LLM PAPER 1 – LAW, MEDICINE AND LIFE SCIENCES
EXAMINER’S REPORT 2019
This was the fourth year that this paper was offered and there were 23 candidates who sat the
paper. In general, the candidates performed very well: 8 received a first, and 15 received a 2:1.
When reading this report, it should be borne in mind that there are many different paths to an
excellent answer and that not all of them can be identified here. The specific remarks below focus
on the ways of answering the questions that were adopted by those sitting the exam.
Question 1
This question on patients’ interests in restricting access to their bodies and their data was attempted
by 4 candidates. The best answers shared three core features. First, they recognized that readings
from many different sessions were relevant to the question: e.g., the sessions on human subjects
research, confidentiality, research on biospecimens and data, and property in the body. Second,
they explained how a right to restrict access to one’s body and data might be grounded in the same
general principles: e.g., principles of autonomy, privacy, and/or ownership. Third, they critically
evaluated whether these principles would truly provide “the same reasons” for control when
applied in the two different contexts, identifying and engaging with various potential counter-
arguments.
Question 2
This question on treatment bias in the law of capacity was attempted by 9 candidates. The best
answers recognized that the quotation made two claims that needed to be addressed.
First, the candidates needed to explore whether and how the MCA and
Gillick test are
biased towards treatment. Under the
Gillick test, one might cite
Re R for the principle that a child
who has the capacity to consent to treatment does not necessarily have the right to refuse treatment.
This arguably creates a treatment bias, as it increases the number of parties who can consent to
treatment, but not the number who can refuse. Under the MCA, there are two potential causes of
treatment bias. The first is the MCA’s creation of a presumption of capacity. This would seem to
be autonomy-enhancing, but if doctors only ever question capacity when patients refuse treatment
(in order to override this refusal), a treatment bias should result. The second is MCA section 26,
which creates different liability rules for doctors who provide versus withhold treatment under an
Advanced Decision (AD): a doctor who ignores a valid AD and provides treatment will avoid
liability if the doctor believed the AD was invalid (regardless of whether this belief was
reasonable), whereas a doctor who follows an invalid AD and withholds treatment will only avoid
liability if the doctor had a reasonable belief that it was valid. This arguably creates an incentive
to provide treatment, especially in cases of uncertainty.
Second, after identifying the potential causes of treatment bias, the candidates needed to
address the claim that the bias was “undue”. The best answers differentiated between treatment
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bias for adults versus children, as these groups arguably raise different concerns. In addition, they
identified and engaged with arguments that might be made in defence of the status quo: e.g., the
argument that the bias towards treatment is itself ethically justified (for children and/or adults),
and the argument that the bias is an undesirable but unavoidable aspect of the best possible system.
Question 3
This question on resource allocation was attempted by 10 candidates. It invited candidates to
identify and critically evaluate the different ways in which one might defend the claim that the
NHS should prioritize helping “those who are most in need” over the “health of the population.”
There were two broad questions to explore here. First, there was the question of whether and how
the distinction in the quotation was the same as the distinction between identified vs. statistical
lives, treatment vs. prevention, or high risk vs. low risk patients. Second, there was the question
of whether there are good reasons to prioritize identified lives over statistical lives, treatment over
prevention, or high risk over low risk patients. A good answer demonstrated knowledge of the
assigned readings on these hard topics, and the best answers developed arguments that went
beyond those made by Frick and Brock/Wickler, which had been discussed in depth in class.
Question 4 This cross-cutting thematic question on framing was attempted by 9 candidates. Most candidates
supported the claim with examples from the unit on end of life care, arguing that the act/omission
and the “doctrine double effect” rely on framing effects that are morally irrelevant. The better
answers addressed potential counter-arguments on these points, and also provided examples from
other area of the course: e.g., the causation analysis in tort law, capacity determinations under the
MCA, identified vs. statistical lives in public health policy, etc. A good answer also addressed
the claim that these framing effects have received “insufficient attention” – a claim that is hard to
make with respect to the most commonly provided examples (as the act/omission and the doctrine
double effect have been widely discussed), but more defensible with respect to examples from
other areas of the course.
Question 5
This question on the justifiability of the outcome in
Gregg v Scott was attempted by 6 candidates.
