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Corporations and the Duty to Obey the Law

in The Failure of Corporate Law: Fundamental Flaws and Progressive Possibilities

Most corporate law scholars seem not to care much about corporate crime. While courts hearing corporate law cases do occasionally talk in principle about the firm's duty to obey the law, these cases ... More

Most corporate law scholars seem not to care much about corporate crime. While courts hearing corporate law cases do occasionally talk in principle about the firm's duty to obey the law, these cases tend to arise in situations in which the violation of law ended by costing the shareholders money. This chapter argues in favor of bringing lawsuits against corporations breaking the law on the grounds that illegality is “ultra vires,” beyond the power of the corporation. If recognized, this theory would allow a shareholder to sue the company to enjoin its violation of international law. The chapter first examines whether corporations have a duty to obey the law. It then discusses the ultra vires doctrine, illegal activities by corporations and the duty to obey the law as ultra vires, and why a firm's stakeholders would not want the corporation to break the law. The chapter also examines two serious problems in applying the ultra vires doctrine as outlined here: the problem of unclear law and the problem of “law-as-price.”Less

The Decision to Use Contract

A C L Davies

in The Public Law of Government Contracts

This chapter is concerned with the early stages of the contracting process, with decisions to use contracts as the means of obtaining the goods and services the government requires. From a public law ... More

This chapter is concerned with the early stages of the contracting process, with decisions to use contracts as the means of obtaining the goods and services the government requires. From a public law perspective, it is important that there are mechanisms in place to ensure that the government is accountable for its choices. In terms of political accountability, the chapter examines opportunities for Parliament to become involved in the determination of government contracting policy through its ability to grant contracting powers and to control the government's expenditure. In terms of legal accountability, the chapter considers the courts' role in assessing whether or not the government has interpreted its legal powers correctly, through the doctrine of ultra vires. Finally, in terms of public accountability, the chapter assesses whether there are any opportunities for public participation or consultation in the determination of contracting policies.Less

Constitutional Foundations of Judicial Review

T. R. S. Allan

in The Sovereignty of Law: Freedom, Constitution and Common Law

The ultra vires doctrine of administrative law, which confines a public authority to the jurisdiction conferred by Parliament, has been challenged by a common law theory of judicial review: the power ... More

The ultra vires doctrine of administrative law, which confines a public authority to the jurisdiction conferred by Parliament, has been challenged by a common law theory of judicial review: the power of the courts to enforce the rule of law does not depend on legislative intent or instruction. While it is right to insist on the fundamental status of the common law as a framework of principles of legality, we can understand a reference to legislative intent (and hence ultra vires) as a mark of respect for the specific administrative context. Adaptation to context is critical to the proper reconciliation of legality and democracy, making the rule of law sensitive to the nature of the powers and functions delegated to public agencies. The debate over ultra vires makes sense only in an interpretative context that addresses fundamental questions of legality, sovereignty, and democracy.Less

Attribution of Conduct to the United Nations

Antonios Tzanakopoulos

in Disobeying the Security Council: Countermeasures against Wrongful Sanctions

For the international responsibility of the UN to be engaged, conduct susceptible of violating international law must be attributable to the UN rather than some other actor (e.g., a Member State). ... More

For the international responsibility of the UN to be engaged, conduct susceptible of violating international law must be attributable to the UN rather than some other actor (e.g., a Member State). This chapter discusses the types of conduct in which the Security Council engages and the types of conduct that the Security Council strictly imposes on Member States. It argues that normative conduct of the Security Council, including ultra vires conduct, is automatically attributable to the UN. But it also argues that Member State conduct taken in implementation of Security Council commands is attributable directly to the UN, because it is normatively controlled by the Security Council's decision. This normative control amounts to effective control.Less

The Powers of Local Government

Ian Leigh

in Law, Politics, and Local Democracy

This chapter discusses the position of councils with regards to the courts. It explores the significance of the distinctive legal form which local authorities take and the implications of the ultra ... More

This chapter discusses the position of councils with regards to the courts. It explores the significance of the distinctive legal form which local authorities take and the implications of the ultra vires rule, together with proposals for its reform. It argues that corporations are inappropriate vehicles for representing democratic interests. Research published by the Department of the Environment, Transport, and the Regions (DETR) found that the proposed new duty was seen by councils as a positive power which expressed the confidence of the central government in them and signified a change of mood in central–local relations. The White Paper's proposal of an ‘overarching duty’ suggested a provision of quasi-constitutional significance, defining the mission of local government.Less

