Edinburgh Student Law Review
type: channel
description: The Edinburgh Student Law Review (ESLR) is a peer-reviewed academic journal, with an editorial board comprised of students dedicated to fostering scholarly discourse and advancing legal knowledge within the student community. We welcome submissions from undergraduate, postgraduate and PGR students and recent graduates from the University of Edinburgh and other academic institutions. We have a broad scope, covering any legal field under domestic and international law, as well as interdisciplinary articles with a strong legal focus. We particularly welcome submissions that target novel areas of law and adopt innovative approaches to study legal themes. The ESLR provides a forum where emerging legal scholars can explore diverse perspectives, challenge existing norms, and address pressing legal concerns. At this time, we are no longer accepting submissions. We invite interested students to join our mailing list to receive updates on the Review's engagements and to be among the first to hear about future calls for submissions. To subscribe please click here: https://forms.office.com/e/U05W2pTw3S
publisher: University of Edinburgh
language: en
publication name: Edinburgh Student Law Review
issn: 2044-7809
items: ESLR 2025/2026 Committee
items: Letter from the Editors
items: Foreword by Lord Hope of Craighead
items: Should a Lie about Fertility Vitiate Consent to Sex?
items: https://www.nibjournal.ed.ac.uk/eslr/article/view/10715
items: The Currency of Culpability: A Critical Analysis of Guilty Plea Discounts
items: Destroying UNESCO World Heritage: An Attack on the International Community?
items: Greening the International Criminal Court: A Critical Inquiry into Environmental Liability under the Rome Statute
items: Modernising Grounds for Refugeehood in the Twenty-First Century: Post-1951 Lessons from the Cartagena Declaration and Latin America
items: The Impact of Juristic Writings on the Intellectual Development of Roman Law and Their Place as a Source of Law
items: Advancing Equality: A Convention on the Rights of LGBTI Persons
items: Supranational Protection and the Rome Statute: Should Drug Trafficking Join the Ranks?
items: Discussion On The Possibility Of Virtual Characters Being Regarded As Legal Persons
items: From ‘Freedom After Speech’ to ‘Freedom of Speech’
items: Introducing Ubuntu to Property Law
items: Back To Quo Warranto
items: The Right To Education For Children On The Move
items: Enforcing Restrictive Measures Against Russia Through Criminal Law
items: Editorial for the Special Issue
items: Editorial for the 2024 Issue of ESLR
items: An In-Depth Examination of the International Climate Regime: Spotlight on Nationally Determined Contributions and Paris Agreement Compliance
items: Defending the Best Interest Principle: Caring for Critically Ill Children
items: To Break the Fourth Wall: A Comparative Approach to Scottish Ministers, Petitioners
items: The Strange Case of an Agent Acting for an Unidentified Principal
items: Seabed Trawling on the High Seas: Legislating Environmentally Damaging Fishing Techniques Beyond National Jurisdiction
items: The Subtle Art of Compromise and the International Financial Architecture
items: Has the International Climate Regime Failed and Missed Its Purpose? Loss and Damage and Human Rights Perspective
items: Reforming Rescue Mechanisms: A Close Examination of Part 26a in the Companies Act 2006
items: A Critical Analysis on the Regulation and Sanctioning of Wrongful and Fraudulent Trading
items: Trust: In Search of the Core Features

ESLR 2025/2026 Committee
type: item
subject: Editorials
  topic: section
creator: Canel Atik, Hailey Craig, Alexandrine Lamarre
rights: Copyright (c) 2026 Canel Atik, Hailey Craig, Alexandrine Lamarre https://creativecommons.org/licenses/by/4.0
date: 2026-03-16
publication date: 2026-03-16
doi: 10.2218/eslr.2026.6.1.12128

Letter from the Editors
type: item
subject: Editorials
  topic: section
creator: Canel Atik, Hailey Craig, Alexandrine Lamarre
rights: Copyright (c) 2026 Canel Atik, Hailey Craig, Alexandrine Lamarre https://creativecommons.org/licenses/by/4.0
date: 2026-03-16
publication date: 2026-03-16
doi: 10.2218/eslr.2026.6.1.12127

Foreword by Lord Hope of Craighead
type: item
subject: Editorials
  topic: section
creator: Lord Hope of Craighead
rights: Copyright (c) 2026 Lord Hope of Craighead https://creativecommons.org/licenses/by/4.0
date: 2026-03-16
publication date: 2026-03-16
doi: 10.2218/eslr.2026.6.1.12121