The best answers recognized two important distinctions. First, they recognized that Gregg could
have won via two very different paths: the creation of an exception to traditional causation rules;
or the recognition of “loss of chance” as an actionable head of damage. Second, they recognized
that for either path, there is a distinction between awarding damages in case like
Gregg (where the
claimant is alive and might fully recover) versus a case in which the claimant is not alive or will
not fully recover. Recognizing these distinctions allowed for a full analysis of whether and how
the law should have been modified in the case of
Gregg. The best answers discussed not only
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whether the current law created “rough justice” (as stated by Lord Nicholls), but also whether the
law could be modified in a way that would not create even more injustice.
Question 6
This question on reproductive autonomy was attempted by 12 students. Overall, the cohort of
answers were weaker than expected. Good answers described the extent to which English law
restricted medical assistance for conception, focussing on some of the prohibitions under the HFE
Act 1990 and the requirement to consider the welfare of any child who may be born as a result of
the treatment, including the child’s need for supportive parenting (s. 13(5)). Good answers also
noted that the latter rule rarely results in infertility treatment service being denied. From this point,
it was possible for students to offer their own views on whether the law governing assisted
conception posed more than ‘a few legal restrictions’, and thus whether assisted conception was
treated in a legally non-interventionist way (like coital reproduction). It also provided the basis
for students to discuss whether the restrictions were justified. Some students argued that the s.
13(5) restriction was discriminatory because it only applied to infertile couples who needed
medical assistance, whereas it could apply to all would-be parents. Others argued that although
some restrictions could be justified, justifications that appeal to the “best interests of the resulting
child” are undermined by what philosophers have called the non-identity problem. This is the idea
that the resultant child cannot be harmed by procedures concerning their conception that bring
about their life (even if it is a seriously imperfect life), unless their life is worse than not existing.
Many students argued that it was legitimate for the State to set a threshold when it was providing
infrastructure and subsidies. Furthermore, they argued that some restrictions might also be justified
with respect to coital reproduction, but that these would be difficult to police. Some students noted
there may be other reasons for some of the legal restrictions – e.g., rules against germline gene
editing embryos during assisted conception might be based on concerns about community harms
or wrongs.
Question 7
This was a straightforward question about human germline editing, which was attempted by 7
students. The question invited students to summarise objections to human germline editing and to
explain which objections they considered most persuasive (and which were less persuasive). The
question also invited discussion of whether the strongest objections led logically to the conclusion
that all human germline editing should be banned. This meant that students could discuss forms of
regulation short of a prohibition (e.g., licensing, permission subject to ethics approval, self-
regulation), or exclusions to a prohibition. For example, students might have suggested an
exception be made only for therapeutic circumstances; or for a sub-set of therapeutic circumstances
where the disease being edited is seriously debilitating warranting additional risk-taking; or for
approved research trials. If making this kind of argument, students should have discussed how the
legal framework would deal with the risk of off-target effects (e.g., would this risk be dealt with
via processes of informed consent? or expert review?). The students then needed to evaluable
whether a prohibition was preferable to such alternatives – perhaps in view of enforcement
difficulties, uncertainties about risks and effective risk-management via informed consent, or
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difficulties defining sufficiently precise boundaries between lawful and unlawful conduct. If
adopting this position, one might argue that a blanket prohibition should be introduced for the time
being and reviewed in time.
Question 8
This question was attempted by 4 students. It required students to discuss why it was appropriate
for the law to require (a degree of) proof of safety and efficacy prior to market sales of
pharmaceuticals. The statement suggested that these rules were more justifiable in the US than in
the UK. The reason offered was that American patients are more at risk from dangerous new drugs
because getting follow up care is financially more difficult and because patients are more likely to
be persuaded to take a dangerous new drug in the US through direct-to-consumer advertising.
Students tackling this question unanimously disagreed. They took the view that patients in the UK
were also at-risk and should be protected by pre-market regulation. Disappointingly, students did
not discuss counter-arguments. Counter-arguments might have included the idea that patients’
doctors can help them decide whether their circumstances warrant trying an unproven drug. The
idea is not outlandish – doctors regularly prescribe drugs to patients for conditions that have not
been approved by the FDA or EMA (but which are lawfully on the shelves for other conditions).
