conclusion is that the current EU PIL instruments are too rigid for the necessities of EU competition law litigation, and they apply only on account of the lack of more suitable rules. By examining the CJEU jurisprudence, the thesis will demonstrate the emergence of an EU civil law system which supersedes the scope of the substantive law identified by the PIL rules. This author proposes that all remedies which are necessary to ensure the full effectiveness of EU law should be governed directly by EU civil law (as EU remedies). A general jurisdiction rule specific to EU competition law litigation should also be established. The role of EU PIL should be only to support transition to that ideal mechanism. If such a system cannot be achieved, or, if it is not desired upon further consideration, the current EU PIL instruments should, at least, accommodate the particular intricacies and necessities of EU competition law litigation. The thesis contributes to the literature by analysing the role of EU PIL rather than its practical application. While it clarifies the application of the current PIL rules, it aims, primarily to propose a new approach for EU PIL in competition law litigation. Under the proposed approach, EU PIL should play either not role in the long-term development of the private enforcement mechanism, or, play a much more limited role than was assumed at the outset of this research, and, in the pre-existing literature.

My thesis examines the regulation of white-collar crime in Ireland across the areas of company, banking, competition and worker safety law. I compare how the State regulated white-collar crime during the 20th century to how it currently regulates this form of criminality. I argue that the Irish State now has a strong preference for persuasion-based mechanisms of crime control which seek to increase compliance with the law rather than punish wrongdoers for actual or potential white-collar crimes. My work shows that while the number and severity of white-collar criminal offences have increased in recent years, these laws are generally not enforced using the criminal law itself. Rather, I show that a new non-criminal crime-fighting toolkit now represents the vast majority of regulatory responses to actual or potential white-collar crimes in Ireland. These non-criminal means of crime control are made up of a mix of informal, formal, statutory, non-statutory, civil and/or administrative interventions that seek to achieve compliance with the law and not punish wrongdoing. My work shows that the criminal law is now only deployed for egregious and/or repeated white-collar criminality in my four areas of research and that this approach can be broadly mapped over to the theories of responsive and risk-based regulation.

Article 66.2 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which directs developed countries to facilitate technology transfer (TT) to Least Developed Countries (LDCs), is supposed to facilitate a balance of rights and interests, ensuring that TRIPS benefits the most vulnerable members of the World Trade Organisation (WTO). Although Article 66.2 has been operational for two decades, doubts abound regarding its viability and functionality. This thesis contends that the most critical issue is to consider whether Article 66.2 is fit for purpose. Departing from dominant trends in literature, this thesis queries whether, as currently framed, Article 66.2 can facilitate TT and help LDCs build a viable technological base as envisaged. Probing the historical foundations of TT obligations, reflecting on the ideas that have shaped them, and analysing the systemic conditions that precipitated Article 66.2’s inclusion in TRIPS, the thesis contends that the TT model in Article 66.2 is flawed. By analysing implementation reports submitted by developed countries between 1999 – 2020, the thesis provides a rich longitudinal view of how the interpretation and implementation of Article 66.2 have evolved across two decades. Combined with insights gleaned from minutes of TRIPS Council meetings between 1998 and 2020, it demonstrates that the problem with Article 66.2 is not necessarily implementational, but the faults are localised in its foundational design. The thesis thus advances strong arguments for reforms. The reimagined approach proposed in the thesis, rooted in distributive justice, advocates LDCs’ active participation in interpreting and implementing Article 66.2. It proposes new concepts, institutions and implementational mechanisms that sidestep current conceptual and implementational limitations in Article 66.2. The reimagined framework aims to create a TT model that prioritises effectiveness, measurability, and accountability without over-burdening developed countries and other technologically-advanced developing countries with TT obligations.