Should a Lie about Fertility Vitiate Consent to Sex?
type: item
description: The Sexual Offences Act 2003 fails to provide adequate protection for those induced into sexual activity by deception, leaving the principle of sexual autonomy insufficiently safeguarded. This article argues that legislative reform is necessary to protect future victims. Drawing principally on R v Lawrance and analogous cases, this article examines the factors courts have held to vitiate consent to sex, and demonstrates how their application in Lawrance exposes significant flaws in the current framework. The Act and proposed legislative reforms are critically analysed, with the conclusion that any adequate reform must be tested against, and capable of addressing, the facts of Lawrance.
subject: General Articles
  topic: section
subject: sex
  topic: keywords
subject: deception
  topic: keywords
subject: consent
  topic: keywords
creator: Imogen Charlotte Collins
rights: Copyright (c) 2026 Imogen Charlotte Collins https://creativecommons.org/licenses/by/4.0
date: 2026-03-16
publication date: 2026-03-16
doi: 10.2218/eslr.2026.6.1.10792

https://www.nibjournal.ed.ac.uk/eslr/article/view/10715
type: item
title: Do the United Nations' Guiding Principles on Business and Human Rights Require a Fourth Pillar to Better Respect Human Rights? Contrasting Karp's 'Disembedded Liberalism' Thesis and Human Rights Due Diligence
description: The UNGPs' three-pillar framework has received several critiques, notably concerning whether it is sufficient to combat human rights abuses. As a result, critics have proposed their own frameworks, aimed at addressing what they believe is missing from the UNGPs' framework. David Karp proposes one significant reform, introducing a pillar based on the idea of 'disembedded liberalism', focused on 'a collective political responsibility to challenge and change our current world order'. Such a reform could help enhance the UNGPs' effectiveness in combating human rights abuses, an area in which the UNGPs arguably fall short in contemporary society.
subject: General Articles
  topic: section
subject: Human Rights
  topic: keywords
subject: UNGPs
  topic: keywords
subject: Human Rights Due Diligence
  topic: keywords
subject: Disembodied Liberalism
  topic: keywords
creator: Gulsum Qane Qane
rights: Copyright (c) 2026 Gulsum Qane https://creativecommons.org/licenses/by/4.0
date: 2026-03-16
publication date: 2026-03-16
doi: 10.2218/eslr.2026.6.1.10715

The Currency of Culpability: A Critical Analysis of Guilty Plea Discounts
type: item
description: What price should a legal system demand for justice, and at what cost to its moral integrity? This essay interrogates the ethical dimensions of guilty plea sentence discounts, an ostensibly pragmatic mechanism that lies at the fault line between justice’s philosophical ideals and procedural efficiency. While such discounts are often justified as incentives for responsibility, relief for victims, and efficiency for overburdened courts, they also risk transforming culpability into currency, where time is traded for compliance and justice becomes a matter of negotiation rather than moral principle. Through a comparative analysis of the United States and Scotland, this essay explores how divergent legal architectures shape the operation and ethical valence of guilty plea practices. In the U.S., where plea bargaining dominates, the system reveals troubling pressures that can coerce even the innocent into confessing, exposing deep systemic inequities. Scotland’s more structured and proportionate model offers a contrast, one that, while not without issue, reflects a more constrained and principled approach to sentencing relief. Drawing on the moral philosophies of Kant, Rawls, and virtue ethicists, the essay critiques guilty plea discounts as a threat to autonomy, dignity, and the moral agency of defendants, particularly those already marginalised by systemic disadvantage. These discounts, it argues, erode the relational core of justice, substituting coercion for accountability and expedience for integrity. Although utilitarian arguments grounded in efficiency and victim benefit are acknowledged, they are ultimately found to obscure deeper ethical compromises. The essay concludes by proposing a reconceptualisation of guilty pleas, not as transactions, but as expressions of relational justice. In this reframing, discounts are no longer rewards for procedural submission, but catalysts for moral reckoning, restoration, and dignity. Realising this vision demands transparency, …
subject: General Articles
  topic: section
creator: Ayman Faris Khalil
rights: Copyright (c) 2026 Ayman Faris Khalil https://creativecommons.org/licenses/by/4.0
date: 2026-03-16
publication date: 2026-03-16
doi: 10.2218/eslr.2026.6.1.10816

