IALS Student Law Review

Welcome to the IALS Student Law Review

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In this Editorial, Tugçe Yalçin (Editor-in-Chief of ISLRev, Institute of Advanced Legal Studies, University of London) welcomes you to the Autumn 2021 issue of the IALS Student Law Review (ISLRev) and introduces the articles featured in this issue of the journal.

Simplification to the Immigration Rules and its effects

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The Immigration Rules hold paramount importance in controlling and monitoring the UK borders and non-British population. These rules expansively dictate the boundaries and movements of every non-British citizen; hence, they are relied upon widely by public bodies and the judiciary. The Immigration Act 1971 was initially passed to control the UK immigration system. However, the law under this statute has been developed on an ad hoc basis, which has resulted in a convoluted set of laws being established.

The complexity of these laws stems predominantly from statutory provisions being continuously updated or amended and subjective judicial interpretations of the Immigration Rules being mostly inconsistent. These issues are exacerbated further by the ever-evolving social change surrounding immigration. These difficulties concerning the current Immigration Rules have led the Law Commission in its 13th programme of law reform to propose the idea that Immigration Rules need simplification urgently.

What effect does the enlightened shareholder value principle in the Companies Act 2006 have on the corporate objective of UK companies?

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The Organisation for Economic Co-operation and Development defines corporate governance as the system by which companies are directed and controlled, and through which a company’s objectives are set. Corporate governance theories are closely linked to those of corporate objectives, as the interests that directors have a duty to promote must be determined in order for one to consider issues of corporate governance. This relationship is demonstrated in the UK Corporate Governance Code’s postulation that a company should be managed efficiently to return long-term profits to the shareholders. Corporate objective debates are commonly divided between the shareholder value (‘SV’) theory and the stakeholder theory. This dichotomy remains evident in section 172(1) of the Companies Act (‘CA’) 2006’s stipulation that directors have a duty to act in a way which they consider, in good faith, to promote the success of the company for the benefit of its members, or its shareholders, as a whole. This is similar to the fiduciary duty, such as the duty to act bona fide in the best interests of the company, owed at common law antecedent to the CA 2006. It continues to require directors, when fulfilling the aforementioned duty, to have regards to the non-exhaustive list of long-term consequences alongside employee interests, fostering business relationships, impact on the community and environment, maintaining an upright reputation, and acting fairly between the company’s members. This paper begins by outlining modern discussions on the shareholder-stakeholder paradigm leading up to the codification of directors’ duties in the CA 2006, and the underlying political and legal pressures that led to the Company Law Review Steering Group (‘CLRSG’) recommendation to develop the longstanding principle of SV into enlightened shareholder value (‘ESV’) in section 172(1) of the CA 2006. To assess whether section 172(1) of the CA 2006 has modernised the SV model established in the pre-2006 case law, this paper explores the impact of the legislation on subsequent corporate governance practices in the country, specifically in regard to the reporting requirements found in later statutory instruments. Finally, it is concluded that despite legislators omitting to profoundly expand on the case law preceding the ESV provisions, rebranding SV with an ‘enlightened’ streak creates a margin for more fundamental changes, both legal and normative in nature, in the future of the doctrine, should this be required.

The limits of refugee protection in mass influx situations

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This decade has witnessed a striking rise in the number of refugees globally, a category of persons whom enjoy the right of non-refoulement, which dictates that no refugee or asylum seeker is to be returned to any territory where he or she may face persecution, torture, or other ill-treatment. This fundamental obligation is both of a customary nature and enshrined in numerous instruments, the most pertinent of which for the purposes of refugees being the 1951 Convention Relating to the Status of Refugees. Despite this, an alarming trend has emerged in the practice of states in direct contravention thereto. A number of states have sought to curb refugee movement and intake through, inter alia, bilateral agreements and forcible repatriation. In light of this, this article undertakes a critical examination of the principle of non-refoulement, with a view to demonstrating its patent inviolability. The article responds to the proposition that large-scale refugee movements may justify the institution of a system exempting states from honouring the international legal obligation at issue, to which it argues that there can be no viable grounds on which to derogate from the cornerstone of refugee protection. It first explores non-refoulement’s centrality to the refugee protection framework in international law, particularly focusing on the context in which the 1951 Convention was drafted, the normative character of the principle, derogations provided for in human rights treaties, and existing coping mechanisms. The paper thereafter critically assesses the conceivable theoretical and practical consequences of allowing exceptions to the cardinal rule in times of mass influx situations.