International law is not always about the making, using and interpretation of rules by a presumed range of state and non-state actors. Potentially affected by international legal rules, individuals and groups in civil society can also identify the effects of law on them and may feel that they need to promote the transformation of the law which appears to hinder the kind of life they want. Constituent power may be one way for ordinary people to react to laws. By means of constituent power, they may protest transnational organisations like the EU to ask for more opportunities to take apart in the making and application of law. If the entitlement to participation is not formally made known for people, they may still want to gather to discuss and reach consensus about what law is exactly unsatisfactory and whether it needs to be changed. Thus, people usually presume only particular kinds of constituent power relating to the contexts of their life and become interested in them, i.e., the ‘power’ to expand democratic procedure beyond lawmaking. By a critique of existing theories on the constituent power relevant to law beyond the state (LBS), this thesis considers whether the concept of constituent power can be meaningfully related to transnational law to describe a distinct sort of social phenomena. LBS implies that the people’s mind to perceive law’s effects is no longer centred on laws that constitute ‘small worlds’ like the state. But constituent power can only be talked about contextually. This thesis argues that if we do not first look at the context in which people experience law’s effects, constituent power can only be considered as the force to constitute laws. When constituent power is related to LBS in this way, there might be an ‘antinomy’. Constituent power is either reduced to a part of transnational legal process or no longer relevant to LBS at all. Instead, it seems more meaningful to consider how a context, i.e., a space, is structured, in which people find constituent power necessary for reacting to the law that looks unsatisfactory. However, the space must not be structured by law only. Otherwise, people will still be encouraged to constitute laws.

The use of deliberative minipublics (representative samples of ordinary citizens, chosen by lot, who deliberate together and make proposals for legal and policy reform) is on the rise around the world. Ireland in particular stands out as a trailblazer internationally in the use of these novel democratic innovations, in the form of citizens’ assemblies, in the constitutional and legislative reform arena. The Irish approach to minipublic deliberation in the democratic process has garnered an extraordinary level of international attention, and the role of the Citizens’ Assembly in the reform of the law on abortion seems to carry particular resonance. Many of the claims made about the Irish experience in the abortion case, however, overlook important contextual factors and lack an empirical basis. This study seeks to fill a serious gap in the literature on the Assembly’s impact in the abortion case: it is, to the author’s knowledge, the most comprehensive empirical analysis to date of the formation of the Assembly’s recommendations and their path through the entire political process to enactment as law. The study seeks to provide novel insights into the role played by the Irish Citizens’ Assembly in the reform of the law on abortion. It presents the Irish Citizens’ Assembly in the abortion case as illustrative of a minipublic in the constitutional reform context being a tool of consensus-clarification, not consensus-creation and as demonstrating the power of a minipublic to set the agenda for parliament in respect of a major – and divisive – legislative reform. The study also highlights the critical importance of institutional design in creating a process in which a minipublic can play a highly impactful role in a legal change. In this way, the study presents important lessons for both empirical scholars and policy-makers seeking to incorporate minipublic deliberation in a more meaningful way in public decision-making processes in the future.

This thesis examines the current status of Sweden’s constitutional democracy. Utilising an interdisciplinary, empirical approach, it focuses particularly on the potential relationship between right-wing populism and non-Western immigration to Sweden. An analysis of qualitative data from 23 focus groups and 10 interviews develops both the meta-concept of democratic decay and crimmigration theory. Using these frames, this thesis subjects Sweden’s constitutional framework to a stress test and finds that the state is well-placed to withstand an authoritarian attack on the structures of constitutional liberal democracy. However, it is not as safeguarded when it comes to the erosion of the substance of constitutional liberal democracy. This thesis contends that the Sweden Democrats are a right-wing populist party that are ideologically illiberal. As populist actors, they are capitalising on and conflating the salient political issues of immigration and violent crime to push for punitive and exclusionary policy in these areas that is emblematic of democratic decay in Sweden. Data from focus groups and interviews provide nuance and counternarratives to those of the Sweden Democrats. They demonstrate that the Swedish public view right-wing populism and the Sweden Democrats as harmful. The data suggest that people in Sweden are not inherently opposed to immigration but instead are frustrated with how the state has approached integration. The data further suggest that people feel that the state is responding inadequately to violent crime. This study unfolds against the backdrop of a growing interest in understanding the increase in support for anti-immigrant populist parties across Europe and the Western world, as forced migration continues to be one of the most significant global challenges of our time. In conclusion, the empirical work suggests that Sweden, which sits among the most well-established democracies in the world, is hitting certain key points on a trajectory of democratic decay.

