- Published in print:
- 2007
- Published Online:
- March 2013
- ISBN:
- 9780226306933
- eISBN:
- 9780226306988
- Item type:
- chapter
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226306988.003.0005
- Subject:
- Law, Company and Commercial Law
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 ...
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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
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.”
A C L Davies
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199287390
- eISBN:
- 9780191713484
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199287390.003.0004
- Subject:
- Law, Constitutional and Administrative Law
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 ...
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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
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.
T. R. S. Allan
- Published in print:
- 2013
- Published Online:
- September 2013
- ISBN:
- 9780199685066
- eISBN:
- 9780191765353
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199685066.003.0006
- Subject:
- Law, Constitutional and Administrative Law, Philosophy of 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 ...
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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
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.
Antonios Tzanakopoulos
- Published in print:
- 2011
- Published Online:
- May 2011
- ISBN:
- 9780199600762
- eISBN:
- 9780191725210
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199600762.003.0002
- Subject:
- Law, Public International Law
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). ...
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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
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.
Ian Leigh
- Published in print:
- 2000
- Published Online:
- March 2012
- ISBN:
- 9780198256984
- eISBN:
- 9780191681714
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198256984.003.0002
- Subject:
- Law, Constitutional and Administrative Law
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 ...
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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
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.
Graham Virgo
- Published in print:
- 2015
- Published Online:
- September 2015
- ISBN:
- 9780198726388
- eISBN:
- 9780191793271
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198726388.003.0015
- Subject:
- Law, Law of Obligations, Company and Commercial Law
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 ...
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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
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.
J. W. F. Allison
- Published in print:
- 2000
- Published Online:
- January 2010
- ISBN:
- 9780198298656
- eISBN:
- 9780191710735
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198298656.003.0008
- Subject:
- Law, Comparative Law, Legal History
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 ...
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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
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.
Robert Stevens
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199211609
- eISBN:
- 9780191705946
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199211609.003.0010
- Subject:
- Law, Law of Obligations
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 ...
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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
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.
Niels Blokker
- Published in print:
- 2002
- Published Online:
- March 2012
- ISBN:
- 9780199245383
- eISBN:
- 9780191697456
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199245383.003.0013
- Subject:
- Law, Public International Law
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 ...
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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
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.
Carlo de Stefano
- Published in print:
- 2020
- Published Online:
- March 2020
- ISBN:
- 9780198844648
- eISBN:
- 9780191880179
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198844648.003.0003
- Subject:
- Law, Public International Law
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 ...
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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
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.
Lorand Bartels
- Published in print:
- 2005
- Published Online:
- March 2012
- ISBN:
- 9780199277193
- eISBN:
- 9780191699931
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199277193.001.0001
- Subject:
- Law, Public International Law
Since the early 1990s, the European Union has included human rights conditionality clauses in its association agreements and other international trade and cooperation agreements. The purpose of these ...
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Since the early 1990s, the European Union has included human rights conditionality clauses in its association agreements and other international trade and cooperation agreements. The purpose of these clauses is to entitle a party to take appropriate measures, including suspension of the agreement, in the event that the other party violates human rights or democratic principles. This book provides an account of the evolution of these clauses, their scope, and their operation, and analyses the EU's responsibility, under international law, to implement these clauses domestically. Based on this examination, it explores the extent to which the EU has the legislative competence to include such clauses in its international agreements, and concludes by considering the implications of ultra vires agreements in EU law. The study offers theoretical insights into aspects of international law as well as EU constitutional and external-relations law. Its practical conclusions have major implications not only for the application of human rights clauses, but also for the EU's international treaty practice more generally.Less
Since the early 1990s, the European Union has included human rights conditionality clauses in its association agreements and other international trade and cooperation agreements. The purpose of these clauses is to entitle a party to take appropriate measures, including suspension of the agreement, in the event that the other party violates human rights or democratic principles. This book provides an account of the evolution of these clauses, their scope, and their operation, and analyses the EU's responsibility, under international law, to implement these clauses domestically. Based on this examination, it explores the extent to which the EU has the legislative competence to include such clauses in its international agreements, and concludes by considering the implications of ultra vires agreements in EU law. The study offers theoretical insights into aspects of international law as well as EU constitutional and external-relations law. Its practical conclusions have major implications not only for the application of human rights clauses, but also for the EU's international treaty practice more generally.
IAN LOVELAND
- Published in print:
- 1995
- Published Online:
- March 2012
- ISBN:
- 9780198258766
- eISBN:
- 9780191681868
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198258766.003.0008
- Subject:
- Law, Constitutional and Administrative Law
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 ...
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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
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.
Duncan Fairgrieve
- Published in print:
- 2003
- Published Online:
- March 2012
- ISBN:
- 9780199258055
- eISBN:
- 9780191698507
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199258055.003.0003
- Subject:
- Law, Law of Obligations
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 ...
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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
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.
Carla Ferstman
- Published in print:
- 2017
- Published Online:
- September 2017
- ISBN:
- 9780198808442
- eISBN:
- 9780191846144
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198808442.003.0003
- Subject:
- Law, Public International Law
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 ...
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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
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.
Eva Micheler
- Published in print:
- 2021
- Published Online:
- December 2021
- ISBN:
- 9780198858874
- eISBN:
- 9780191890987
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198858874.003.0003
- Subject:
- Law, Company and Commercial Law
This chapter examines the ultra vires doctrine, under which the capacity of companies used to be limited by the objects stated in their memorandum. This doctrine could be justified through a ...