The law could allow drugs to be marketed after passing basic toxicology tests, with post-marketing
reporting requirements by way of follow-up. Furthermore, Darrow argues that pre-market efficacy
testing is rudimentary in any event. Another argument is that regulations allowing accelerated
approval pursue a similar goal.
Question 9
Answered by 8 students, this question focussed predominantly on the seminar in which we
discussed the importance of finding new classes of antibiotics to avoid a future scenario where
antibiotic-resistant bacteria cause frequent deadly infections. Strangely not all students showed
familiarity with the core reading set for that class, and the trio of policy objectives: innovation,
access and conservation. The question invited students to explain why the standard incentive for
pharmaceutical R&D (patents with a duration of up to 20 years) is a much weaker incentive for
new antibiotics R&D: e.g., the fact that government policy pushes for a small volume of sales, the
prices are usually low, and the drugs have limited effective life times as bacteria develop
resistance. In addition, it invited students to discuss why patent protection does not support the
additional public policy goal of preserving valuable antibiotics, as companies are inclined to try to
sell their patented antibiotic to make returns, rather than conserve it. The question then invited
students to discuss whether the issues were best solved by doubling the period of market
exclusivity. Although this would give an originator company a longer period to charge higher
prices (untroubled by competition from other companies), clearly it does not help society or the
company very much. Bacteria can develop resistance quicker than the 40 year period, governments
will likely continue the tradition of discouraging sales and paying low prices, and society is not
protected from the companies trying to increase their prices. An alternative approach discussed in
the core readings was Kesselheim and Outterson’s ACE framework. Students ought to have been
able to discuss the pros and cons of this proposal. Students could also have discussed less ambitious
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policy proposals, e.g., value-based pricing for stock piles. The question also provided students
with an avenue to demonstrate their learning from another session of the course, inviting (but not
requiring) them to discuss whether naturally-occurring molecules (i.e., discoveries) should be
subject to patent protection.
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Paper 2: International Commercial Tax
This exam attracted 25 candidates; a regular group by LLM standards. Five
candidates received a I, 14 an upper II.1, three a lower II.1 with three II.2s. This was
another excellent set of results, which compared favourably with the LLM average for
the year. The average mark was 132, slightly less than the last time this paper was
offered in 2017. I am confident that part of the success was due to the students’ lively
engagement in both lectures and especially small group teaching.
As usual, the exam was divided into three essay questions and three problem
questions. This year there was no preference for essay questions or problem questions
- there were 38 answers to essay questions and 37 to problem questions. By
comparison, as usual, there was a big difference between those who chose the first
three questions compared to those who chose the last three questions – 50 answers
compared to 25 answers. It seems students particularly took notice of the observation
that the latter questions are usually the more challenging ones (balance of risk and
reward where average result stays the same). The most popular questions were Q2 &
Q3 (19 answers each) and the least Q5 (7 answers). As usual, three questions raised
EU law issues (Q3, Q5 and Q6). Answers to these questions were quite balanced, with
answers totalling 36 out of 75 answers. While I am sure that these questions were
favoured by students from the EU, it is also clear that many students from outside the
EU produced very good answers to these questions.
To repeat a comment from previous years, I remain intensely proud of how candidates
begin this course with very little experience in tax law and nevertheless perform well
in the exam (although sad that there were no starred firsts this year). In particular,
students showed comfort with the difficult issues raised by the BEPS project. The
learning curve continues to be exponential. I continue to receive positive feedback as
to the practicality of this course from the growing group of former students who end
up in international tax practice (and even from some who don’t). The special dynamic
of this course continues to be aided by the mix of students with expertise in a variety
of subjects and by the dedicated text for the subject. This year the students used the
manuscript of the fully updated second edition, which should be in print in 2020.
Question 1 was an essay question on the taxation of service fees. There were 12 very
good answers. Students had no trouble recounting the problems with Article 7 of the
OECD Model and the fundamentally different manner in which Article 12A of the
UN Model operates. The best answer pointed out that Article 12A, being focused on
services, could only ever solve some problems with the taxation of business profits.
Few answers tackled difficulties with Article 12A itself (what it covers and taxation
on a gross basis).
