On December 1, 2023, the International Court of Justice (ICJ) delivered a unanimous order on provisional measures in Arbitral Award of 3 October 1899 (Guyana v. Venezuela) (Provisional Measures Order). The ICJ indicated two provisional measures. It ordered first that, pending a final decision in the case, Venezuela shall refrain from taking any action that would modify the situation that currently prevails in the relevant disputed territory (the current situation being that Guyana administers and exercises control over the territory) and, second, that both states shall refrain from any action that might aggravate or extend the dispute before the ICJ.

Shareholders are not allowed to bring actions for damages due to a fall in share value or loss of dividend, which are “reflective” of their company’s loss. Later, this principle also found its application to “reflective” losses of employees and creditors. The Supreme Court, however, in Marex Financial v Sevilleja, unanimously held that the principle would apply only to shareholders and not to creditors. The article argues that, while the majority opinion in the Marex decision is reasonably balanced, the minority opinion went a step further by even doubting the very existence of the no reflective loss principle without properly appreciating what shareholding entails. If the minority’s position becomes the law, it will jeopardise companies’ existence as separate legal entities with the capacity to decide with respect to their assets. Further, if the protection of the principle is removed, companies’ counterparties will have to worry constantly about facing numerous direct shareholders’ actions, whether they settle the dispute with the company or not. As a result, if the minority view becomes the law, it can potentially make the company a less dependable commercial partner.

A taskforce, appointed by HM Treasury, has recently proposed legislation to eliminate certificated (paper) shares and to require the investors currently holding paper shares to hold them indirectly through nominees. It has also suggested that disclosure combined with a common messaging protocol will enable the market to improve the ability of indirect shareholders to exercise their rights. In this paper we make a case against legislation eliminating paper certificates. We argue that the industry does not need the Government to remove paper certificates. If they want paper certificates to disappear, they should develop a model for holding uncertificated shares directly that is affordable for retail investors. The Government should nevertheless intervene. It should encourage the Competition and Markets Authority to investigate the price structure of accounts for holding uncertificated shares directly with CREST, which operates as a monopoly provider for such accounts in the UK. We further explain that the current system for holding shares indirectly disenfranchises investors and argue that this not only affects investors but also deprives issuers of oversight of their governance. We use empirical evidence to explain that disclosure combined with a common messaging protocol is unlikely to cause the market to develop a system that better enfranchises indirect shareholders. Consequently, we propose legislation to give indirect investors better access to shareholder rights.

The European Legal order, created by the European Court of Justice [ECJ], is an astonishingly effective treaty enforcement system. Previous explanations of its ‘transnational’ or ‘constitutional’ development have focused on the politics of judicial networks, and the wider political and economic context of postwar European democracy. Judicial biography has been almost entirely overlooked, even in the case of Robert Lecourt, widely acknowledged as the leading judge in the Court’s revolutionary period. Unknown to research on the ECJ, however, Lecourt had already spearheaded the adoption of the famous Article 49-3 of France’s 1958 Constitution. This paper demonstrates that the constitutional doctrines of European law and Article 49-3 were in fact premised on a similar ideology, that the pursuit of ‘effectiveness’ may require unprecedented restrictions on the traditional law-making role of national parliaments. Those were the constitutional values of the judge that, more than any other, built the foundations of the European legal order.

In recent years, a growing number of countries have courted controversy by regulating activities outside their borders. They have used extraterritorial lawmaking to cultivate competitive global markets, strengthen or weaken data privacy, combat foreign terrorism and military aggression, promote human rights abroad, and suppress political dissent at home. This Article explores whether extraterritorial lawmaking can be reconciled with the right to self-determination under international law. I argue that the right to self-determination entitles each national polity to determine the laws and institutions by which it is governed within its territory. Extraterritorial lawmaking violates the right to self-determination when it subjects peoples to legal norms they have not freely endorsed. This insight calls for a paradigm shift in how international lawyers evaluate extraterritoriality, with broad ramifications for legal theory and practice.

A future multilateral investment court (MIC) or multilateral appellate mechanism (MAM) will operate on a plurilateral basis, among States that become parties to the tribunal's constitutive instrument and grant it jurisdiction over disputes under their investment treaties. The creation of a MIC or MAM would involve a significant strengthening and centralization of dispute settlement institutions in the investment treaty regime, which is already overly dependent on law-development by adjudicators, reflected in well-established concerns about loss of State control. Thus, a key challenge in designing a MIC or MAM is to incorporate appropriate control mechanisms that will enable State input, without unduly undermining a MIC or MAM's independence. This article analyses control mechanisms in a MIC or MAM, considering a wide range of questions of institutional design. It highlights two fundamental tensions. One is the tension between independence and accountability. The other tension is between procedural multilateralism and substantive bilateralism. While the procedural law in a MIC or MAM will have been multilateralized, the substantive law the tribunal will interpret and apply will remain contained in mostly bilateral investment treaties, controlled by the parties to those agreements. This article addresses the challenges of designing a multilateral tribunal for a regime that lacks multilateral substantive law and contributes to wider debates over striking an appropriate balance between international judicial independence and Member State control.