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This chapter examines the ultra vires doctrine, under which the capacity of companies used to be limited by the objects stated in their memorandum. This doctrine could be justified through a concession style argument as well as through contractual analysis. The doctrine, however, proved unsuitable for the operation of commercial organizations. These organizations need flexibility, and the law adapted to the requirements of organizational action and now mandates that all non-charitable companies have unlimited capacity. The chapter then analyses the recent recommendation for companies to set themselves a purpose discouraging them form making the generation of financial return their primary objective. It argues that the programmatic statement of a corporate purpose is likely to bring about only cosmetic changes. If there is a desire for wider aims to be integrated into corporate decisions these would have to be institutionalized. This can be achieved, for example, by identifying a board member to represent these interests on the board.Less
This chapter examines the ultra vires doctrine, under which the capacity of companies used to be limited by the objects stated in their memorandum. This doctrine could be justified through a concession style argument as well as through contractual analysis. The doctrine, however, proved unsuitable for the operation of commercial organizations. These organizations need flexibility, and the law adapted to the requirements of organizational action and now mandates that all non-charitable companies have unlimited capacity. The chapter then analyses the recent recommendation for companies to set themselves a purpose discouraging them form making the generation of financial return their primary objective. It argues that the programmatic statement of a corporate purpose is likely to bring about only cosmetic changes. If there is a desire for wider aims to be integrated into corporate decisions these would have to be institutionalized. This can be achieved, for example, by identifying a board member to represent these interests on the board.
Lorenzo Gasbarri
- Published in print:
- 2021
- Published Online:
- May 2021
- ISBN:
- 9780192895790
- eISBN:
- 9780191916335
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780192895790.003.0010
- Subject:
- Law, Public International Law
The legal validity of the law produced by international organizations is a vexed issue. This chapter explores how it is affected by the absence of a comprehensive concept of an international ...
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The legal validity of the law produced by international organizations is a vexed issue. This chapter explores how it is affected by the absence of a comprehensive concept of an international organization. The functionalist perspective privileges a notion of ultra vires which refers to acts or actions of an international organization which overstep its attributed competences. Conversely, the constitutional perspective adopts a dynamic interpretation under which it is more difficult to determine the invalidity of a rule. First, the chapter describes how the International Court of Justice adopted an either/or approach based on the two conceptualizations. Afterwards, it applies the dual legal nature explaining how the rules have two parameters of legality, deriving from the international and the internal legal system. This finding is applied to the invalidity of a treaty caused by the violation of a rule and to the respect for customary law.Less
The legal validity of the law produced by international organizations is a vexed issue. This chapter explores how it is affected by the absence of a comprehensive concept of an international organization. The functionalist perspective privileges a notion of ultra vires which refers to acts or actions of an international organization which overstep its attributed competences. Conversely, the constitutional perspective adopts a dynamic interpretation under which it is more difficult to determine the invalidity of a rule. First, the chapter describes how the International Court of Justice adopted an either/or approach based on the two conceptualizations. Afterwards, it applies the dual legal nature explaining how the rules have two parameters of legality, deriving from the international and the internal legal system. This finding is applied to the invalidity of a treaty caused by the violation of a rule and to the respect for customary law.
Paul Daly
- Published in print:
- 2021
- Published Online:
- September 2021
- ISBN:
- 9780192896919
- eISBN:
- 9780191919206
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780192896919.003.0008
- Subject:
- Law, Constitutional and Administrative Law
Chapters 2 to 7 laid out the argument that contemporary administrative law can be understood in terms of administrative law values. This chapter is less concerned with interpreting the decided cases ...
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Chapters 2 to 7 laid out the argument that contemporary administrative law can be understood in terms of administrative law values. This chapter is less concerned with interpreting the decided cases than with prescribing how judges ought to deal with potential conflict between the values. The chapter’s extended case study of legitimate expectation allows the demonstration of how the values might guide the resolution of difficult administrative law questions. A pluralist account of legitimate expectation is set out, building on the values present in the decided cases. The chapter begins by explaining how the values of individual self-realisation, good administration, electoral legitimacy and decisional autonomy manifest themselves in the decided cases. It then proceeds to outline how the values should be reconciled so as to guide the resolution of difficult questions, focusing on the contentious areas of knowledge and reliance, substantive legitimate expectations and enforcement of ultra vires legitimate expectations.Less
Chapters 2 to 7 laid out the argument that contemporary administrative law can be understood in terms of administrative law values. This chapter is less concerned with interpreting the decided cases than with prescribing how judges ought to deal with potential conflict between the values. The chapter’s extended case study of legitimate expectation allows the demonstration of how the values might guide the resolution of difficult administrative law questions. A pluralist account of legitimate expectation is set out, building on the values present in the decided cases. The chapter begins by explaining how the values of individual self-realisation, good administration, electoral legitimacy and decisional autonomy manifest themselves in the decided cases. It then proceeds to outline how the values should be reconciled so as to guide the resolution of difficult questions, focusing on the contentious areas of knowledge and reliance, substantive legitimate expectations and enforcement of ultra vires legitimate expectations.
David S Berry
- Published in print:
- 2014
- Published Online:
- April 2014
- ISBN:
- 9780199670079
- eISBN:
- 9780191749452
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199670079.003.0002
- Subject:
- Law, Public International Law, Comparative 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 ...
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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
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.
Lorand Bartels
- Published in print:
- 2005
- Published Online:
- March 2012
- ISBN:
- 9780199277193
- eISBN:
- 9780191699931
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199277193.003.0008
- Subject:
- Law, Public International Law
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 ...
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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
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’.
Alexander Brown
- Published in print:
- 2017
- Published Online:
- January 2018
- ISBN:
- 9780198812753
- eISBN:
- 9780191851926
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198812753.003.0008
- Subject:
- Law, Constitutional and Administrative Law
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 ...
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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
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.