The Corporate Manslaughter and Corporate Homicide Act 2007 or the Health and Safety (Offences) Act 2008: corporate killing and the law

This thesis examines the regulatory and legislative approach taken in the United Kingdom to deal with deaths arising from work related activities and, in particular, deaths that can be directly attributed to the behaviour of corporations and other organisations. Workplace health and safety has traditionally been seen in the United Kingdom as a regulatory function which can be traced to the very earliest days of the Industrial Revolution. With an emphasis on preventing workplace accidents and ill-health through guidance, advice and support, the health and safety legislation and enforcement regime which had evolved over the best part of two centuries was considered inadequate to effectively punish corporations considered responsible for deaths caused by their activities following a series of disasters in the late twentieth and early twenty-first centuries. To address this apparent inadequacy, the Corporate Manslaughter and Corporate Homicide Act 2007 was introduced creating the offence of corporate manslaughter and corporate homicide. Based on a gross breach of a relevant duty of care resulting in the death of a person, the Act effectively changed what had previously considered a matter of regulation, an approach that had obvious weaknesses and shortcomings, to one of crime and criminal law. Whether this is the best approach to dealing with deaths caused by an organisation is challenged in this thesis and the apparent distinction between ‘criminal’ and ‘regulatory’ offences is also examined. It was found that an amended Health and Safety at Work etc. Act 1974 to include a specific offence of corporate killing, in conjunction with the Health and Safety (Offences) Act 2008 would almost certainly have resulted in a more effective approach to dealing with organisations responsible for causing deaths as consequence of their activities. It was also found that there was no substantive difference between ‘regulatory’ and ‘criminal’ law other than the stigma associated with the latter, and that distinction would almost certainly disappear, at least in the context of worker safety, as a consequence of the penalties available following the introduction of the Health and Safety (Offences) Act 2008.

A critical analysis of the prospects for the effective development of a regional approach to competition law in the ASEAN region

This thesis is an examination of the ASEAN’s prospects in establishing regional competition policy in the Southeast Asia region, a topic of contemporary relevance in light of the ASEAN’s recent foray into the economic integration field on 31 December 2015. It questions whether the current approach undertaken by the ASEAN could contribute to an effective regional competition policy under the regional market integration. In answering this question, the thesis first critically surveys the current terrain of regional competition laws and policies in order to determine the possible existence of an optimal template. It argues that although the EU model is oft used as a source of inspiration, each regional organisation conceives different configurations of the model in order to best adjust to the local regional contexts. The thesis makes an inquiry into the narratives of the ASEAN’s competition policy, as well as the ASEAN’s specific considerations in the development of competition policy, before comparing the findings to the actual approaches taken by the ASEAN in its pursuit of regional competition policy. This thesis reveals that the actual approach taken by the ASEAN demonstrates an important discrepancy from the economic integration goal. The ASEAN applies a soft harmonisation approach regarding substantive competition law while refraining from establishing a centralised institution or a representative institution. The sole organ with regards to competition policy at the regional level is an expert organ. The thesis also conducts an investigation into the reception of the ASEAN’s regional policy by the member states in order to ascertain the possibility of the achievement of the ASEAN’s aspiration of regional competition policy. The study reveals that despite some shared similarities in the broad principles of competition law amongst the member states, the various competition law regimes are not harmonised thus creating challenging obstacle to the ASEAN’s ambition. The thesis then concludes that the ASEAN’s approach to regional competition law is unlikely to be effective.

Normative conflicts in international investment law: the case of environmental law

This dissertation investigates the relationship between investment and environmental obligations from the perspective of international investment law. In order to do so, the dissertation will consider how these obligations might enter into conflicts and what tools are available to investment tribunals to solve these normative conflicts. The dissertation analyses in order interpretative techniques, conflict resolution tools available in general international law, as expressed in the Vienna Convention on the Law of Treaties, and finally express clauses in international investment agreements. The dissertation includes the review of some relevant case law arising from investment agreements in investment treaty tribunals, to discover how in practice these conflict resolution tools are applied and to assess their effectiveness. This dissertation places itself squarely within the debate between the unity and the fragmentation of international law; therefore it tackles the issue of normative conflicts resolution in a dispute settlement environment with the view of gauging their value in maintaining the unity of international law and defuse the risk of fragmentation. The dissertation can only conclude that much work remains to be done, including by providing a more comprehensive taxonomy of possible interventions, both on the legal and political sphere.