The employment of cutting-edge technology in the European Union's external border management is transforming the way that States acquire control over seaborne migrants and deconstructing traditional conceptions of border and territory. This article sheds light on a new generation of human rights violations on the high seas, where people's rights become contingent on their geographical location which is increasingly traceable by monitoring bodies. Amidst the burgeoning phenomena of abandonment at sea and contemporary forms of migrant push-backs, this article contends that human rights jurisdiction ought to be reconceptualized in functional terms to capture new modalities of State power, that if and when exercised, can amount to effective control, triggering a State's human rights obligations.

On October 7, 2023, Palestinian armed groups, chiefly Hamas's armed wing, breached the fence around the Gaza strip and launched attacks on Israeli territory. Over several hours, Palestinian fighters killed 1,269 people, mostly civilians, engaged in sexual violence and torture, and took 253 hostages. The same day, Israel's Prime Minister Benjamin Netanyahu declared, “Israel is at war,” and the Israel Defense Forces (IDF) launched air strikes and later a ground invasion of Gaza. In the eleven months since, Palestinian groups have continued to hold, mistreat, and kill hostages and launched rockets into Israel's population centers. Meanwhile, the IDF has killed an estimated forty-one thousand people in Gaza, mostly civilians, engaged in sexual violence and torture of Palestinian detainees, damaged or destroyed most of the food, water, and medical infrastructure, and restricted humanitarian access, with dire consequences. Civilian casualty experts argue the death toll (which excludes the likely greater number killed “indirectly” through disease and deprivation) far exceeds what we have come to expect from contemporary military campaigns. Both sides have committed violations of International Humanitarian Law (IHL), too many to list individually.

Litigation was on the rise across late-medieval Europe, and historians have long argued that the result was widespread law-mindedness. Seeking a more individual perspective on these trends, this article looks outside of the formal legal records that have been the cornerstone of social and legal histories. It assesses two first-person narratives which describe life-long efforts to resolve disputes at law, written by ageing members of the rural gentry in late-fifteenth-century England. The article first outlines the stories of disputing told in these manuscripts, with attention to their structures, tropes, and alignment with contemporary discourses about justice. It then places them in the contexts of the lives and archives that they were designed to interpret. What becomes apparent is that these writers and others of similar status were deeply invested in their disputes, enough to bequeath them to future generations. They crafted stories which emphasised the continuity of legal claims through changeable social and judicial conflicts, even if it meant omitting prior successes at law. These manuscripts therefore remind us that litigation, however ubiquitous it became, was not always taken lightly. They also open the door to an examination of reckonings with law undertaken at home rather than in the courtroom.

Few studies have investigated historical pandemics from a public health perspective. This paper offers new perspectives on how legislation was implemented in Norway during the 1918–1920 Influenza pandemic. We argue that despite good intentions, individual interpretations, different knowledge and level of decision-making played an important role in the use of the legislation during this Influenza pandemic. Following the 1918–1920 Influenza pandemic there were significant advancements in public health and the establishment of public health laws in Norway. Given its severity, it was expected an active involvement of health authorities at all levels in decision-making to fight the outbreak through the enforcement of health laws and regulations. This paper explores the implementation of health legislation during this pandemic, offering valuable insights from public health and legislative perspectives. Historical sources reveal a wide array of societal challenges and various levels of medical expertise among health boards across the country. The effectiveness of existing legislation depended heavily on doctors’ knowledge and the abilities of health boards. The article shows that coordinated and well established non-pharmaceutical interventions may be necessary to effectively shield the healthy from the sick during a pandemic produced by a novel pathogen.

The 2023 Texas federal district court decision Braidwood Management, Inc. vs. Becerra enjoined the enforcement of the Affordable Care Act’s preventive care mandate, which requires “first-dollar” insurance coverage for a range of preventive measures, including pre-exposure prophylaxis (PrEP), an HIV prophylactic drug. Most scholars have analyzed the case with respect to the conflict between public health goals and the Religious Freedom Restoration Act (RFRA). This Article suggests another reading of the Braidwood decision in light of a broader socio-legal phenomenon I call preventive health stigma. Stereotypes attach to the underlying medical condition that a given measure is aimed at preventing, or to the actual preventive measure resulting in stigmatization. Preventive health stigma penetrated the Braidwood decision through the case’s focus on PrEP users’ signaled prurient behavior instead of the drug’s proven health benefits. After offering a novel reading of the Braidwood decision, this Article also shows how preventive health stigma surfaces in the legal treatment of other preventive measures, such as abortion pills, masking, and vaccines. Understanding how stigma attaches to preventive medicine constitutes an important step in understanding how law and prejudice can undermine health reform.

Welcome, everyone. I am Greg Shaffer, president of the Society, and it is my huge pleasure to introduce the Brower Lecture. Of course, this is thanks to our good friend, Judge Charles Brower and I am thrilled that we are able to offer the offer this opportunity every year to have such great lectures.