Restitution from Public Authorities

Graham Virgo

in The Principles of the Law of Restitution

This chapter discusses issues of policy and principle in the law of restitution raised by restitutionary claims against public authorities. It explains the grounds of restitution available to recover ... More

This chapter discusses issues of policy and principle in the law of restitution raised by restitutionary claims against public authorities. It explains the grounds of restitution available to recover ultra vires receipts from public authorities. These include mistake, duress, extortion by colour of office, total failure of basis, and absence of basis. It also covers statutory provisions which provide for the recovery of overpaid taxes and duties and application of defences to claims for restitution from public authorities. These include limitation periods, change of position, passing on, settlement, a change in a settled view of the law, and disruption of public finances.Less

A Substantive Distinction

J. W. F. Allison

in A Continental Distinction in the Common Law: A Historical and Comparative Perspective on English Public Law

A distinction between public and private in substantive law is presented as similar to the institutional distinction between private- and public-law courts in its dependence on a satisfactory ... More

A distinction between public and private in substantive law is presented as similar to the institutional distinction between private- and public-law courts in its dependence on a satisfactory separation of powers. This chapter describes the contribution of the Conseil d'Etat's dynamic extension of its judicial role (in determining, inter alia, state liability and proportionality) to the entrenchment of the French institutional and substantive distinctions. It shows, in contrast, that the English separation of powers has not facilitated the entrenchment of an English substantive distinction, which is thus not in convergence with the French. Rather, it shows how it has contributed to continuing administrative immunities, judicial restraint in English public law, and general uncertainty about the judicial role in administrative disputes, evident in the doctrine of ultra vires, unease about justiciability, and related debate about distinguishing public and privatelaw.Less

State

Robert Stevens

in Torts and Rights

State liability for torts has been bedevilled by the mistaken view that the applicable principles differ when compared to those found in relation to private defendants. The unfortunate importation of ... More

State liability for torts has been bedevilled by the mistaken view that the applicable principles differ when compared to those found in relation to private defendants. The unfortunate importation of public law concepts has led to uncertainty. The ‘red herrings’ which have distorted this area are: the policy/operational divide, intra vires, ultra vires, general reliance, policy arguments, and the view that the duty of care can be abandoned in this context. Further, the relationship between private law and the Human Rights Act 1998 has been misunderstood. The impact of the Act is, in many ways, to make the European Convention on Human Rights and Fundamental Freedoms less important. There is one true public law wrong, misfeasance in a public office, of recent origin and limited scope.Less

Beyond ‘Dili’: On the Powers and Practice of International Organizations

Niels Blokker

in State, Sovereignty, and International Governance

This chapter deals in general terms with some important elements involved in cases concerning the powers of international organizations. Section 2 presents examples of cases in which it has been ... More

This chapter deals in general terms with some important elements involved in cases concerning the powers of international organizations. Section 2 presents examples of cases in which it has been questioned whether or not an international organization acted ultra vires. Section 3 makes a distinction between different types of powers of international organizations. Section 4 examines the distinction between the views of Member States and the views of the organization. In the final section, the different elements analysed in general terms in the preceding sections will be used to discuss briefly the question of whether or not the UN Special Rapporteur acted ultra vires when he reported on the killings in East Timor.Less

Attribution in Public International Law

Carlo de Stefano

in Attribution in International Law and Arbitration

Chapter II illustrates the application of attribution rules in public international law, as resulting from the early arbitral practice, the decisions of the Permanent Court of International Justice ... More

Chapter II illustrates the application of attribution rules in public international law, as resulting from the early arbitral practice, the decisions of the Permanent Court of International Justice (PCIJ) and the International Court of Justice (ICJ) and the awards of the Iran–US Claims Tribunal, and eventually codified by ARSIWA. Accordingly, it explains the tests for attribution of conduct of State organs (de jure and de facto) under ARSIWA Article 4, ‘State entities’ under ARSIWA Article 5, and individuals under ARSIWA Article 8. The rule of attribution of acts ultra vires under ARSIWA Article 7 is also analysed, which applies to the conduct of State organs and ‘State entities’, but not of (private) individuals.Less

