Disputes relating to cryptoassets have proliferated in recent years, along with the rise of the cryptoasset market. Some of these can be resolved using traditional principles of contract, tort or trust law, but proprietary issues raise particular conundrums. While cryptoassets have generally been accepted to be property, that is merely the starting point. To properly resolve proprietary disputes, it is necessary to provide a reasoned and robust explanation for why particular rules of title originally developed in the context of tangible property should apply. In turn, two foundational questions must be answered. First, what is the subject-matter of the property right in cryptoassets? And secondly, what is the proprietary effect of a blockchain transaction? These issues have received relatively little attention in the literature, which has focused on whether cryptoassets are property at all, and existing contributions (including the Law Commission's recent Consultation Paper on Digital Assets) which do engage these issues are far from reaching consensus. This paper critically examines those views and puts forward its own reasoned approach for the application of traditional rules of title to cryptoassets.

A significant issue in combatting the Covid-19 pandemic is the need to enhance developing states’ access to Covid-19 vaccines. The present paper considers the request for a temporary waiver of intellectual property rights in relation to Covid-19 technologies and treatments submitted to the World Trade Organization and analyses a key argument against the proposed waiver: that the compulsory licensing provisions set out in the TRIPS Agreement are sufficiently flexible to help states get access to vaccines. The compulsory licensing flexibilities set out in TRIPS, including the amendment to TRIPS in Article 31bis, are evaluated, to explore whether compulsory licensing could be an effective tool in helping developing states to access Covid-19 vaccines. Key issues are explored from a human rights perspective to examine whether a rights-based approach to the compulsory licensing provisions could offer further insights as to how the provisions could be more workable, to enhance access to medicines and vaccines for developing states.

As the UK left the European Union, a new body of UK law, labelled ‘retained EU law’, was introduced to save and convert certain parts of EU law into UK statutes. This paper explores the impact of Brexit on statutory interpretation in the UK in the context of VAT. In particular, it looks at whether, and the manner in which, UK courts and the Court of Justice of the European Union (CJEU) will move in different directions when interpreting what is essentially the same law. The paper predicts the post-Brexit evolution of statutory interpretation in UK courts based on an empirical study of cases concerning VAT referred by UK courts to the CJEU between 1973 and 2020, augmented by a doctrinal analysis of selected cases. The methodology is built on the premise that past case decisions may provide an indication of the nature of possible future divergence. A case study of VAT may offer wider implications as to departure from the CJEU jurisprudence in other legal areas in the coming years.

This paper connects two trends in contemporary legal scholarship that do not often intersect, namely commentary on the increasingly diverse nature of family law advice and support services, and calls for a refresh of the regulatory environment in which legal services in general are provided. Focusing on the law and landscape in England and Wales, we argue that regulatory challenges are particularly acute in the field of family law, where the range and reach of services provided by non-lawyers is extraordinary. We illustrate how particular aspects of debates over regulating and diversifying legal services apply to the family law context, noting that such concerns as there are have not always been well targeted. Finally, we identify a sub-set of innovative ‘extra-legal’ services that set private family law even further apart from other sub-fields of law when it comes to regulatory and professional challenge. These services clearly sit inside the landscape of family dispute resolution but equally clearly fall outside the boundaries of what is usually considered ‘legal’. This, we suggest, highlights the need for a concerted effort to define the contours of family law and family legal services so that a holistic approach might be taken to understanding and managing the standards and effectiveness of different service and support types.