Pop goes the diesel! A Case comment on Case C‑343/19 Verein fur Konsumenteninformation v Volkswagen AG

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Case C 343/19 Verein fur Konsumenteninformation v Volkswagen AG is an EU jurisdictional dispute about an Austrian consumer claim concerning vehicles that were defectively manufactured by a German company. The resulting decision by the Court of the Justice of the European Union (CJEU) granted jurisdiction for Austrian courts to hear the case. This case comment will proceed in five steps. Firstly, it provides a summary of the facts. Secondly, it lays down the jurisdictional rules per Brussels I Regulation 2012 (Brussels I), and the precedent surrounding Article 7(2) Brussels I on alternative jurisdiction for torts. Thirdly, it agrees with the CJEU that the place of final purchase before the scandal (Austria) is the place of initial damage. Fourth, it criticises the CJEU’s characterisation of the case as one involving material damage rather than pure financial loss, while using reasoning from pure financial loss case to justify granting alternative jurisdiction in the present dispute. Finally, this comment laments that the CJEU failed to (1) clarify alternative jurisdiction rules for when the place of purchase and place of marketing are different, and (2) flesh out substantive criteria for what ‘other specific circumstances’ are required in order to grant Article 7(2) alternative jurisdiction.

Subordination of Shareholder Loans between Creditor Protection and Rescue Culture

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In financially distressed companies, shareholders have the tendency, as recorded throughout all major jurisdictions, to provide finance by way of loans for purposes of accomplishing a better position in the prospective insolvency proceedings to the detriment of the external creditors while “gambling” on the company’s resurrection. Insolvency Law seeks to intervene to limit such practices by subordinating this type of shareholder loans to the claims of the other creditors, thus upholding its nature of “creditor protection law”.
This paper provides a critical overview of the existing legal framework concerning the subordination of shareholder loans and, in doing so, examines the function of Insolvency Law when dealing with it. In the first place, this paper describes the conflict in corporate law between shareholders and creditors brought about by the practice of shareholder loans. Secondly, it discusses and examines some of the rules that US Bankruptcy Law and German Insolvency Law developed in this area. Thirdly, in light of the resulting findings, the paper will focus on the issue raised concerning the lack in the norms with respect to the role that shareholder loans could efficiently perform in rescuing companies on the eve of their insolvency.
It is argued in this paper that an unselective subordination of shareholder loans and the unconditioned protection of creditors should not be persistently regarded as the “panacea” . It is rather the opinion of this paper that the function of Insolvency Law in the context of shareholder loans should be reviewed by policymakers to encompass the benefit of the company as a whole.

Should the definition of 'mental disorder' under the Mental Health Act 1983 encompass autism, for the purpose of compulsory detention?

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To be sectioned under the Mental Health Act 1983 (MHA), an individual must meet the definition of ‘mental disorder’ as per s.1(2). Despite the scarcity in academic scholarship concerning autism within the scope of the Act , the ‘mental disorder’ definition has been considered ludicrously broad . This paper seeks to highlight that the inclusion of autism under the MHA, results in discriminatory detention based on autism-related behaviour; therefore, the removal of autism from the MHA is necessary.

Does the French law restricting the religious practice of the Islamic full-face veil amount to persecution within the remit of International Refugee Law, or is it a legitimate distinction under International Human Rights Law?

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This article intends to prove that the general blanket ban restricting the public wearing of a full-face veil in France is a law that illegitimately discriminates against Muslim women who choose to cover their face with a Niqab and Burqa. The Niqab and Burqa are both full Islamic veils, which cover the whole body including the face, leaving just a narrow slit for the eyes (Niqab) or covering the eyes too (Burqa).[1] Muslim women who wear an Islamic veil, do so as a badge of honour—one that is liberating, empowering, and brings solace because it is worn solely as a religious act of compliance to God. Such face coverings are a valid form of manifestation of freedom of religion; a freedom enshrined as a non-derogable right under International Human Rights Law.[2] Yet, Muslim women have been severely deprived of such a right since the enforcement of Loi 2010-1192 du 11 Octobre 2010 interdisant la dissimulation du visage dans l'espace public - Law 2010-1192 of 11 October 2010 on the Prohibition of Concealing the Face in Public Space.[3] This law has allowed for the nationwide marginalisation of a group of women simply trying to live in the comfort of their faith. I will contend that such a profane law is not only a clear form of indirect discrimination under International Human Rights Law through the State’s illegitimate justifications; but also, that the law amounts to persecution on cumulative grounds under the Refugee Convention 1951.

Full issue

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Full issue PDF

Editorial Board and Associate Editors

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Editorial Board and Associate Editors