This Thesis has two objectives: to compare the laws of the UK and China in the sector of shareholders’ distributions in respect of their capacity for creditor protection, with the aim of investigating the need for reformation of the capital maintenance regime in China; and to examine the fit and feasibility of transplanting the UK’s current shareholders’ distribution regimes (including capital maintenance) to China, with the aim of exploring an optimal model of shareholders’ distribution regime in China. This Thesis analyses and compares shareholders’ distribution regimes in both the UK and China, namely, statutory rules in the areas of share repurchase, capital reduction, dividend distribution and financial assistance for the acquisition of a company’s own shares, and the common law of unlawful return of capital. This Thesis investigates the capacity of creditor protection that can be achieved by capital maintenance regimes in both the UK and China through applying a yardstick of company solvency upon and within one year of shareholders’ distribution. The investigation discloses that the capital maintenance regime in the UK, a regime which primarily adopts the net assets test, cannot guarantee company solvency upon shareholders’ distributions. The comparative study and company solvency investigation in China discloses weaknesses of its transplanted capital maintenance regime, such as halfway transplant, incoherence, a simplistic approach, a lack of consideration into company solvency upon distribution, a lack of personal accountability and constraint in creditor protection. Through testing legal transplant theories, this Thesis identifies the following as the contributing factors to these weaknesses: instructions given by authoritarian leaders to establish a legal system rapidly, confusing power distribution between the National People’s Congress and the Supreme People’s Court in law-making and lack of Western legal education received by law-making lawyers and their inability to fully grasp the meaning of transplanted laws. This Thesis recommends that any future transplant in China shall take into consideration the interplay between the transplanted law and the forces of socio-cultural speciality – one of which in this case is the accounting environment. This Thesis concludes that neither the capital maintenance regime nor the solvency-based regime in the UK fits the current accounting environment in China; and that China may adopt a combination of simple balance sheet test and a phased solvency test in its reformation of the shareholders’ distribution regime.

This thesis examines the potential of a human rights-based approach (HRBA) to identify areas in need of reform in the protection of victims' rights during legal proceedings involving intimate partner violence (IPV). The thesis begins by providing an overview of victims' rights in international human rights law as they have been elaborated by a range of international organizations. It then outlines the key elements of a HRBA, tracking its evolution from the field of development to its application to human rights violations. This thesis constructs a bespoke HRBA to provide an analytical framework with which to evaluate models of victim protection during legal proceedings involving IPV. Drawing on the HRBA framework constructed, the thesis then proceeds to analyse four models of legal proceedings involving IPV. The first model is the traditional, fragmented approach adopted by many States, in which no structural changes or coordinated practices have been adopted. The HRBA is applied to this model to identify areas for reform that could enhance the realisation of victims' rights in legal proceedings involving IPV. This thesis uses the example of the Irish jurisdiction to analyse this approach using the bespoke HRBA. In so doing, this thesis identifies the numerous areas in need of reform in the Irish approach, particularly with respect to supports to prevent secondary victimisation. The second model examined with reference to the HRBA is the multi-agency model adopted in many jurisdictions in the form of the Family Justice Centre. This model coordinates agencies and policies to provide better access to support services for victims of IPV engaging in legal proceedings. Many of the issues in need of reform in the Irish jurisdictions were also found to be present in the Family Justice Centre such as an absence of accountability mechanisms to prevent rights violations and inadequate protection during legal proceedings to prevent secondary victimisation. The third model examined is the Specialised Court through the Integrated Domestic Violence Court. Like the Family Justice Centre, this model coordinates agencies and policies to make supports available to victims. This model also extends to the courtroom, coordinating criminal and family law proceedings before one judge. By applying the HRBA to this model, this thesis was able to identify particular concerns with respect to balancing the rights of victims with those of the accused and achieving fair justice for all. Finally, this thesis evaluated the Restorative Justice model using the HRBA. This revealed concerns over the accountability framework in place in Restorative Justice models, as well as potential to infringe on the rights of the accused. The central claim of this thesis is that the HRBA can be used to identify areas in need of reform in the protection of victims' rights during legal proceedings involving IPV. The value of the application of this analytical framework lies in identifying areas in which human rights can provide vulnerable victims with increased support and protection. The grounding of this approach in international human rights law affords it the potential to enhance victim protection through State obligation and to prevent further harm being inflicted on victims of IPV in pursuing redress through legal proceedings.