The principle of self-determination has gained significant judicial support over the last three decades, and the choice to procreate using assisted reproductive technology is a clear example of our right to choose a treatment that enhances our personal lives. The Human Fertilisation and Embryology Act 1990 (as amended in 2008) stipulates that each party must give written, informed consent to ensure that our reproductive materials are used within strict parameters. However, the growing number of posthumous conception cases in several jurisdictions has raised concerns, particularly in situations where gametes are extracted from incapacitous patients without their consent, leading to posthumous parenthood. The landmark case of Y v A Healthcare NHS Trust [2018] EWCOP 18 caused significant concern when it authorised the retrieval, storage and use of sperm from a suspected brain stem dead man for procreative purposes under the Mental Capacity Act 2005. It has never been known to be in the ‘best interests’ of a patient who lacks capacity to procreate in English law, and the consequences of this decision could be highly significant, raising questions about the exploitation of incapacitous patients and the misuse of genetic material. The decision has since been confirmed as the correct approach by the Court of Protection in Re X (Catastrophic Injury: Collection and Storage of Sperm) [2022] EWCOP 48, and a public consultation has now been opened by the Human Fertilisation and Embryology Authority. This paper examines the rigorous consent regime of the 1990 Act and the ethical complexities of retrieving gametes from incapacitous patients for procreative purposes. It will be determined that the 1990 Act's preference for a rigorous consent regime for public policy reasons is appropriate, and any alternative forms of consent could open a slippery slope to the unethical use of vulnerable individuals for their reproductive materials.

In his 1935 judgment in Woolmington v DPP, Viscount Sankey declared the prosecution's burden of proving the accused's guilt was a ‘golden thread’, running ‘throughout the whole web of English criminal law’. This paper explores what Woolmington can tell us about the appeals process – and about the criminal law itself – less than 30 years after the first automatic right to appeal was created in English criminal law. It argues that the decision helps us understand the political pressures that could help to form – and make possible – legal decisions during this period. And it finds that the Woolmington decision itself – both in the text of the decision and in its immediate reception – was more universal than it was fundamental. Woolmington, I argue, has always been more about the high-level principles of English criminal law than about securing any kind of minimal procedural rights for a defendant.

This paper examines in three parts how ADR is being embedded into the English civil justice system. Section 1 discusses how courts encourage settlements, and it argues that while mounting costs in litigation lead to negotiated settlements, the participation in ADR primarily mainly occurs when parties are referred to it in a timely manner. Section 2 investigates the time when disputants are referred to ADR, and it proposes a taxonomy formed by three stages in the dispute life cycle: (1) before parties contemplate litigation; (2) at the pre-action phase as a pre-condition to issue a claim; and (3) after a defence is entered. Section 3 notes that the court digitalisation program is increasing ADR referrals across the above three stages, and it argues that these referrals will be more effective when they are timely and coupled with suitable incentives and sanctions, but the latter must take into consideration the parties’ power asymmetries.

This paper evaluates the wide discretion afforded to planning decision-makers in England. It does so in respect of a key but often overlooked question in the transition to renewables: whether developers/owners of onshore wind projects should be required to provide a ‘bond’ to ensure decommissioning and site restoration (DSR) occurs. Bonds are financial instruments that evidence ability to fund DSR. They help avoid legacy issues (eg project abandonment) but carry a long-term cost burden for developers/owners. A study of 275 projects elicits three issues. First, a lack of government guidance on bonding, vague ‘threshold’ terms in law and policy and failure of planning decision-makers to consider how others had decided the question result in a lack of markers to inform discretion, with bonds being rare (present in only 15.6% of projects) and their stringency inconsistent. Secondly, this lack of markers legitimises risky, cost-saving practices prohibited in offshore wind, where government guidance informs bonding decisions. Thirdly, reasons for decisions are weak or absent, inhibiting achievement of the justifications for their provision in an administrative context (eg disciplining decision-making). Whilst discretion enhanced capacity to generate electricity from wind through enabling a reduction of market entry costs, assisting movement towards renewable energy targets, it resulted in abandonment risk being ignored. This mirrors strategies adopted elsewhere in England's energy sector, such as coal and oil and gas, where a ‘light touch’ approach to bonding has, traditionally, been deployed to avoid hindering project development.