Question 2 was a problem question essentially focusing on problems associated with
PEs, which gave students plenty to talk about. It drew 19 answers. Most students took
the opportunity for easy marks by explaining why the treaty applied (with plenty of
relevant citations). On the content, for AB this was clearly focused on Art. 7 and so
the definition of PE in Art. 5. Most answers handled the agency PE issues well and
saw the relevance of
Knights of Columbus. Some addressed the fixed PE issues on the
main facts, but many did not (to their detriment). The relevance of Art. 12 was
superficial, but some answers took the opportunity to explain why it did not apply
(and the best noted why UN Art. 12 might apply). The assessment of F was largely
about Art. 9 and most answers competently discussed transfer pricing methods,
although some with more detail and knowledge than others. The alternate facts were
largely well done, most all spotting that now AB was more likely to have a fixed
place of business in R.
Question 3 was an essay question on EU treatment of cross-border losses. There were
19 answers and on average this was the best answered question. The question gave
students plenty of scope to just recount in summary form the case law of the CJEU on
cross-border losses. This was a safe way to get a solid 2i, especially if there was at
least a superficial attempt to address the question. A minority of answers went further
and engaged with the fundamental issue of whether recent case law has helped clarify
matters or whether it just underlines the arbitrary nature of the distinctions drawn by
the CJEU. The very best answer pointed out that the jurisprudence in this area differs
from the regular approach of the CJEU and this means that the court has to make
difficult distinctions about where one line of jurisprudence applies and where the
other applies.
Question 4 was a problem question that combined residence and source taxation. It
drew 8 answers and on average this was the least well answered question. The facts
involved an attempt to convert a potentially taxable Country A dividend (under Art.
10(2)) into a non-taxable capital gain (under Art. 13(5)). Many answers discussed Art.
9 (and even thin capitalisation), but these were not major issues on the facts. More
relevant was whether the redemption funds might be interest, but there are difficulties
in trying to apply Art. 11(3). Most answers noted that CFC rules in P would be
relevant. The better answers also discussed the treaty GAAR in Art. 29(9).
Question 5 was an essay question on BEPS measures targeted at residence countries
and required a comparison with the EU anti-tax avoidance Directive. It drew 7
answers, the least answered question. Like Q3, this question gave students the soft
option of focusing on CFC rules, which all answers discussed and discussed well.
Within this context, some answers addressed the question more directly than others.
Of course, there was much more to the BEPS project that could be discussed from a
residence country perspective, but only a few answers mentioned this. Topics
included the GAAR, Art. 1(3), transfer pricing, hybrids and, in the context of the
ATAD, exit taxes.
Question 6 was a problem question that indirectly involved treaty shopping,
corresponding adjustments for earnings stripping rules, cross-border losses with an
overlay of EU Law considerations. It was a slippery question with some deeper issues
that on the whole were done well. The excessive interest was generally done well
especially under the tax treaty, although some didn’t really explore this at the EU
level (e.g.
Thin Cap case). Withholding tax was also done pretty good, especially Art.
11(6). Generally, the Interest and Royalties Directive was done well. Better answers
mentioned possible application of Art. 9(2) in UQ. Best answers engaged with recent
EU law such as
Eqiom,
Deister, Masco, etc.
LAW OF RESTITUTION
EXAMINER’S REPORT 2019
General observations
Twenty-one candidates took the Law of Restitution examination. No candidate submitted a
dissertation in lieu of the written examination. The examination paper consisted of eight
questions of which candidates were required to answer three. The examination was closed
book, although candidates were provided with copies of relevant statutory materials. The
quality of the scripts was generally very high. One candidate was awarded a mark of distinction,
seven were awarded first class marks, 12 were awarded upper second class marks (of which a
significant number were over 130) and one was awarded a high lower second class mark. The
average mark was 136.
The Examiner and Assessor were impressed with the performance of the candidates. It was
clear that they had a very good understanding of the law, were able to apply it accurately and
could identify inconsistencies, had engaged well with a wide range of secondary literature and
were also able to engage critically with the policies which underlie the law. What distinguished
the exceptional performances from the very good was attention to detail in the exposition of
the law, the ability to apply the law to unorthodox scenarios, engagement with a variety of
doctrinal and theoretical controversies, and a willingnessness to express confidently the
candidate’s opinions, sometimes in an original way.