Public Law Unlawfulness and Liability in Damages

Duncan Fairgrieve

in State Liability in Tort: A Comparative Law Study

This chapter focuses on the theoretical relationship between public law and the notion of illegality and liability in a damages action, discussing whether the unlawfulness of an administrative act is ... More

This chapter focuses on the theoretical relationship between public law and the notion of illegality and liability in a damages action, discussing whether the unlawfulness of an administrative act is a necessary precondition of liability for fault and determining the sufficient consideration of invalidity for administrative fault. According to the French law, illegality is a necessary precondition for administrative liability — the invalidity of an administrative act makes sufficient fault, giving rise to liability. But in English law, the idea has been a topic of debate with regard to the torts of statutory duty and negligence, and other English torts. The role of illegality in damages actions within the English system may expand problems to extension of liability, inhibition of administrative activity, or a correlative retrenchment of the scope of ultra vires, which may cause a clash between the concepts of public and private law, and add further difficulty.Less

Intentional Homelessness

IAN LOVELAND

in Housing Homeless Persons: Administrative Law and the Administrative Process

This chapter focuses on the three councils' implementation of a provision of the Act in respect of which there is widespread agreement that local authorities do suffer ‘particular difficulty’: the ... More

This chapter focuses on the three councils' implementation of a provision of the Act in respect of which there is widespread agreement that local authorities do suffer ‘particular difficulty’: the concept of intentional homelessness. The data presented strengthens the impression that many of Midland's decisions were clearly ultra vires. It also suggests that, while Western's officers were most unlikely to make basic legal mistakes, they might on occasion produce unlawful decisions when faced with unusual situations. While Eastern's implementation of s.60 was less legally ‘correct’ than Western's, in the sense that officers did not refer to case law to justify their conclusions, there was little indication that the HPU systemically made substantively indefensible decisions. In contrast, Midland's more regular and fundamental legal errors produced a substantively more restrictive (and overtly ultra vires) interpretation of intentionality.Less

Human Rights and International Humanitarian Law Breaches Attributable to International Organizations

Carla Ferstman

in International Organizations and the Fight for Accountability: The Remedies and Reparations Gap

The chapter considers how to determine whether a particular internationally wrongful act is attributable to an international organization, or another actor under international law. It considers the ... More

The chapter considers how to determine whether a particular internationally wrongful act is attributable to an international organization, or another actor under international law. It considers the circumstances in which international organizations may breach the human rights and international humanitarian law obligations that they are bound to respect and incur liability in the case of a breach. It also considers when the conduct amounting to a breach is an act of the organization for the purposes of assigning responsibility. It analyses the framework for the attribution of responsibility set out in the Draft Articles on the Responsibility of International Organizations.Less

Foundations of Caribbean Integration

David S Berry

in Caribbean Integration Law

Chapter 2 places Caribbean regional integration in its context, briefly surveying the geographic and economic features of the region. It examines the history of West Indian regional integration, from ... More

Chapter 2 places Caribbean regional integration in its context, briefly surveying the geographic and economic features of the region. It examines the history of West Indian regional integration, from before the Second World War to the present. It highlights the formative impact of the West Indies Federation and of subsequent, unsuccessful, attempts at political integration. It traces the shift toward economic, functional forms of integration, and examines the evolution of the constituent instruments of both CARICOM and the OECS. It offers a brief introduction to the different forms of economic integration, locating both regional organizations in their broader global context. It presents a basic introduction both to the law of treaty interpretation and to some of the rules and principles of international institutional law, including autointerpretation, international legal personality, implied powers, and the doctrine of ultra vires.Less

Community Competence to Include Human Rights Clauses in International Agreements

Lorand Bartels

in Human Rights Conditionality in the EU's International Agreements

The question of whether the Community has the competence to include human rights clauses in its international agreements is provoked by the famous statement of the European Court of Justice in ... More

The question of whether the Community has the competence to include human rights clauses in its international agreements is provoked by the famous statement of the European Court of Justice in Opinion 2/94 that ‘[n]o Treaty provision confers on the Community institutions any general power to enact rules on human rights or to conclude international conventions in this field’. On its face, this would seem to limit the Community's competence to include in its international agreements a clause that is without any question in ‘the field’ of human rights. In examining this question, this chapter first of all takes issue with the argument that no legal basis is required for a human rights clause. It suggests that this argument is wrong, as it is based on both a mischaracterization of human rights clauses and a misunderstanding of the doctrine that every Community act must be supported by a proper legal basis. The chapter then looks to the legal bases that might be available to support human rights clauses, including those that the Community has already used for agreements containing human rights clauses (among which is Article 308 EC, which authorizes the Community to take measures in support of a ‘Community objective’). Finally, it examines two further possibilities: that the Community may in any case have an implied ‘functional’ power to include human rights clauses in its international agreements, and that even if it is otherwise ultra vires, human rights clauses might be legitimately included in the Community's agreements as ‘ancillary clauses’.Less

