Common Mistake in Contract Law

English law has long struggled to understand the effect of a fundamental common mistake in contract formation. Bell v Lever Brothers Ltd [1932] AC 161 recognises that a common mistake which totally undermines a contract renders it void. Solle v Butcher [1950] 1 KB 671 recognises a doctrine of 'mistake in equity' under which a serious common mistake in contract formation falling short of totally undermining the contract could give an adversely affected party the right to rescind the contract. This article accepts that the enormous difficulty in differentiating these two kinds of mistake justifies the insistence by the Court of Appeal in The Great Peace [2003] QB 679 that there can be only one doctrine of common mistake. However, the article proceeds to argue that where the risk of the commonly mistaken matter is not allocated by the contract itself a better doctrine would be that the contract is voidable.

Review: G. De Búrca and J. Scott (eds.), Law and New Governance in the EU and the US (Hart, 2006)

Review of edited collection.

Review: M. Dougan and E. Spaventa (eds.), Social Welfare and EU Law (Hart, 2005)

Review of edited collection.

Inter-Agency Evidence Sharing in Competition Law Enforcement

While transnational antitrust enforcement is becoming only more common, the access to foreign-based evidence remains a considerable practical challenge. This article appraises considerations and concerns surrounding confidentiality, and looks into ways of their possible accommodation. It further identifies and critically evaluates the existing mechanisms allowing for inter-agency confidential information/ evidence sharing in competition law enforcement. The article outlines the shortcomings of the current framework and points to novel unilateral approaches. In the latter regard the focus is devoted to Australia, where the competition agency is empowered to share confidential information with foreign counterparts, also without any underlying bilateral agreement and on a non-reciprocal basis. This solution shows that a pragmatic and workable approach to inter-agency evidence sharing can be achieved.

Time for Reform? Refugees, Asylum-seekers and Protection Under International Human Rights Law

The aim is to explore the protection that international human rights law offers to refugees, asylum-seekers, and the forcibly displaced. The ambition of the global rights framework is to guarantee a defined range of rights to all human beings, and thus move the basis for normative entitlement from exclusive reliance on national membership to a common humanity. This comprehensive and international perspective remains formally tied to states - acting individually or collectively - in terms of creation and implementation. The norms must find an entry point into the empirical world, and there must be clarity on responsibilities for practical delivery. It should remain unsurprising that the expectations raised by the normative reach of the law are frequently dashed in the complex and difficult human world of instrumental politics, power, and conflict. The intention here is to outline the international human rights law context, and indicate the value and limitations for the protection of refugees and asylum-seekers. A question is then raised about possible reform.

Contribution of sewage organic matter to the diet of the common limpet near the former outflow at Blackhead, Northern Ireland

Stable isotopes (δ13C, δ15N) have been used to document the utilisation of sewage effluent in coastal marine foodwebs in a number of studies (e.g. Rau et al. 1981; Risk et al. 2009; Rogers 1999; 2003). δ13C and, especially, δ15N showed clear differences in the diet of common limpets (Patella vulgata) collected in June 2010 near the untreated sewage outfall at Blackhead, Northern Ireland and a ‘clean’ site nearby. Because sewage contains a significant portion of fossil-fuel derived compounds (Law et al. 2013), 14C measurements enabled us to estimate the contribution of fossil carbon to the effluent and to the foodweb and hence of the level of sewage contamination. The effluent was found to contain 12.2 ± x % fossil carbon on the day sampled. The modern marine carbon endmember is enriched by the discharge from the Sellafield nuclear fuel reprocessing plant across the Irish Sea (c.f. Cook et al. 2004) so 14C analyses of samples from the ‘clean’ site were needed. We found that 38.5 ±x % of the diet of common limpets collected near the sewage was derived from fossil fuel. We plan to collect samples from the same two sites in June 2014 to establish whether the 2012 relocation of the outfall, with preliminary treated discharge farther out to sea has eliminated the contamination at Blackhead

Intersectionality and the Notion of Disability in EU discrimination law

Defining the characteristics targeted by banning discrimination constitutes a central challenge for EU discrimination law, and defining disability is particular-ly challenging due to the dispute around the very concept of disability. From 2006, the Court of Justice has wrestled with this definition in six judgments, five of which were delivered from 2013. Instead of classifying the case law definition as conforming to a medical or social model of disability, this article analyses the case law with a view to illustrate challenges of defining discrimination grounds generally, demanding that a sufficiently precise and non-exclusive definition of each discrimination ground can be achieved by re-focusing EU discrimination law around the nodes of sex, race and disability. The analysis exposes that the ECJ definition of disability neither complies with the UN CRPD nor adequately responds to intersectionality theory, for example because the definition is exclu-sionary in relation to female experience of disability.

The Dark Side of Nudging: The Ethics, Political Economy, and Law of Libertarian Paternalism

Libertarian paternalism, as advanced by Cass Sunstein, is seriously flawed, but not primarily for the reasons that most commentators suggest. Libertarian paternalism and its attendant regulatory implications are too libertarian, not too paternalistic, and as a result are in considerable tension with ‘thick’ conceptions of human dignity. We make four arguments. The first is that there is no justification for a presumption in favor of nudging as a default regulatory strategy, as Sunstein asserts. It is ordinarily less effective than mandates; such mandates rarely offend personal autonomy; and the central reliance on cognitive failures in the nudging program is more likely to offend human dignity than the mandates it seeks to replace. Secondly, we argue that nudging as a regulatory strategy fits both overtly and covertly, often insidiously, into a more general libertarian program of political economy. Thirdly, while we are on the whole more concerned to reject the libertarian than the paternalistic elements of this philosophy, Sunstein’s work, both in Why Nudge?, and earlier, fails to appreciate how nudging may be manipulative if not designed with more care than he acknowledges. Lastly, because of these characteristics, nudging might even be subject to legal challenges that would give us the worst of all possible regulatory worlds: a weak regulatory intervention that is liable to be challenged in the courts by well-resourced interest groups. In such a scenario, and contrary to the ‘common sense’ ethos contended for in Why Nudge?, nudges might not even clear the excessively low bar of doing something rather than nothing. Those seeking to pursue progressive politics, under law, should reject nudging in favor of regulation that is more congruent with principles of legality, more transparent, more effective, more democratic, and allows us more fully to act as moral agents. Such a system may have a place for (some) nudging, but not one that departs significantly from how labeling, warnings and the like already function, and nothing that compares with Sunstein’s apparent ambitions for his new movement.

Thanking the Greeks: The Crisis of the Rule of Law in EU Enlargement Regulation

This paper showcases the weaknesses of EU enlargement law and demonstrates how one Member State – namely, Greece – is notable for abusing this weakness, for harming the candidate countries, the EU, and the institutions alike, for stripping the EU position of its predictability, and for undermining the EU Commission’s efforts. Accordingly, Greece has severely incapacitated the key procedural rule of law component of the EU’s enlargement regulation, turning it into a randomised political game and ignoring any long-term goals of stability, prosperity, and peace that the process is to stand for. Following a walk through Greece’s engagement throughout a number of enlargement rounds, the paper concludes that the duty of loyalty – which is presumably able to discipline Member States that undermine the common effort – should find a new meaning in the context of EU enlargement.