No candidate appeared to have significant timing issues, with the vast majority being able to
produce answers of roughly equal length. Further, most candidates avoided listing cases and
commentators without attempting to analyse and apply the law and venturing their own opinion
as to what the law should be and why. There was a tendency amongst some candidates to
assume that there was only one significant issue in a problem question which meant that they
failed to consider other matters which required analysis. Most answers to essay questions
pleasingly avoided a litany of what different commentators had said, with the candidates
instead seeking to develop an argument in response to the question, supported by appropriate
use of primary and secondary materials.
Observations on particular questions
1. Whilst not a popular essay question, this did elicit some outstanding answers. The question
provided candidates with an opportunity to engage with the views of some commentators about
the legitimacy of recognising the law of unjust enrichment. The very best answers engaged
with those views, identified counter-arguments, and then related this analysis to the state of the
law, particularly through recent decisions of the Supreme Court.
2. This problem question required candidates to identify various issues relating to the
interpretation of the law of unjust enrichment and then to consider whether the law which had
been expounded could be satisfactorily explained with reference to the corrective justice
principle. The first part was generally dealt with much more satisfactorily than the second. In
the first part relevant issues included: the identification of a mistake by Eyal (had he made a
misprediction or been a risk-taker?); was Zara enriched at Eyal’s expense when the money
came from Laura?; did Laura have a claim for restitution or was there a legal basis for the
transfer which barred the claim?; what was the nature of Zara’s enrichment when she had been
saved having to borrow money at an extortionate interest rate?; what was the nature of Zara’s
enrichment at Megan’s expense?; and what ground of restitution was relevant to Megan’s claim
for restitution? Most candidates identified these issues and then identified and applied the
relevant law appropriately. Candidates then needed to consider whether corrective justice was
a useful explanation for these rules. This particularly required analysis of whether
contemporary interpretations of ‘at the expense of’ and the rejection of the use value of money
as an enrichment can be explained with reference to corrective justice. This first required
candidates to identify clearly what was meant by corrective justice for these purposes. Very
few candidates did so.
3. Almost all candidates attempted this essay question which required them to consider three
propositions relating to the ground of mistake. This generally produced some good responses
which showed that candidates had a good understanding of the law and of the secondary
literature. However, some candidates simply used the three propositions as springboard for
description of the state of the law relating to the definition of mistake, the operation of mistake
of law and whether a different test of mistake is used for restitution of gifts. Better answers
considered critically what the law should be doing in each of these fields and why. For example,
as regards restitution of mistaken gifts, there were some thoughtful answers as to why recovery
of gifts should or should not be more difficult than restitution in respect of other transactions
and some even went on to analyse whether a satisfactory definition of ‘gift’ could be identified.
4. This problem question was moderately popular. The first part required candidates to consider
various restitutionary claims grounded in mistake and then to identify possible defences. The
second part required candidates to assume that the defendant was a public authority and to
consider whether this had an impact on the identification of the ground of restitution and on
the interpretation of defences. In a number of cases candidates left too little time to give the
second part the attention it deserved. On the first part, whilst there was some good analysis of
the various defences which might apply, there was a tendency to assume too readily that a
mistake could be established, when in fact there were important issues of causation and risk-
taking which needed to be considered.
5. This was a popular question which focused on failure of consideration. The first part was an
essay which elicited some thoughtful responses on the recognition of partial failure of
consideration in practice. There was some wide-ranging analysis of examples of partial failure
of consideration operating, but quite often candidates failed consider whether this was
appropriate. There was a significant opportunity provided by the question to consider the
arguments for and against recovery for partial failure of consideration. The second part was a
problem question on claims for restitution of money and services in circumstances where the
basis for the transfer had failed. This was generally answered well, although few candidates
considered in any detail whether different considerations apply where the claim relates to
restitution of services. Some candidates did, however, provide some good analysis of the
identification of an enrichment and its valuation, including the impact of a contract price as a
ceiling on the valuation of an enrichment.
6. Only one candidate answered this question which required consideration of the law relating
to reimbursement and contribution.
7. Whilst not a popular question, this essay elicited some very thoughtful responses on the
vexed question whether proprietary remedies are available where the defendant is unjustly
enriched and whether this should be the case. The answers tended to be ambitious in scope and
showed a very strong engagement with the case law and the secondary literature.