An analysis of state crime: negotiating multiple insecurities around the U.S. Mexico Border

This research looks into forms of state crime taking place around the U.S.-Mexico border. On the Mexican side of the border violent corruption and criminal activities stemming from state actors complicity with drug trafficking organisations has produced widespread violence and human casualty while forcing many to cross the border legally or illegally in fear for their lives. Upon their arrival on the U.S. side of the border, these individuals are treated as criminal suspects. They are held in immigration detention facilities, interrogated and categorised as inadmissible ‘economic migrants’ or ‘drug offenders’ only to be denied asylum status and deported to dangerous and violent zones in Mexico. These individuals have been persecuted and victimised by the state during the 2007-2012 counter narcotic operations on one side of the border while criminalised and punished by a categorizing anti-immigration regime on the other side of the border. This thesis examines this border crisis as injurious actions against border residents have been executed by the states under legal and illegal formats in violation of criminal law and human rights conventions. The ethnographic research uses data to develop a nuanced understanding of individuals’ experiences of state victimisation on both sides of the border. In contributing to state crime scholarship it presents a multidimensional theoretical lens by using organised crime theoretical models and critical criminology concepts to explain the role of the state in producing multiple insecurities that exclude citizens and non-citizens through criminalisation processes.

Towards participatory political theology: democratic consolidation in Southeastern Europe and the role of Eastern Christianity in the process

This thesis defends the position that the Eastern Orthodoxy has the potential to develop, on the basis of its core concepts and doctrines, a new political theology that is participatory, personalist and universalist. This participatory political theology, as I name it, endorses modern democracy and the values of civic engagement. It enhances the process of democracy-building and consolidation in the SEE countries through cultivating the ethos of participation and concern with the common good among and the recognition of the dignity and freedom of the person. This political-theological model is developed while analyzing critically the traditional models of church-state relations (the symphonia model corresponding to the medieval empire and the Christian nation model corresponding to the nation-state) as being instrumentalized to serve the political goals of non-democratic regimes. The participatory political-theological model is seen as corresponding to the conditions of the constitutional democratic state. The research is justified by the fact the Eastern Orthodoxy has been a dominant religiouscultural force in the European South East for centuries, thus playing a significant role in the process of creation of the medieval and modern statehood of the SEE countries. The analysis employs comparative constitutional perspectives on democratic transition and consolidation in the SEE region with the theoretical approaches of political theology and Eastern Orthodox theology. The conceptual basis for the political-theological synthesis is found in the concept and doctrines of the Eastern Orthodoxy (theosis and synergy, ecclesia and Eucharist, conciliarity and catholicity, economy and eschatology) which emphasize the participatory, personalist and communal dimensions of the Orthodox faith and practice. The paradigms of revealing the political-theological potential of these concepts are the Eucharistic ecclesiology and the concept of divine-human communion as defining the body of Orthodox theology. The thesis argues that with its ethos of openness and engagement the participatory political theology presupposes political systems that are democratic, inclusive, and participatory, respecting the rights and the dignity of the person. The political theology developed here calls for a transformation and change of democratic systems towards better realization of their personalist and participatory commitments. In the context of the SEE countries the participatory political theology addresses the challenges posed by alternative authoritarian political theologies practiced in neighboring regions.

An appraisal of the implementation of freedom of association as a labour right: Nigerian perspective

No abstract available.

Public interests in water concession disputes

The flux of foreign investment into the water industry led to the internationalisation of contracts and of the method of settlement of possible disputes. When disputes over the performance of a water concession give origin to investor-state arbitrations, public authorities are put in a challenging position. The state need to combine two different roles – its role in the provision of services of public interest and the fulfilment of its international legal obligations arising from international investment agreements. The complexity of this relationship is patent in a variety of procedural and substantive issues that have been surfacing in arbitration proceedings conducted before the International Centre for Settlement of Investment Disputes. The purpose of this dissertation is to discuss the impact of investment arbitration on the protection of public interests associated with water services. In deciding these cases arbitrators are contributing significantly in shaping the contours and substance of an emerging international economic water services regime. Through the looking glass of arbitration awards one can realise the substantial consequences that the international investment regime has been producing on water markets and how significantly it has been impacting the public interests associated with water services. Due consideration of the public interests in water concession disputes requires concerted action in two different domains: changing the investment arbitration mechanism, by promoting the transparency of proceedings and the participation of non-parties; and changing the regulatory framework that underpins investments in water services. Combined, these improvements are likely to infuse public interests into water concession arbitrations.

