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miami: arbitration and exchange programs (leipzig & zurich) January 26, 2020

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Last week at the University of Miami School of Law I enjoyed an extremely elegant lecture by Gabrielle Kaufmann-Kohler (the Carolyn Lamm/White & Case Lecture) (in the White & Case LLM program George Bermann and Albert Jan van den Berg have taught short courses so far). I also spent some time in fascinating sessions of two exchange programs we run with the University of Leipzig  and the University of Zurich.  

governor of the bank of england December 19, 2019

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News reports suggest it will be Andrew Bailey.   Mark Carney has been very visible as a participant in international discussions relating to issues of climate change and financial stability.  It will be interesting to see whether the new governor will focus on these important transnational issues or on more domestic issues. 

cryptoassets are property and smart contracts can be valid contracts in english law November 18, 2019

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The  UK Jurisdiction Taskforce has published a Legal Statement on the Status of Cryptoassets and Smart Contracts which concludes that in English law cryptoassets are property,  and that smart contracts can be valid contracts. Introducing the document, Sir Geoffrey Vos said that the Statement should dissipate legal uncertainty and that he hoped that it would “be hugely influential on legal thinking across the common law world”.  In contrast to the approach of other jurisdictions,  the Taskforce approached the issues from the perspective of figuring out what the law is rather than on what it ought to be. Courts and regulators  in the UK would be in a better position to make decisions about regulation or remedies after the publication of the Statement.  The Statement notes that the “great advantage of the English common law system is its inherent flexibility”  which can adjust to technological change.

um events in november October 25, 2019

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Among our exciting upcoming events at the University of Miami School of Law next month are the finals of the Foreign Direct Investment (FDI) Moot on November 7-10, which we are hosting in collaboration with the Center for International Legal Studies (register here).

In addition, on November 14-15 we are hosting the Second International Comparative Insolvency Symposium. You can see the program here. It looks fascinating.

miami law lecture: catherine powell on race, gender and nation in an age of shifting borders October 14, 2019

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At 6.00 pm tomorrow, at the Law School, this will be the annual Louis Henkin Lecture.

uk parliament gets back to work tomorrow September 24, 2019

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And all live Bills of the 2017 session remain live.  

uk supreme court: prorogation unlawful, null and of no effect September 24, 2019

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The Constitutional principles of Parliamentary sovereignty and parliamentary accountability mean that there are limits to the power to prorogue Parliament:

“For the purposes of the present case, therefore, the relevant limit upon the power to prorogue can be expressed in this way: that a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course.”

Prorogation had the effect of frustrating or preventing the constitutional role of Parliament in holding the Government to account, and there was no “reasonable justification for taking action which had such an extreme effect upon the fundamentals of our democracy.”

Four points made clear at the outset:

1. The Prime Minister has with respect to prorogation “a constitutional responsibility, as the only person with power to do so, to have regard to all relevant interests, including the interests of Parliament.”

2. “[A]lthough the courts cannot decide political questions, the fact that a legal dispute concerns the conduct of politicians, or arises from a matter of political controversy, has never been sufficient reason for the courts to refuse to consider it….almost all important decisions made by the executive have a political hue to them. Nevertheless, the courts have exercised a supervisory jurisdiction over the decisions of the executive for centuries. Many if not most of the constitutional cases in our legal history have been concerned with politics in that sense.”

3. “The Prime Minister’s accountability to Parliament does not in itself justify the conclusion that the courts have no legitimate role to play.”

4. “[I]f the issue before the court is justiciable, deciding it will not offend against the separation of powers. As we have just indicated, the court will be performing its proper function under our constitution. Indeed, by ensuring that the Government does not use the power of prorogation unlawfully with the effect of preventing Parliament from carrying out its proper functions, the court will be giving effect to the separation of powers.”

english high court: prorogation not justiciable September 11, 2019

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In contrast with the Court of Session, the English High Court held today that the prorogation is not justiciable. At para. 42 the court stated:

The criteria adopted by the courts for identifying non-justiciable exercises of prerogative power are whether they involve matters of “high policy” or are “political”.

And, at para. 47, :

the essential characteristic of a “political” issue is the absence of judicial or legal standards by which to assess the legality of the Executive’s decision or action.

hong kong stock exchange offer for london stock exchange September 11, 2019

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After weeks of civil unrest in Hong Kong, raising questions about the extent to which Hong Kong is, and may continue to be,  run under a separate regime from that of mainland China, the Hong Kong Stock Exchange announced a planned offer for the London Stock Exchange. This week Brexit got even more complicated (today the Court of Session held that the prorogation of Parliament until October 14th was unlawful), and the offer raises some interesting questions about what financial market activity in the UK might look like after Brexit.  

forthcoming symposium on petty offenses at umlaw September 10, 2019

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On 20-21 September there’s what promises to be a fascinating and important symposium, open to all, on petty offenses and social justice at the Donna Shalala Student Center at UM.  You can sign up here.

The event will explore the use of litigation; human rights advocacy at international, regional, national, and local levels; and creative campaigning. It will draw on work from Ghana, Guinea, Guyana, Hungary, India, Israel, Jamaica, Kenya, Madagascar, Malawi, Nigeria, Sierra Leone, Uganda, and the United States. A special symposium issue of the University of Miami Law Review and the University of Miami Race and Social Justice Law Review will further capture lessons and reflections.

Faculty from Miami Law who work at the intersection of criminal law and human rights, including Caroline Bettinger-LópezDonna Coker, Tamar Ezer, and Stephen Schnably, who was co-counsel on the landmark Pottinger v. City of Miami case, will be featured. Additionally, the conference brings together key experts from the field, including Maria Teresa Manuela with the African Commission on Human and Peoples’ Rights and special rapporteur on Policing and Prisons in Africa; Anneke Meerkotter, the litigation director of the Southern Africa Litigation Centre; Rob Robinson, a housing rights advocate with the National Economic and Social Rights Initiative and formerly homeless himself in Miami and New York; and Tracy Robinson, the deputy dean of the Faculty of Law at the University of the West Indies and former president of the Inter-American Commission on Human Rights.