Destroying UNESCO World Heritage: An Attack on the International Community?
type: item
description: Since the outbreak of the current armed conflicts in Ukraine and Palestine, both States have actively pursued nominations to the World Heritage List established by the 1972 Convention Concerning the Protection of the World Cultural and Natural Heritage. Both Palestine and Ukraine have relied on emergency procedures to nominate certain sites, while simultaneously inscribing several other properties on the List of World Heritage in Danger. As the destruction of such cultural and natural heritage would be an impoverishment for the international community as a whole, this article will assess the influence that inscription on the World Heritage List has on the conviction of an individual for the war crime of intentionally directing attacks against buildings dedicated to art or historic monuments that are inscribed on the List. It will first focus on the existing jurisprudence of the International Criminal Court and the International Criminal Tribunal for the former Yugoslavia regarding the war crime of intentionally directing attacks against cultural property, before evaluating the current developments in Ukraine and Palestine concerning the inscription of World Heritage sites threatened by the ongoing conflicts.
subject: General Articles
  topic: section
subject: International Law
  topic: keywords
subject: UNESCO
  topic: keywords
subject: World Heritage Convention
  topic: keywords
creator: Emma Dhondt
rights: Copyright (c) 2026 Emma Dhondt https://creativecommons.org/licenses/by/4.0
date: 2026-03-16
publication date: 2026-03-16
doi: 10.2218/eslr.2026.6.1.10811

Greening the International Criminal Court: A Critical Inquiry into Environmental Liability under the Rome Statute
type: item
description: Human-induced environmental decline poses an existential threat to the peace, security, and well-being of the world. This crisis has intensified calls for the international legal system to assume a more proactive role in confronting the causes of environmental degradation. In this context, the International Criminal Court (ICC), grounded in its mandate over the most serious crimes of concern to the international community, has emerged as a potential forum for imposing accountability on the political, commercial, and military authors of environmental destruction. Despite the exigency of the situation, international criminal law lacks a substantive legal framework that is properly calibrated to address environmental harms. Article 8(2)(b)(iv) of the Rome Statute directly addresses wartime environmental damage, but conditions liability on exacting thresholds of damage and disproportionality such that it offers little, if any, protection to environmental interests. During peacetime, international criminal law recognises environmental harm only insofar as it is incidental to a humanitarian atrocity, but not as an independent concern. Framing environmental liability through this anthropocentric lens not only neglects the full extent of environmental destruction from a wide range of human practices but also embeds the reductive normative position that environmental concerns are marginal to human interests. Recognising that human and environmental interests are interdependent, this article argues that effective protection relies on a mechanism of environmental liability divorced from anthropocentric constraints.
subject: General Articles
  topic: section
subject: International criminal law
  topic: keywords
subject: environmental law
  topic: keywords
subject: criminal law
  topic: keywords
subject: public international law
  topic: keywords
creator: Solomon Mayers
rights: Copyright (c) 2026 Solomon Mayers https://creativecommons.org/licenses/by/4.0
date: 2026-03-16
publication date: 2026-03-16
doi: 10.2218/eslr.2026.6.1.10806

Modernising Grounds for Refugeehood in the Twenty-First Century: Post-1951 Lessons from the Cartagena Declaration and Latin America
type: item
description: The seventy-three-year-old Convention Relating to the Status of Refugees serves as the primary basis for claiming asylum in 2025. While the 1967 Protocol Relating to the Status of Refugees removed the geographic and temporal constraints of the 1951 Convention, it nevertheless failed to address reasons for persecution other than race, religion, nationality, membership in a particular social group, or political opinion. This article examines grounds for refugeehood emanating from the Global South. Bases for asylum formulated in the 1969 OAU Convention and the 1984 Cartagena Declaration consider reasons for international protection overlooked by Western, non-colonised nations in the post-World War II environment. While these documents have remained largely theoretical, this article analyses the case of over 60,000 Venezuelans who recently obtained asylum in Brazil and Mexico via language found in the Cartagena Declaration. With this background, the article examines the commonalities and differences in the Brazilian and Mexican governments’ asylum responses to the Venezuelan humanitarian crisis. The article concludes by elucidating the circumstances in which advocates can attempt to utilise broader regional bases of asylum to more fully account for twenty-first-century understandings of persecution and harm.
subject: General Articles
  topic: section
subject: Refugee
  topic: keywords
subject: 1951 Convention
  topic: keywords
subject: Cartagena Declaration
  topic: keywords
subject: Asylum law
  topic: keywords
subject: Venezuela
  topic: keywords
subject: Regional refugee frameworks
  topic: keywords
subject: Asylum
  topic: keywords
subject: Human Rights
  topic: keywords
creator: Elena Macomber
rights: Copyright (c) 2026 Elena Macomber https://creativecommons.org/licenses/by/4.0
date: 2026-03-16
publication date: 2026-03-16
doi: 10.2218/eslr.2026.6.1.10801

