Oxford University Undergraduate Law Journal

Issue 1 2012 OXFORD UNIVERSITY UNDERGRADUATE LAW JOURNAL ouulj.law.ox.ac.uk The views expressed by the contributors are not necessarily those of the Editorial or Honorary Board of the Oxford University Undergraduate Law Journal. Whilst every effort has been made to ensure that the information contained in this journal is correct, the Editors cannot accept any responsibility for any errors or omissions, or for any consequences resulting therefrom. © 2011 individual authors. 2011-12 Editorial Board Editor-in-Chief Maria Sonam Hertford College General Editor Christy Rush Magdalen College Editors Samuel Campbell Elton Tan St Edmund Hall Exeter College Associate Editors Ian Cheong James Fisher St Edmund Hall St Catherine’s College Li Sian Goh Owen Lloyd Corpus Christi College Merton College Danny Tang Judy Wong Harris Manchester College New College Honorary Board Sir Nicolas Bratza Professor Michael Bridge Donald Findlay QC Professor Christopher Forsyth Ian Gatt QC The Right Hon the Lord Judge The Right Hon the Lord Kerr of Tonaghmore Michael Mansfield QC The Right Hon the Lord Neuberger of Abbotsbury The Right Hon the Lord Phillips of Worth Matravers Lord Pannick QC Dinah Rose QC Sir Konrad Schiemann The Right Hon the Lord Wilson of Culworth Contents English Law and the Doctrine of Abuse of Rights Mateusz Krauze ............................................................................................ 1 Life After Bankovic and Al-Skeini v UK: Extraterritorial Jurisdiction Under the European Convention on Human Rights Natasha Holcroft-Emmess ..............................................................................11 Shifting the Scales of Social Justice in the Cohabitation Context: The Juridical Basis for the Varying of Interests in Residential Property Matthew McGhee ........................................................................................19 The Jurisdictional Immunities Case: Between Immunity and Impunity Jurisdictional Immunities of the State (Germany v Italy: Greece intervening) Judgment of 3 February 2012, International Court of Justice Elton Tan Xue Yang ......................................................................................32 Mexfield v Berrisford: A Word of Caution Ketan Ahuja ...............................................................................................37 Primus inter pares – Re-rationalising EU Legal Supremacy as Co-operative Dualism Joshua Folkard ............................................................................................45 ‘Reverse Closed Evidence’ Procedures, Deportation, and Justice Huang Jiahui ..............................................................................................58 Oxford University Undergraduate Law Journal, Issue 1 (2012), vii Introduction Maria Sonam, Editor-in-Chief he Oxford University Undergraduate Law Journal was founded with a view to facili- tating and reinforcing the already strong academic ethos in the study of law at the University of Oxford. It has the aim of providing students a platform from which to Texplore legal topics pertaining to the UK jurisdiction which are germane to the Jurispru- dence curriculum; encouraging and promoting excellence in learning, debate and indepen- dent thought. This is further reflected in the democratising ‘by the students, for the students’ set-up, upon which the Journal is based. In order to withstand the contemporary legal and political challenges that face us, in tandem with the increasing commercialisation of the legal profession, it is important to reinstate and engage with those values and skills which go to the heart of good study and good advocacy; analytical rigour, argumentative clarity and confidence in originality. The Editors, Oxford Law Faculty members and the OUULJ Honorary Board hope that this Journal will help to achieve the culture described. Although this project is in its infancy, we envisage that the Journal will become entrenched in the way that the Jurisprudence course is delivered. To this end, the Tutor Recommendation Scheme, whereby tutors will encourage strong candidates to make submissions, will be particularly instrumental in implementing OUULJ’s objectives of contributory learning. I sincerely hope that OUULJ becomes a longstanding publication at the University of Oxford and that it provides students with an arena to engage with the most contentious issues of our day without curriculum constraints. Indeed, the Journal was conceived on the premise that we should not underestimate the contribution that the youngest legal minds can make to academic thought. I would like to take this opportunity to thank our Board members for their support and en- thusiasm for this project and also Timothy Endicott and Jonathan Herring of the University of