The current approach to examining European patents and EU trade marks on the basis of morality and public policy/ordre public is a practice which is fraught with inconsistencies. Not only is the does the interpretation of these vague concepts vary on a case-by-case basis, but the methodology for applying the law can also be seen to differ from one examiner to the next. This has resulted in an incoherent body of case law, creating a lack of transparency for intellectual property practitioners and applicants alike. Using an interdisciplinary methodology which combines a socio-legal approach with the social science methodology of Thematic Analysis, this research focuses on four categories of data: first, the key decisions of the CJEU are analysed and this analysis is contrasted with the Advocate General Opinions, the submissions of the parties to the cases, and third party observations; second and third, the examination decisions of the European Patent Office (EPO) and the EU Intellectual Property Office (EUIPO) have been analysed; and fourth, interview data collected from stakeholders in the field is analysed to give a “bottom-up" perspective on the legal provisions in practice. The coding of this data, using Braun and Clarke’s Thematic Analysis, has highlighted the extent of the inconsistencies in decision making, as well as a lack of clarity regarding who or what is influencing the jurisprudence in this area. It also demonstrates the frustrations of practitioners in this area, and the lack of opportunity for involvement of these stakeholders in the review of legislation and guidelines before now. This thesis presents a revised approach to regulating patents and trade marks, proposing a “public interest” standard. Guidance for the consistent and objective interpretation and application of this new standard is also needed, and so interpretive guidelines and a methodology for examiners is recommended. Furthermore, the role of the EPO and EUIPO within the broader regulatory framework is also acknowledged. The current situation where the EPO and EUIPO are siloed off from other relevant regulatory bodies has resulted in decisions which do not reflect the oppositions being raised against problematic intellectual property applications. Greater dialogue between these Offices and other relevant regulatory agencies will be paramount in ensuring that public interests are adequately met.

The modernisation of EU competition law was brought about over twenty years ago by the adoption of the consumer welfare standard. This standard requires an almost unitary focus on the price effects of mergers, to the exclusion of any social or non-economic factors of relevance. However, the law’s refusal to consider equality or sustainability, for example, is incongruous with the broader aims of the EU. Underlying it is a neoliberal ideology based on a reluctance to intervene on markets, and the flawed assumption of market self-correction. The objective of the thesis is to propose EU competition law’s ‘second modernisation’, whereby the Commission would revitalise the law by shifting from the consumer welfare standard and reorient it towards the social values underpinning the Union. The thesis argues that the continued application of the consumer welfare standard, a cornerstone of EU competition law, should be reconsidered as it fails to align with the EU’s constitutional framework and the broader interests of European citizens, which extend beyond cheap consumption at the expense of all else. In order to establish this, the thesis seeks to demonstrate the flaws of the consumer welfare standard, while also indicating how it fails to conform with citizens’ interests. It highlights how the more economic approach is no longer consonant with the EU Treaties due to its singular prioritisation of economic interests and refusal to integrate social considerations. Most significantly, the thesis advances a novel test to replace the consumer welfare standard (the ‘socially conscious consumer standard’) which may be regarded as attempt to find a better balance between economic and non-economic considerations in competition law.

The Data Protection Impact Assessment (DPIA) is an innovative regulatory tool, first introduced in 2018 as part of the EU’s GDPR. Since then, it has been adopted by many jurisdictions globally. Its purpose is to compel data controllers to evaluate and document how high risk personal data processing impacts the rights and freedoms of people. Despite its importance, there is limited research on the DPIA, with most studies focusing only on its theoretical underpinnings. Notably, there is a scarcity of empirical research on the practical application of this risk management instrument. This thesis takes a significant step towards filling this gap by analysing and comparing DPIAs in the light of regulatory theory. I develop a structured framework for comparing DPIAs and present the first systematic analysis of multiple DPIAs addressing the same fact pattern. First, I review the development of regulatory theory to show how DPIAs fit into the ‘ new governance’ model of regulation. I then trace the evolution of data protection across Europe, illustrating how it mirrors the shift from classical regulation to new governance. For the case study, I analyse twenty-three DPIAs produced by EEA states for their COVID proximity tracing apps. These DPIAs shared the same regulation, the same problem, and the same technical solution. The variable lies in how the data controllers interpret the DPIA regulations, making this a unique experiment. The comparative analysis of these 23 DPIAs shows a high degree of commonality in the elements required for a DPIA but significant variations in how each DPIA addresses these elements. Risk identification and mitigation, in particular, exhibit wide divergence. These findings indicate that DPIAs would benefit from a greater emphasis on transparency, learning and objective standards. The findings point to the weakness of ex-ante risk and proportionality assessment. Based on these insights, I propose four recommendations to enhance the DPIA process, which could be implemented by SAs and data controllers without requiring legislative changes. This would move DPIA regulation towards a reflexive and meta-regulatory approach, leading to a more consistent level of fundamental rights protection across the EU.