The Impact of Juristic Writings on the Intellectual Development of Roman Law and Their Place as a Source of Law
type: item
description: Until the 3rd century BC, pontiffs (a form of priest) were the only people learned in and able to interpret the law. They wielded control by withholding what the law was. However, in 312 BC, Appius Claudius’ actions-at-law were publicised, instigating the new convention of those with legal knowledge to give public, legal opinions, and birthing the profession of a ‘jurist’ (although there is a great likelihood of this being a mythical story). The first jurist to do this was Tiberius Coruncanius, and from then on, jurists were generally aristocratic men who advised, commented, and essentially wrote law. The main juristic period was from 150 BC to 250 AD, during which the nature of jurists and their influence continued to fluctuate. Most academic scholarship agrees that the jurists were a source of law, since the assertions of Cicero, Gaius, and Justinian that juristic writings were a Roman source of law are incontrovertible. However, there is a continuing debate as to whether these writings enhanced the intellectual development of Roman law. This essay will contend that juristic literature was both a significant source of law and a pivotal component in the intellectual development of Roman law. This will be demonstrated by the direct impact juristic writings, like the responsa, had on the Roman legal system; the indirect influence the jurists had on the law through the praetorian edict and interpretation of the imperial decrees; and the legacy of this juristic literature in later Roman times.
subject: General Articles
  topic: section
subject: Jurist
  topic: keywords
subject: Roman law
  topic: keywords
creator: Lily Blackhurst
rights: Copyright (c) 2026 Lily Blackhurst https://creativecommons.org/licenses/by/4.0
date: 2026-03-16
publication date: 2026-03-16
doi: 10.2218/eslr.2026.6.1.10798

Advancing Equality: A Convention on the Rights of LGBTI Persons
type: item
description: Over the past decade, notable progress has been made in advancing the rights of LGBTI individuals, with many states implementing monumental equality and anti-discrimination laws, including protections for transgender persons. These developments reflect a broader trend toward inclusion, largely driven by sustained advocacy at both national and international levels. Despite these achievements, significant regional disparities persist, and rising opposition in some areas underscores the fragility of these gains. The continued existence of state-sponsored homophobia and gaps in international legal protections indicate that progress is neither universal nor inevitable. As such, there is an urgent need for the UN to strengthen its efforts in clearly defining and enforcing the rights of LGBTI persons under international law. This paper explores the current basis for LGBTI rights in international human rights law, including the gaps in that basis. Subsequently, this paper examines instances of criminalization and discrimination, with a case study regarding the right to health, to explore the harms caused by these gaps. Ultimately, this paper explores a Convention on the Rights of LGBTI persons as an example of a potential model to advance discourse on broader protections for the community in international human rights law.
subject: General Articles
  topic: section
subject: Human Rights
  topic: keywords
subject: LGBTI
  topic: keywords
creator: Ryan Conover
rights: Copyright (c) 2026 Ryan Conover https://creativecommons.org/licenses/by/4.0
date: 2026-03-16
publication date: 2026-03-16
doi: 10.2218/eslr.2026.6.1.10796

Supranational Protection and the Rome Statute: Should Drug Trafficking Join the Ranks?
type: item
description: Since its foundation, the International Criminal Court (ICC) has received many questions about its legitimacy, specifically considering the additional level of supranational protection granted to the core crimes contained in the Rome Statute. This paper aims to analyse the legitimacy of this additional level of supranational protection conferred on only four core crimes and denied to all others by investigating what qualifies a crime as a core crime and whether the list should be limited to only the four core crimes currently under the Rome Statute. Specifically, the paper will discuss whether the crime of drug trafficking should be included under the jurisdiction of the ICC. It will do this by addressing the research question: are the currently selected core crimes under the Rome Statute justified in receiving an additional level of supranational protection, and should drug trafficking be granted similar status under the ICC? Through a discussion of the legal definition of core crimes and a historical account of the creation of the Rome Statute, the paper argues for a special character of the four core crimes currently under the Statute that warrants an additional level of supranational protection. Further, through historical, formal, and normative arguments the paper makes a case for the inclusion of the crime of drug trafficking under the Rome Statute and for a re-examination of the criteria for amending the Statute to provide a clear legal definition of core crime.
subject: General Articles
  topic: section
subject: Rome Statute
  topic: keywords
subject: Core Crimes
  topic: keywords
subject: Drug Trafficking
  topic: keywords
subject: Supranational Protection
  topic: keywords
creator: Martina Semino
rights: Copyright (c) 2026 Martina Semino https://creativecommons.org/licenses/by/4.0
date: 2026-03-16
publication date: 2026-03-16
doi: 10.2218/eslr.2026.6.1.10780