Oxford Law Faculty for their active endorsement of OUULJ and their positive reception to its proposal. Yours sincerely, Maria Sonam (Hertford College) Founder and Editor-in-Chief Oxford University Undergraduate Law Journal, Issue 1 (2012), 1 English Law and the Doctrine of Abuse of Rights Mateusz Krauze1 oes English law recognise a doctrine of abuse of rights? Surprisingly little attention has been paid to this question. Both judicial opinion and academic commentary are scarce. The general opinion seems to be that, in contrast to many continental sys- Dtems (which recognise an overarching doctrine of abuse of rights), such a concept is foreign to English law. This paper will attempt to clarify the assumptions underlying this opinion and will argue that the differences between the English and continental approaches are overem- phasised. It will be contended that the continental approach is less coherent than is generally accepted and that the doctrine of abuse of rights, by virtue of its presence in an increasing number of areas, is an important principle in English law. In the first stage of the discussion, the concept of abuse of rights will be elucidated with reference to two continental legal systems (French and German) and the jurisprudence of the Court of Justice of the European Union (‘CJEU’). The differences between the national concepts and the European concept will justify the claim that there is no longer, if there ever was, any coherent continental approach to abuse of rights. In the second stage, an attempt will be made to (re)interpret the English law on secret trusts and on lawful act duress as pre- mised on a doctrine of abuse of rights. Finally, the possible further expansion of the abuse of rights in English law by means of the General Anti-Avoidance Rule (‘GAAR’) aimed at deal- ing with tax avoidance will be explored. England and the Continent – a false opposition? There is no authoritative, universal understanding of what constitutes abuse of rights. The concept can only be elucidated by looking at the rules of particular jurisdictions. A more detailed analysis of certain national systems will be presented in the next section but the fol- lowing preliminary remarks should provide a sound foundation for the discussion. What is common to the approaches taken by most continental systems is that abuse of law (regardless of how it is defined) does not enjoy legal protection. This is most forcefully expressed in Ar- ticle 2 of the Swiss Civil Code: ‘l’abus manifeste d’un droit n’est pas protégé par la loi’.2 How- ever, that is where the consensus runs out. As will be seen, there are differences not only in how the abuse of rights is defined, but also in the consequences which follow from the abuse of rights. Contrary to what might be expected, the foundations of the doctrine are rarely contained in some sweeping general statements of principle, but have often been read into provisions that on their literal interpretation would be incapable of bearing such a meaning. Early English case law contains some dicta which appear to suggest reluctance to adopt the language of abuse of rights. In Waterer v Freeman3 the court affirmed the principle that even if imprisonment is procured by forgery, an act which in that context was expressly referred 1 Harris Manchester College. 2 ‘The manifest abuse of a right is not protected by the law’. 3 (1619) 80 ER 412. 2 English Law and the Doctrine of Abuse of Rights to as ‘abuse of law’,4 the sentence cannot be avoided in spite of being ‘untruly’ procured. A more modern example of similarly unfavourable judicial attitude can be found in the famous dictum of Lord Halsbury in Bradford v Pickles:5 ‘[i]f it was a lawful act, however ill the motive might be, he had a right to do it. If it was an unlawful act, however good his motive might be, he would have no right to do it’. As a result, it is generally accepted that the English rec- ognition of the doctrine of abuse of rights is of limited overall utility.6 It is indeed hard to deny that an overarching doctrine has never been expressly recognised. However, it will be contended that some implicit support can be found for a principle of abuse of rights serving as a useful explanatory tool, if not a firm theoretical foundation, for many areas of English law. In other words, an argument can be made that while the English judges have never recognised a principle of abuse of rights as an organising principle of the whole legal system, there is nonetheless a growing number of areas in which it operates. Aside from certain recognised instances where the concept is already used, such as in the law of nuisance7 and abuse of process,8 at least two more can be added. As will be argued below, both the law on secret trusts and the

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