8. This was quite a popular essay question. A number of candidates regarded it as an essay on
the role of the defences within the law of unjust enrichment and assessed whether the general
defences are interpreted appropriately. However, the question also required candidates to
consider whether the interpretation of the cause of action has been relaxed and whether this has
had an effect on the operation and interpretation of the defences. A few candidates engaged
impressively with whether in fact the interpretation of the cause of action has been relaxed,
with recent cases suggesting a more restrictive interpretation, and whether it should follow that
less will be expected of the defences in future.
LL.M. Paper 5, Economics of Law and Regulation
Examiner’s Report, 2019
This exam consisted of 14 questions, each of which was in an essay form. Candidates were
required to answer three questions. Thus the exam was intended to enable candidates to
address themes of their choosing via an extended discussion.
Some of the questions had a theoretical or conceptual focus (questions 1-5), some were based
on the law and technology part of the course (questions 5 and 6), some were concerned with
particular substantive areas of law (questions 8-11), and some related to the law and
development part of the course (questions 12-14).
The more successful candidates were those able to show that they had understood, and could
apply, concepts and theories which are at the foundation of modern law and economics
scholarship and research, broadly conceived. These include the core concept of the Coase
theorem (1); models of evolutionary and epistemic games (2); behavioural law and
economics and ‘nudge’ theory (3); theories of legal evolution (4); and the legal origin
hypothesis (5).
Similarly, the questions on law and technology enabled candidates to display not just a
knowledge of technical aspects of emerging phenomena such as blockchain and machine
learning, but an awareness of the wider economic and institutional context of current changes
in the law-technology relation.
The questions on particular substantive areas of law (tort law, IP, labour law, company law)
provided candidates with the opportunity to show how economic theory and data could
improve understanding of the structure and functioning of the law in these areas.
The questions on inequality and development similar required an understanding of the role of
empirical methods in law and economics and of the relevance to the field of issues of social
justice and sustainability.
The overall standard of answers was excellent. First class answers were those exhibiting a
high degree of understanding of the relevant economic concepts as well as a discriminating
and (on occasion) critical approach to the issue of their explanatory force in relation to law
and legal institutions. A small number of outstanding scripts were awarded distinctions.
LLM Examiner’s Report 2019
Law and Information
Some thirty-three students took this paper this year and there were some excellent scripts with
eight achieving a First Class Mark. Eighteen achieved an upper second class mark and seven a lower
second.
Question One
‘[I]t may be appropriate to plead a remedy under [data protection] in addition to a claim in libel …
The different causes of action are directed to protecting different aspects of the right to private life:
the relevant provisions of [data protection] include the aim of protection from being subjected
unfairly and unlawfully to distress.’ (Moulay v Elaph Publishing [2017] EWCA Civ 29)
Is this understanding of the relationship or otherwise between defamation law and data protection
law satisfactory? If not, how should that relationship be adjusted?
Twenty-two candidates answered this question making it the most popular one on in the exam. All
but three candidates achieved at least a 2:1 and there were a number of Firsts. In looking at libel
and data protection side-by-side, it was important to elucidate the fundamental differences
between these causes of action, notably that libel protects both legal and natural persons and that
data protection isn’t necessarily defeated by Truth (which, unless concerning spent criminal
convictions, contrasts markedly with libel claims). Beyond this, it was important to focus precisely
on whether it would ever be appropriate to plead a remedy in both actions at the same time. That,
in turn, should have led an analysis of the second part of the question which explored the purpose of
these two causes of action. Libel has traditionally been seen as the mechanism by which the law
protects an individual’s ʻdeservedʼ reputation and balances this against other rights and interests. It
is therefore relatively clear why it might be considered the only cause of action which should be
invoked here and indeed some courts have come close to holding this (see e.g.
Terry case as regards
the misuse of private information/libel interface). However, data protection is an entirely new
regime which has the very broad purpose of protecting “fundamental rights and freedoms of natural
persons and in particular their right to the protection of personal data” (GDPR, art. 1(2)). So long as
the material scope of data protection is satisfied, there is a very strong argument that data subjects
should be able to obtain relief under this instrument as cases recent cases such as
Kordowski,
Moulay and
NT1 & NT2 have recognised. Moreover, contrary to the suggestion in
Moulay, it may be
argued that data protection’s purposes are not different to libel here but simply broader– after all,
guarding against (unjustified) damage to “reputation” is explicitly mentioned in the GDPR text itself
(see e.g. recital 75). Defamation and data protection offer claimants a different mixture of
advantages and disadvantages and candidates were expected to discuss these. The limitations of
defamation flowing from both recent case law and legislation were generally well addressed, as
were data protection’s potential strengths including wider remedies against certain ʻintermediariesʼ,
no need to prove a likelihood of serious harm, more generous approach to the limitation period etc.