Discussion On The Possibility Of Virtual Characters Being Regarded As Legal Persons
type: item
description: .
subject: General Articles
  topic: section
creator: Xinyu Lyu
rights: Copyright (c) 2025 Xinyu Lyu https://creativecommons.org/licenses/by/4.0
date: 2025-03-14
publication date: 2025-03-14
doi: 10.2218/eslr.2025.5.2.10676

From ‘Freedom After Speech’ to ‘Freedom of Speech’
type: item
description: In the aftermath of October 7, the world has intensified its focus on Israel's genocidal policies in Palestine. With this issue gaining urgency, legal experts, scholars, and academics are rightly scrutinising whether Israel can be held accountable for war crimes, crimes against humanity, and genocide in international courts. However, the implications of this matter are far more overarching. In this paper, I will examine the impact of the unconditional support that Israel receives—particularly from Western countries, led by the United States— on democracy and the fundamental principle of freedom of speech. In this context, I will argue that the IHRA's definition of anti-Semitism and its so-called illustrative examples are wielded like a Sword of Damocles over those who criticise Israeli governments, demonstrating how this corrupted version of anti-Semitism poses a threat as dangerous as bullets. By analysing real-world cases, I will explore how the concept of Chosen Trauma, introduced by political psychologist Vamik Volkan, is manipulated by Israeli government officials to exploit the Holocaust—one of the greatest tragedies in history—for political purposes. Finally, using real-world examples, I will reveal how specific forms of freedom of speech, such as media and academic freedom, are undermined through censorship, self-censorship, intimidation, and coercion. In an environment where even writing about such a topic is challenging, the aim of this study remains modest: to stand against pressures and threats with the most valuable weapon we possess in the 21st century—freedom of speech—and to encourage colleagues who share similar concerns to do the same.
subject: General Articles
  topic: section
creator: Muhammet Dervis Mete
rights: Copyright (c) 2025 Muhammet Dervis Mete https://creativecommons.org/licenses/by/4.0
date: 2025-03-14
publication date: 2025-03-14
doi: 10.2218/eslr.2025.5.2.10675

Introducing Ubuntu to Property Law
type: item
description: In this paper, I make the following arguments. First, I contend that the dominant understanding of property has adverse environmental ramifications. This dominant understanding is predicated on the right to exclude over a thing. Under a political economy that prizes capitalism and individualism, this has contributed to deleterious climate change and unsustainable practices. Secondly, I sketch the normative content of ubuntu as a legal philosophy. Ubuntu is notoriously difficult to define and has shifting meanings. However, this does not denude its significance. It remains an attractive relational, multi-dimensional worldview of ‘African ontological values of interconnectedness, common humanity, collective sharing, obedience, humility, solidarity, communalism, dignity, and responsibility to one another.’ Thirdly, I propose ubuntu as an alternative legal philosophy to underpin our understanding of property. Under ubuntu, property ownership is seen as custodianship, with responsibility for future generations. This contrasts with individual ownership (with the right to exclude), where the owner has unfettered rights to exploit the resource. Custodial ownership necessitates sustainable practices that ensure the long-term viability of the resource.
subject: General Articles
  topic: section
creator: Sfiso Nxumalo
rights: Copyright (c) 2025 Sfiso Benard Nxumalo https://creativecommons.org/licenses/by/4.0
date: 2025-03-14
publication date: 2025-03-14
doi: 10.2218/eslr.2025.5.2.10674

Back To Quo Warranto
type: item
description: .
subject: General Articles
  topic: section
creator: Martina Cerna
rights: Copyright (c) 2025 Martina Cerna https://creativecommons.org/licenses/by/4.0
date: 2025-03-14
publication date: 2025-03-14
doi: 10.2218/eslr.2025.5.2.10673

The Right To Education For Children On The Move
type: item
description: While the right to education has near universal acknowledgment and ratification, its application falls short of this global promise. One group that continues to face struggles in claiming their right to education are ‘children on the move’, a term chosen specifically due to its inclusive nature as an umbrella term for all children who have left their habitual residence. This purposefully does not distinguish between legal status groups such as refugees, asylum seekers, migrants, internally displaced children, or unaccompanied and separated children. Through in-depth case studies in Morocco and Lebanon, this paper has supported the claim that by assigning children different legal status, states are de facto limiting their right to education. The case studies of mainly irregular migrants Morocco and people fleeing Syria in Lebanon provide for examples of such discrimination based on status, as both states have established barriers that in effect exclude certain groups from education while including others. While not all hurdles are necessarily legal, the picture that emerges out of the case studies is that children with refugee status and protection from the UNHCR face barriers within schools, while those without lack access to schools due to the legislative barrier. Children afforded refugee status suffer from racism and hatred, language and religious difficulties, and overcrowding. Children without such status, face these difficulties yet coupled with systematic exclusion through document availability and fear of deportation or violence. The international right that is universally protected, is therefore fragmented into legal status, limiting the right to education for all children into a status-based reality.
subject: General Articles
  topic: section
creator: Nya Gnaegi
rights: Copyright (c) 2025 Nya M. Gnaegi https://creativecommons.org/licenses/by/4.0
date: 2025-03-14
publication date: 2025-03-14
doi: 10.2218/eslr.2025.5.2.10672