Conclusion

Alexander Brown

in A Theory of Legitimate Expectations for Public Administration

Section I explains some of the implications of my Responsibility-Based Account, including what courts should or should not recognize as circumstances, ways, or modes of legitimate expectations coming ... More

Section I explains some of the implications of my Responsibility-Based Account, including what courts should or should not recognize as circumstances, ways, or modes of legitimate expectations coming into being, not least when expectations are about or based on ultra vires governmental conduct. It also explains some of the implications of my theory of administrative liability, including for cases in which expectations are about or based on intra vires governmental conduct. And it explains some of the implications of my pluralistic explanation of why the principles of administrative justice hold in terms of how likely it is that the principles will hold across a variety of circumstances. Section II delves more deeply into the special position of public bodies, such as local government councils, that can become both bearers and creators of legitimate expectations. Finally, Section III provides an account of the logical relationship between different parts of my theory.Less

The Authority of the Administration

Janet McLean

in The Foundations and Future of Public Law: Essays in Honour of Paul Craig

The authority claims of the administration have undergone radical change with consequences for the shape and content of administrative law. In the seventeenth century, authority was claimed in ... More

The authority claims of the administration have undergone radical change with consequences for the shape and content of administrative law. In the seventeenth century, authority was claimed in office, as a means to limit the imposition of the King’s will and to secure the independence of officials, especially the judges. In the eighteenth century, virtue, property, and independence became the basis for office, and the common law sought to enhance such authority through notions of public trust. After the nineteenth-century transition to more centralised and bureaucratic hierarchy, democracy became the new source of authority for the administration, reinforced by the ultra vires doctrine. In each era, the authority claims of the administration have been reflected in the frameworks for judicial supervision. In this way the common law has simultaneously constituted and controlled authority. In the present day we are in the process of rethinking whence administrators derive their legitimate authority and the theoretical foundations of judicial review. Beginning with the authority claims of the administration and framing a juridical response which reflects and tests such claims would be a good place to start.Less

The Administrative State and the Fundamentals of Public Law

ACL Davies

in The Foundations and Future of Public Law: Essays in Honour of Paul Craig

This chapter uses recent developments in the UK National Health Service (NHS) as a case study to illustrate the importance of the courts’ role in upholding the principle of legality. The Health and ... More

This chapter uses recent developments in the UK National Health Service (NHS) as a case study to illustrate the importance of the courts’ role in upholding the principle of legality. The Health and Social Care Act 2012 was a controversial piece of legislation which sought to ensure that the day-to-day running of the NHS would be underpinned by a competitive market. Since the Act was passed, this policy has fallen out of favour, and ministers have pursued a new policy of ‘integrated care’, in which different NHS organisations are encouraged to work together rather than to compete. In the Hutchinson and Shepherd cases, the courts have held that it is intra vires the 2012 Act to pursue integrated care, even though it is arguably the exact opposite of a competitive market. This chapter offers a critical analysis of these cases and emphasises the importance of the administrative law principle of legality in upholding democratic government.Less

Administrative Challenges

Scott Burris, Micah L. Berman, Matthew Penn, and, and Tara Ramanathan Holiday

in The New Public Health Law: A Transdisciplinary Approach to Practice and Advocacy

This chapter introduces the basic elements of administrative law and some key related legal doctrines. It covers administrative procedures acts that govern how agencies make or promulgate regulations ... More

This chapter introduces the basic elements of administrative law and some key related legal doctrines. It covers administrative procedures acts that govern how agencies make or promulgate regulations and the rights of the public to have input. It then addresses the law governing legal challenges to the validity of the rules that agencies succeed in issuing, such as the ultra vires doctrine, and how agencies defend their decisions through legal doctrines such as Chevron deference. Finally, the chapter discusses how people establish standing to challenge agency actions, both through administrative channels and via the writ of habeas corpus.Less