On the other hand, the potential triggering of data protection’s journalism/special expression
derogation and the challenges of surmounting this were generally missed, as was the traditionally
more generous approach to damages in defamation compared with that in data protection.
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Question Two
‘The General Data Protection Regulation 2016/679 requires that, even in relation to journalism, data
protection rather than other actions such as the misuse of private information must constitute the
primary mechanism for vindicating data subjects’ privacy rights in relation to the publishing of
personal information about them.’
Discuss, considering also the roles which data protection and the misuse of private information have
hitherto played in this area.
This question focused primarily on the relationship between data protection and the misuse of
private information (MoPI). It was attempted by twelve candidates. The best candidates recognised
that the question required a focus on pan-European data protection stipulations (now in Article
85(2) of the GDPR but formally in Article 9 of the Data Protection Directive 95/46) which require
that, even in relation to journalism, only derogations as “necessary” to reconcile competing rights
are adopted. The Court of Justice has further stipulated that these derogations must only be applied
as “strictly necessary” (see e.g. C-345/17
Buivids). Arguably, the fact that an alternative remedy
might be available in MoPI is far from enough to make a derogation ʻstrictly necessaryʼ. On the
other hand, it could be claimed that pan-European law actually grants States very wide discretion (a
point accepted by the majority of the Court of Appeal in
Stunt, albeit that this will now be tested
further in the C-687/18
SY reference) and that it is preferable to generally rely on MoPI due to its
more targeted nature. That leads on to the second part of the question – which was generally better
done – which looked at the current role of data protection and MoPI in this area. Data protection
generally has a much wider scope and has been given greater attention in case law and practice
more recently. However, some remedies e.g. pre-publication injunctions are currently only available
in MoPI and case law has tended otherwise to merge data protection claims into that of MoPI.
Question Three
‘The General Data Protection Regulation 2016/679 represents an uneasy and unstable compromise
between a principles-based and a rules-based regime. Rather than representing a good balance, this
combination only fuels uncertainty as to the meaning and thrust of the law.’
Discuss.
This very general question on data protection was answered by seven candidates, with somewhat
mixed results. The question required an evaluation of the relationship between, on the one hand,
the broad principles set out in Article 5 of the GDPR and, on the other, its copious rules especially as
regards transparency, sensitive data and discipline requirements of various sorts. A wide variety of
evaluations of this basic structure were possible. It could be argued that the principles are generally
helpfully undergirded by detailed rules, especially as the latter but not the former can be derogated
from through national law on a wide range of grounds (GDPR, art. 23). Within such an argument, it
could also be noted that some of the rules themselves do try to build in a ʻrisk-basedʼ approach
which has key similarities to that of a ʻprinciples basedʼ approach. On the other hand, it should have
been noted that there is no explicit potential to derogate from many of the discipline rules outside
of special expression (GDPR, art. 85(2)), that States have struggled to adopt appropriate derogations
in most of these rule-based areas and that there is therefore a dange of the framework being
acontextual which can lead to arbitrary results and a lack of legibility.
2
Question Four
‘[T]he concept [of journalism] is not so elastic that it can be stretched to embrace every activity that
has to do with [the public] conveying [of] information or opinions. To label all such activity as
“journalism” would be to elide the concept of journalism with that of communication. The two are
plainly not the same, and I do not consider that Google’s own activity can be equated with
journalism.’ (NT1 & NT2 v Google [2018] EWHC 799 (QB))
Discuss.