Associate Hospital Managers (AHMs) are members of the local community with a power under section 23 of the Mental Health Act 1983 to discharge people from compulsory mental health care against medical advice. They provide scrutiny of professional decisions and, in so doing, protect patient liberty by providing review of compulsory care. Abolition of the AHMs has been contemplated on numerous occasions, most recently by the Independent Review of the Mental Health Act 1983 (December 2018), the White Paper on ‘Reforming the Mental Health Act’ (January 2021) and the Government's response (July 2021). Through an historical and contemporary consideration of the section 23 power spanning 1808–2022, this paper argues that removal of the AHMs would be detrimental to the legitimacy of the 1983 Act. This is because the abolition of the AHMs would undermine the principles of local, democratic, community oversight entailed by section 23, and found nowhere else in the Act. The Draft Mental Health Bill (June 2022) does not address these concerns.

In a negligence action against a defendant suffering from a mental disorder or an incapacity, a key but neglected question is what we mean by involuntariness. Although involuntariness is an accepted response, its relationship to mental or physical incapacity is poorly understood. The existing authorities offer only basic instruction about what is meant by involuntariness. Moreover, there is a suspicion that involuntariness undermines the objectivity of the standard of care. However, in this paper, it is argued that involuntariness can be better defined and a clearer understanding can be gained of how responsibility operates within tort law. By relating the case law and commentary on involuntariness to a choice theory of responsibility and arguing that this operates at a foundational level which is analytically prior to questions of breach, this paper tries to illuminate how tort law – like other areas of law – makes fundamental assumptions about the capacity of individuals to whom duties are expected to apply. None of this will necessarily increase the volume of claims or unsettle well-worn authorities but it does ensure both consistency and fairness and argues for a deeper appreciation of agency within how tort law characterises the applicability of duties.

The paper surveys the intellectual property (IP) laws of seven Southern African Development Community countries to better understand the nature, scope, and depth of their patent laws with particular focus on their utilisation of TRIPS flexibilities to facilitate pharmaceutical access. The selected countries – Botswana, Malawi, Namibia, South Africa, Tanzania, Zambia, and Zimbabwe – represent a mix of both major and modest economies. While the current literature contains widespread assertions on the impact and effect of TRIPS on access to medicines in these countries and less-developed countries in general, this paper finds that the countries lack explicit and workable provisions implementing key TRIPS flexibilities. Hence, available TRIPS flexibilities have not been well utilised and it is often the complicated and unworkable domestic framework – rather than TRIPS – which becomes the stumbling block to pharmaceutical access. Another major finding is that patents may not be a major impediment in the region given that few patents and even fewer pharmaceutical patents are filed. The paper argues that since the surveyed countries are mainly net IP importers with similar developmental contexts and aspirations, the best approach would be to fully take advantage of existing flexibilities and more aggressively leverage policy space to engender access to cheaper medicines.

The challenge that delegated legislation poses to parliamentary sovereignty and associated supremacy in the UK is purportedly addressed through what we term the ‘constitutional bargain of delegated law-making’. This has three elements: the proper limitation of delegation by Parliament through well-designed parent legislation; the exercise of self-restraint by the Executive in the use of delegated authority; and the enablement of meaningful scrutiny by Parliament. As a paradigm situation in which delegated law-making might be said to be necessary, the first year of the Covid-19 pandemic is an apposite context in which to assess the robustness of that bargain. Our analysis uses a sample of Westminster-generated pandemic-related secondary instruments as a peephole into the broader dynamics of this constitutional bargain and further reveals its significant frailties; frailties that are exposed, but not created, by the pandemic.

This paper sets out the true ambit of section 126 of the Consumer Credit Act 1974, noting that it requires virtually all residential mortgage agreements to be enforced by court order. Despite this, numerous commentaries on the English law of mortgage omit reference to section 126. The implications of our findings are profound. Not least, many accounts of the law of mortgage will require substantial revision, including recognition of the fact that cases such as Ropaigealach v Barclays Bank plc and Horsham Properties Group Ltd v Clark were reversed as long ago as 2008. More significant is the need to ensure that accurate knowledge of section 126 is conveyed to those who advise mortgagors at risk of possession. This is particularly the case given the ‘cost of living crisis’ and the backlog of possession claims arising out of the Covid-19 pandemic. Any mortgagees tempted to expedite recovery of mortgaged property by enforcing the mortgage extra-judicially should be directed to section 126 and the requirement it imposes to obtain a court order.