Enforcing Restrictive Measures Against Russia Through Criminal Law
type: item
description: .
subject: General Articles
  topic: section
creator: Lorenzo Bernardini
creator: Leonardo Romanò
rights: Copyright (c) 2025 Lorenzo Bernardini, Leonardo Romanò https://creativecommons.org/licenses/by/4.0
date: 2025-03-14
publication date: 2025-03-14
doi: 10.2218/eslr.2025.5.2.10671

Editorial for the Special Issue
type: item
subject: Editorials
  topic: section
creator: Gokce Kolukisa
creator: Jin Wang
creator: Xinyu Lyu
creator: Muhammet Dervis Mete
rights: Copyright (c) 2025 Gokce Kolukisa, Jin Wang, Xinyu Lyu, Muhammet Dervis Mete https://creativecommons.org/licenses/by/4.0
date: 2025-03-14
publication date: 2025-03-14
doi: 10.2218/eslr.2025.5.2.10670

Editorial for the 2024 Issue of ESLR
type: item
subject: Editorials
  topic: section
creator: Natalie Fowler
creator: Vaishnavi Srikanth
creator: Sukru Kagan Surucu
rights: Copyright (c) 2024 Natalie Fowler, Vaishnavi Srikanth, Sukru Kagan Surucu https://creativecommons.org/licenses/by/4.0
date: 2024-11-05
publication date: 2024-11-05
doi: 10.2218/eslr.2024.5.1.10010

An In-Depth Examination of the International Climate Regime: Spotlight on Nationally Determined Contributions and Paris Agreement Compliance
type: item
description: -
subject: General Articles
  topic: section
creator: Margaux Bouniol
rights: Copyright (c) 2024 Margaux Bouniol https://creativecommons.org/licenses/by/4.0
date: 2024-11-05
publication date: 2024-11-05
doi: 10.2218/eslr.2024.5.1.10008

Defending the Best Interest Principle: Caring for Critically Ill Children
type: item
description: -
subject: General Articles
  topic: section
creator: Ambareen Huq
rights: Copyright (c) 2024 Ambareen Huq https://creativecommons.org/licenses/by/4.0
date: 2024-11-05
publication date: 2024-11-05
doi: 10.2218/eslr.2024.5.1.10007

To Break the Fourth Wall: A Comparative Approach to Scottish Ministers, Petitioners
type: item
description: The decision of the Secretary of state for Scotland to use a section 35 order to 'veto' the Gender Recognition Reform (Scotland) Bill was met with controversy. In some quarters, it was considered a necessary means of prevening the Scottish Parliament from interfering with UK-wide equality law. In others, it was branded as an unacceptable intrustion on the devolved law-making competences of the Scottish Parliament. This article will examine the situation across the pond and invoke the jurisprudence of the Supreme Court of the United States in order to conclude that there is nothing unusual, or even sinister about the use of section 35 in this instance.
subject: General Articles
  topic: section
subject: Devolution
  topic: keywords
subject: Human Rights
  topic: keywords
creator: Samuel Etchells
rights: Copyright (c) 2024 Samuel Etchells https://creativecommons.org/licenses/by/4.0
date: 2024-11-05
publication date: 2024-11-05
doi: 10.2218/eslr.2024.5.1.9740

The Strange Case of an Agent Acting for an Unidentified Principal
type: item
description: The concept of disclosed – but unidentified agency – generates a high level of uncertainty for third parties in Scotland. The article attempts to untangle the web of three leading Inner House cases, namely, Ferrier v Dods, Lamont, Nisbet & Co v Hamilton, and Ruddy v Monte Marco & ors, demonstrating that there is no established approach to unidentified agency in our jurisdiction. Furthermore, the paper evaluates three possible approaches to unidentified agency: the absence of a general rule of liability (Lamont), the general rule of liability against (1) the agent (Ruddy), or (2) the principal (cf Ruddy), and finally, the general rule that the agent is liable, but only unless – and until – he names the principal (Ferrier). In agreement with Professor Macgregor’s interpretation of Ferrier, the article concludes that the agent should be liable only ‘unless and until the principal is disclosed.’ In other words, the agent should be seen as intervening in the contract between the principal and third party ab initio, automatically absolved from liability by naming the principal. Such an approach would accurately reflect where the third party’s consent lies, adequately address the practical difficulty of identifying the principal, and be in consistence with the position taken by some leading European law instruments, with which Scottish agency law shares a common tradition. The proposed solution is not uncontroversial due to the general principle of privity. However, it could be accommodated as an exception to the privity doctrine on the basis of practical necessity – or, more persuasively, by the emerging doctrine of good faith in Scots law.
subject: General Articles
  topic: section
creator: Nadia Napieraj
rights: Copyright (c) 2024 Nadia Napieraj https://creativecommons.org/licenses/by/4.0
date: 2024-11-05
publication date: 2024-11-05
doi: 10.2218/eslr.2024.5.1.9716