This thesis explores the experiences of young persons involved in the criminal justice system as they reach adulthood and navigate custodial transitions from youth to adult justice services, often referred to as “cliff edges”. Young adulthood, the period of life from 18 to 25 years, is a distinct life stage during which development and maturation continue. Central to this thesis is a medico-legal disconnect. Upon reaching the age of majority, the system under which an individual is governed changes overnight, but their maturity does not. This thesis identifies the needs of this distinct cohort in criminal justice settings. Despite the need for research and reform in the area being highlighted in the Irish Penal Reform Trust’s Turnaround Youth report 2015 and the Youth Justice Strategy 2021-2027, there is still a gap in the academic literature, a gap which this research fills. This study triangulates data, employing a mixed methods approach with a strong ontologically-oriented phenomenological design, maximising its potential to build a complete picture of the research topic. Rooted in Article 12 of the UNCRC and the Lundy Model of Participation, this thesis adopts a rights-based participatory approach, enshrining YPs’ voices and involving them in knowledge generation. This in-depth study consists of fieldwork in four institutions in a single jurisdiction, including 63 semi-structured interviews with young people aged 16 to 25 years, complemented by survey questionnaires (n = 39). With the YPs’ voices at the heart of this study, it gives us a unique insight into their experiences. They are experts in their own lives and agents for change rather than a “problematic” cohort of the criminal justice system. This study enriches the literature on young adulthood, illuminating the impact of ‘exiting’ provisions designed for children into a system designed for adults. The findings evidence that custodial transitions can exacerbate the dual liminality that young adults experience, between childhood and adulthood as well as youth and adult justice provisions. Young adults are often not adequately developed to deal with an adult system and services and may benefit from the provisions offered to children. Transitions can become opportunities to enhance the probability of individuals ‘ageing out’ of criminal involvement, slowing down the ‘revolving door’ of the criminal justice system from turning.

This research investigates the differing perceptions of corruption, inequality and trust in public institutions in Latin America, focusing on Argentina and Uruguay. Despite sharing similar levels of institutional development, the two countries exhibit great contrasts in how citizens perceive corruption. Through a participatory research approach, this study employs focus groups to collect qualitative data from citizens in both countries, providing deeper insights into their views on corruption and trust in institutions. The research uses thematic analysis to identify key factors contributing to these differing perceptions. Cultural particularities, tolerance for wrongdoing, national reputation, compliance with rules and inequality of opportunities emerge as crucial elements shaping how corruption is perceived. Additionally, the presence of strong accountability mechanisms and a robust separation of powers are identified as significant influences on public trust and perceptions of corruption in both Argentina and Uruguay. These findings point to perceptions of corruption and trust having implications regarding democratic backsliding. In addition, they offer a rich, qualitative understanding that complements existing quantitative research, helping to explain disparities seen in survey results. This study sheds light on the complex relationship between corruption, trust, and socio-cultural dynamics, highlighting why corruption perceptions can vary so significantly even in countries with comparable institutional structures. It underscores the importance of cultural and institutional factors in shaping public attitudes toward corruption, beyond what legal frameworks alone can address. This research emphasises the need for anti-corruption strategies that are tailored to the cultural and institutional contexts of each country, in order to effectively build public trust and enhance governance. These findings are crucial for developing more targeted, impactful policies aimed at combating corruption and fostering stronger democratic institutions across Latin America.