Establishing continental sovereignty in Africa: risk and opportunity in financial integration - lessons for Africa from a legal perspective

This thesis identifies and defines the new African sovereignty. It establishes a modern sovereignty in Africa hatched from the changing nature of sovereignty in which countries come together at various levels or grades of partial surrender of national sovereignty in order to work closer together for their mutual advantage and benefit. To this end, the narrative zooms in on the central issues within the realms of money matters whereby a new model of monetary sovereignty and monetary solutions is designed in an attempt to ease the recurring tensions and challenges of modern national sovereignty in the continent of Africa. As such, this discussion will offer a historical journey through the constitution of sovereignty, to the birth of the nation state and international public law. It develops the theory of the changing nature of sovereignty within the modern state and opens new lines of inquiry for Africa. In this regard, it draws from juxtaposing and mixing elements of regional and global financial integration as well as retaining national financial sovereignty features to form this new design which I dub continental sovereignty. At its core, the thesis will deal with the legal aspects that stem from the co-mingling of legal systems of nation states and communities at the regional and global levels within the context of financial integration. The argument is that the rule of law remains sacrosanct in monetary management. Effective financial integration is the result of properly structured and managed legal frameworks with robust laws and institutions whether at a national, regional or global level. However, the thesis reveals that in order to avoid undermining the progress of Africa’s financial integration project, any solution for Africa must be immersed within a broader global solution where development issues are addressed and resolved and Africa can form a more central part in all relevant international discussion fora. The work will expound these issues by applying them within a regional and global context, with the state of affairs in Africa forming the nucleus. This application consequently presents the six key themes of the thesis which will be considered therein. They are: a.) regional advantage: which exploits the possibilities of deeper and further financial integration between smaller communal arrangements; b.) regional risk and exposure: the extent to which this deeper form of financial integration can spiral out of control if effected too quickly and too ambitiously; c.) global advantage: which considers the merits of global financial integration and the influence exerted by financial laws on the global financial architecture; d.) global risk and exposure: which considers the challenges of global financial integration especially within the background of the Global Financial Crisis 2007-2008; e.) African challenge: which considers the extent to which this analysis impacts the African economic and financial integration agenda; and f.) development challenge: which examines the extent to which global development issues impact the African solution (continental sovereignty) and the need for any solution for the continent to be roped into a broader global solution within which Africa can form an important part. Even though the thesis requests an optimistic undertone on the progress made so far, it unearths the African problem of multiple national sovereignty and multiple overlapping regional sovereignty constituted as the ‘spaghetti bowl’ dilemma. As such, the unique contribution to knowledge on financial integration in Africa can be echoed in these words: Africa‘s financial integration agenda has had little success in authenticating a systematic and dependable legal framework for monetary management. Efforts made have been incomplete, substandard, and not carefully followed through particularly reflected in the impuissant nature of the judicial enforcement mechanisms. Thus, the thesis argues that, any meaningful answer to the problems dogging the continent is inter alia deeply entrenched within a new form of cooperative monetary sovereignty. In other words, the thesis does not prescribe the creation of new laws; rather it advocates the effective enforcement of existing laws.

Administrative justice and the control of bureaucratic decision-making: A study investigating how decision-makers in local authority education departments respond to the work of redress mechanisms

This socio-legal thesis has explored the factors responsible for explaining whether and how redress mechanisms control bureaucratic decision-making. The research considered the three principal institutions of administrative justice: courts, tribunals, and ombudsman schemes. The field setting was the local authority education area and the thesis examined bureaucratic decision-making about admissions to school, home-to-school transport, and Special Educational Needs (SEN). The thesis adopted a qualitative approach, using interviews and documentary research, within a multiple embedded case study design. The intellectual foundations of the research were inter-disciplinary, cutting across law, socio-legal studies, public administration, organization studies, and social policy. The thesis drew on these scholarly fields to explore the nature of bureaucratic decision-making, the extent to which it can be controlled and the way that learning occurs in bureaucracies and, finally, the extent to which redress mechanisms might exercise control. The concept of control was studied across all its dimensions – in relation both to ex post control in specific cases and the more challenging notion of ex ante or structuring control. The aim of the thesis was not to measure the prevalence of bureaucratic control by redress mechanisms, but to understand the factors that might explain its presence or absence in a particular area. The findings of the research have allowed for a number of analytical refinements and extensions to be made to existing theoretical and empirical understandings. 14 factors, along with 87 supporting propositions, have been set out with the aim of making empirically derived suggestions which can be followed up in future research. In terms of the thesis’ contribution to existing knowledge, its comparative focus and its emphasis on the broad notion of control offered the potential for new insights to be developed. Overall, the thesis claims to have made three contributions to the conceptual framework for understanding the exercise of control by redress mechanisms: it emphasizes the importance of ‘feedback’ in relation to the nature of the cases referred to redress mechanisms; it calls attention to the structure of bureaucratic decision-making as well as its normative character; and it discusses how the operational modes of redress mechanisms relate to their control functions.