Seabed Trawling on the High Seas: Legislating Environmentally Damaging Fishing Techniques Beyond National Jurisdiction
type: item
description: This paper explores international law which could protect marine life on the High Seas from environmentally damaging fishing techniques, particularly that of seabed trawling which has become a big contributor to CO2 emissions in addition to marine habitat destruction. It compares the markedly rapid international response to driftnet fishing to the current problem of seabed trawling, while analyzing UNCLOS legislation on environmental degradation on the High Seas. Furthermore, this paper analyses the sway and power of Regional Fisheries Management Organisation's in responding to environmentally damaging fishing techniques within their jurisdiction. Finally the BBNJ treaty, not yet in force, is analysed to determine how it will impact protections for marine life from environmentally damaging fishing practices on the High Seas.
subject: General Articles
  topic: section
subject: High Seas
  topic: keywords
subject: Fishing
  topic: keywords
subject: RFMO
  topic: keywords
subject: International Law
  topic: keywords
subject: Climate Change
  topic: keywords
creator: Bryn Barraclough
rights: Copyright (c) 2024 Bryn Barraclough https://creativecommons.org/licenses/by/4.0
date: 2024-11-05
publication date: 2024-11-05
doi: 10.2218/eslr.2024.5.1.9712

The Subtle Art of Compromise and the International Financial Architecture
type: item
description: In this essay, the argument is embraced that the most serious limitation of the international financial architecture is its dubious ability to cope with the everchanging political and diplomatic dimensions of the interconnected economic systems of our contemporaneity. Simultaneously, the key characteristic of the workings of the international financial architecture (i.e. a widespread reliance on soft law) is not looked at as a shortcoming in and of itself, but as a consequence of the balancing between political discordance and the necessity to find compromises for the benefit of the world's population.
subject: General Articles
  topic: section
creator: Augusto Aquila
rights: Copyright (c) 2024 Augusto Aquila https://creativecommons.org/licenses/by/4.0
date: 2024-11-05
publication date: 2024-11-05
doi: 10.2218/eslr.2024.5.1.9710

Has the International Climate Regime Failed and Missed Its Purpose? Loss and Damage and Human Rights Perspective
type: item
description: In recent years, as the impact of climate change has become increasingly serious, the international climate change regime has been accused of failure and is considered to have deviated from its original goals. This article analyzes the rationality of the above view from the perspectives of loss and damage and human rights protection. In terms of dealing with loss and damage, the international climate change regime has established a preliminary framework to address this issue and has increased the attention of countries to loss and damage. However, it is not practical enough. Developed countries evade historical responsibility and are unwilling to deal with it separately from mitigation and adaptation. At the same time, there is a lack of funds and it is unable to support the effective operation of relevant mechanisms. In terms of human rights protection, the climate regime has established a basic protection framework and provided a basis for climate litigation. However, there is a lack of specific implementation clauses and sufficient legally binding force, and it has achieved little in solving problems such as insufficient public participation, inadequate protection of the rights and interests of vulnerable groups, and climate migration. In summary, although the international climate change regime has made some progress in the legislative framework, it has almost failed due to insufficient practical operational capacity and it is difficult to achieve the expected goals. In the future, it is urgent to further refine the implementation rules, strengthen the mandatory nature of relevant laws, and provide sufficient and stable financial support for mechanisms such as loss and damage, so as to promote substantial breakthroughs in climate governance.
subject: General Articles
  topic: section
subject: Climate Change
  topic: keywords
subject: Loss and damage
  topic: keywords
subject: Human rights
  topic: keywords
creator: Yingqi Wang
rights: Copyright (c) 2024 Yingqi Wang https://creativecommons.org/licenses/by/4.0
date: 2024-11-05
publication date: 2024-11-05
doi: 10.2218/eslr.2024.5.1.9709