To address the issue of persistent unemployment, the UK Government implemented a conditional welfare scheme. Prompted by Mantouvalou's argument that the scheme forces people into exploitative work, this paper addresses the ‘pressing’ question of whether the scheme is compatible with the prohibition on ‘forced or compulsory labour’ under Article 4(2) of the European Convention on Human Rights. It is argued that, whether the scheme imposes the menace of a penalty, is involuntary, seriously exploitative or a normal civic obligation, ultimately depends on different understandings of the demands of distributive justice. Given the politically contested nature of those demands, Article 4(2) is a poor weapon to use when challenging the UK's conditional welfare scheme.

The demand for family mediation to adapt and change has risen sharply in the contemporary English and Welsh family justice system. This paper focuses on a crucial, yet overlooked, barrier to reform: the tensions felt within the family mediator profession. It first provides an important overview of the introduction of family mediation in the late twentieth century, highlighting the distinction between the traditional therapeutic mediator and the subsequent lawyer mediator. Recent anecdotal evidence suggests that friction exists amongst the two mediator sub-groups, similar to earlier tensions felt between lawyers and mediators. The remainder of this paper is based on an empirical study, comprising 17 interviews with family mediators, which confirms these tensions, as well as a lack of national identity across the profession. However, the data also reveal mediators’ desire for collaboration and community within the profession. The paper is hopeful that regulatory reform can help mediators to ‘mediate themselves’ going forward, and questions whether this transition is supported by a new hybrid mediator.

Death by neurological criteria (DNC) has remained controversial since its introduction over 50 years ago. Objections to the diagnosis of DNC have been coming before the courts in various jurisdictions, including at least seven recent challenges before the UK courts. In responding to these challenges, the UK courts have expressed no doubts as to the status of DNC and have affirmed that following a diagnosis of DNC, the matter of best interests is no longer relevant. Yet, the courts have also, tacitly, acknowledged that DNC is not quite the same as cardio-pulmonary death.

This paper begins by setting out the origins of DNC as a medico-legal construction, and its ongoing controversies. It then analyses the treatment of DNC, including authorisation of DNC testing, by the UK courts. It shows that the courts have been operating a form of ad hoc reasonable accommodation of different views of DNC but have done so without normative engagement. The paper argues that the courts should recognise that DNC disputes are not simply concerned with whether, as a matter of fact, DNC has been correctly diagnosed, but also raise profound questions about rights and interests, both of families and of the DNC dead.

In this short piece we focus on two of the main changes brought in by the recent Nationality and Borders Act 2022 with a focus on sexually diverse claimants: inadmissibility and the increased standard of proof. The recent changes have a negative impact on all asylum seekers but we highlight that they have a particularly adverse impact on sexually diverse claimants because their diverse backgrounds have not been appropriately considered. The problematic provisions on inadmissibility on the basis of mode of entry and removal to a ‘third safe country’ pose particular risks for sexual minorities. Additionally, the increased standard of proof exaggerates issues already faced by sexually diverse claimants in relation to objective evidence gathering and decision-makers using guidance riddled with stereotypical understandings about sexual minorities.

Financial globalisation has given issuers more freedom to carry out jurisdiction shopping. As a policy response, a growing number of stock markets have introduced the dual-class share structure to enhance global competitiveness. However, does the dual-class share structure help stock markets attract issuers? It is a question rarely examined empirically in existing scholarly work. This paper explores the practices of three jurisdictions with global financial centres, ie the US, China and Hong Kong, to narrow the research gap. Based on hand-collected data, it explains the infrequent listings with the dual-class share structure in China and Hong Kong in the post-reform era in two ways: low demand due to the use of substitutes; and limited allowance caused by the harsh ex ante regulation, and is the first comparative quantitative study in this field. Drawing on the empirical lessons, this paper recommends that China relax its ex ante regulation and suggests the wider community consider the necessity of introducing the dual-class share structure and the balance they aim to achieve between investor protection and market openness.