Reforming Rescue Mechanisms: A Close Examination of Part 26a in the Companies Act 2006
type: item
description: A primary focus for governments globally is to strengthen their insolvency framework by introducing a flexible and versatile mechanism to provide maximum aid to financially distressed businesses with limited disruptions to their operations. Such measures would serve as a pillar for economic and financial stability by fortifying efficiency, maximizing creditors’ return, preserving the value of the business, and promoting employment. The UK has been considered the centre for insolvency and restructuring avenues in the world providing effective insolvency law, an esteemed judiciary, and a hub for business-friendly investment. To strengthen its position amidst the Covid-19 pandemic, the UK introduced reforms under the Corporate Insolvency and Governance Act, 2020 (CIGA). A key reform introduced is the restructuring plan. The article will examine the effectiveness of the new scheme against the backdrop of existing rescue mechanisms available in the UK. This article will primarily examine the current rescue mechanism and identify the gaps prevalent in the system. Subsequently, the article will identify the measures introduced under CIGA. This will be followed by the need to introduce a new super scheme and its overall effectiveness to achieve the intended purpose of its enactment. To conclude, this article upholds the notion that a restructuring plan is an efficient instrument in the corporate rescue landscape and provides essential fundamental recommendations to strengthen the plan.
subject: General Articles
  topic: section
creator: Swati Narayanan
rights: Copyright (c) 2024 Swati Narayanan https://creativecommons.org/licenses/by/4.0
date: 2024-11-05
publication date: 2024-11-05
doi: 10.2218/eslr.2024.5.1.9706

A Critical Analysis on the Regulation and Sanctioning of Wrongful and Fraudulent Trading
type: item
description: This article will consider whether the current systems for regulating, and sanctioning wrongful and fraudulent trading is adequate to deter directors from committing such offences. Directors may be found liable for these offences if they continue trading after knowing or when they ought to have known that the company is insolvent or impending insolvency. During this time, their conduct may be investigated by an independent practitioner. Directors have a fiduciary relationship with their companies and thus owe various fiduciary duties to the companies. Such duties are regulated by the Companies Act 2006 and aim to prevent director malpractice such as wrongful and fraudulent trading. Wrongful trading, introduced as an extension of fraudulent trading, is a civil offence under Section 214 of the Insolvency Act 1986. Fraudulent trading, however, is both a civil offence under Section 213 of the Insolvency Act 1986, and criminal offence under Section 993 of the Companies Act 2006. The main element here is intention to defraud. Though a finding of fraudulent trading is less common nowadays since the introduction of wrongful trading, issues surrounding the subject is nonetheless present. When a director has been found liable of wrongful or fraudulent trading, they may be ordered by the court to contribute to the company’s assets. This amount is dependent on the loss caused by the director resulting from their offence, however, if they cannot provide the funds; creditors may be left improperly compensated. Additionally, liable directors may face disqualification. In conclusion, this paper will consider whether the current schemes are effective for the prevention of directorial misconduct in relation to wrongful trading and fraudulent trading.
subject: General Articles
  topic: section
creator: Xuan Mao
rights: Copyright (c) 2024 Xuan Mao https://creativecommons.org/licenses/by/4.0
date: 2024-11-05
publication date: 2024-11-05
doi: 10.2218/eslr.2024.5.1.9703

Trust: In Search of the Core Features
type: item
description: It has been a long time ago that trusts arrived in different non-common law jurisdictions. Its worldwide adoption, however, has risen some doubts about what are the essential elements that must be present in this legal device. Different scholars have proposed what is called the “essentials” of a trust. This contribution aims to provide another alternative to this doctrine. After some preventions regarding the scope of this work, and using the English, Scottish and Argentinian cases, it is concluded that a trust ­– for being a proper trust – must fulfilled three requisites: (i) the settlor must not have control over the trust assets; (ii) the trustee must act under an standard of conduct and fiduciary duties; and (iii) the trustee must benefit someone (the beneficiary) or fulfil a purpose. Nevertheless, this is not enough to justify their essentiality when setting up a trust: they are also core features because their absence threats its validity and existence.
subject: General Articles
  topic: section
subject: Trust
  topic: keywords
subject: Essentials
  topic: keywords
subject: Trustee
  topic: keywords
subject: Settlor
  topic: keywords
subject: Beneficiary
  topic: keywords
subject: Void
  topic: keywords
subject: Inexistence
  topic: keywords
subject: Purpose
  topic: keywords
creator: Diego Montecino
rights: Copyright (c) 2024 Diego Montecino https://creativecommons.org/licenses/by/4.0
date: 2024-11-05
publication date: 2024-11-05
doi: 10.2218/eslr.2024.5.1.9701