This question focused on a comment within the
NT1 & NT2 case concerning the definition of
ʻjournalismʼ. It was answered by twelve candidates and was generally well done. This comment,
and most of the
NT1 & NT2 case as a whole, was concerned with data protection. Candidates
should, therefore, have focused on definition of journalism (and special expression more broadly)
within this regime. The Court of Justice has held that journalism cannot be equated to all forms of
publication, both explicitly in C-345/17
Buivids and implicitly as regards search engines in the earlier
case of C-131/12
Google Spain. Given that the journalistic/special expression derogation is very
deep and finds justification in journalism/special expression’s preeminent role in public discourse,
this makes some sense. However, difficult interpretative problems remain, e.g. what should be the
position of citizen’s journalists? what about news archives? etc. An additional question is how
expressive activity that falls outside of journalism/special expression should be regulated, especially
when it involves sensitive data (see C-136/17
GC). The best candidates explored these dilemmas in
comparison with the structure of other information law actions such as defamation law and the
misuse of private information.
Question Five
‘The need to identify a specific and sufficient legal basis for processing is little more than a formality
in relation to most personal data but becomes hugely difficult once special data as defined by article
9 or criminal data as defined by article 10 of the General Data Protection Regulation 2016/679 is
involved. Such stark divergences result in illogical, disproportionate and uncertain legal outcomes
which risk bringing data protection into disrepute.’
Discuss.
This question required a detailed focus on the legal bases for processing set down in Article 6 for all
data and Articles 9 and 10 for special data and criminal data respectively. It was attempted by
thirteen candidates. Although many candidates provided competent answers, there were few
excellent attempts. One reason is that that many students concentrated exclusively on the sensitive
data regime detailing (admittedly very valid) points as regards the uncertainties of definition,
dangers of both under- and over-inclusion and the challenges of applying a rule-based regime
appropriately to the myriad types of processing which full under these provisions. However, the
question also required grappling with the general legal bases set out in Article 6. Are these really
“little more than a formality” or are they, as cases such as C-131/12
Google Spain suggested, actually
quite strict even if rather vague? Moreover, can any vagueness be justified as a natural
consequence of the breadth of the definition of personal data (C-434/16
Nowak)?
3
Question Six
‘The focus on data transparency in the General Data Protection Regulation 2016/679 presents a
formidable compliance challenge for controllers but does little to enhance the position of the data
subject.’
Discuss.
This question focused on a relatively discrete aspect of data protection, namely, the provisions
related data transparency. It was the second most popular question on the exam paper, being
answered by eighteen candidates. The question required a thorough understanding of the five types
of transparency recognised in the GDPR – (i) proactive transparency in the case of direct collection,
(ii) proactive transparency in other cases, (iii) general transparency, (iv) reactive subject access, (v)
transparency as regards data breaches. The nature of (iii) was generally misunderstood, this being
no longer a question of making a comprehensive register of data available but rather a residual form
of transparency as an alternative to (ii) when compliance would otherwise constitute a
disproportionate effort etc. Alongside demonstrating such an understanding, it was absolutely vital
to explore the precise veracity or otherwise of the statement. The GDPR has greatly expanded
transparency provisions especially in relation to (i) and (ii) and this is undoubtedly challenging to
comply with. Moreover, there is evidence that data subjects rarely read general transparency
notices (Cate, 2010) and that there is a low level of compliance. Arguably, the requirement to
disclose data breaches to subjects only where there is a “likely” “high risk” is also too vague/lenient.
However, as Van Alsenoy et. al. (2014)) and others have noted, transparency serves a wide variety of
purposes including putting controllers under the risk of scrutiny for questionable practices.
Moreover, in requiring a specification of purposes, legal basis, international data transfers etc. the
proactive transparency rules provide a substantial blueprint for responsible controllers to achieve a
wider compliance with data protection.
Question Seven
‘Cases such as ABC and others v Telegraph Media Group Ltd [2018] EWCA Civ 2329 demonstrate that
breach of confidence continues to play a central role in securing legal protection for natural persons
in relation to matters which may affect their private life.’
Discuss.
This question on breach of confidence was answered by nine candidates. The quotation required the
following to be addressed: (I) the extent to which/how breach of confidence had played a central
role in protecting natural persons in relations to matters affecting their private lives; (ii) why doubts
had arisen as to that “central role”; and (iii) the extent to which “cases such as ABC” demonstrate
that the action is important. On (i), one might have pointed to the historic absence of privacy
protection and the role of breach of confidence in protecting some aspects of private life (
Prince
Albert v Strange;
Argyll v Argyll; and the extension of the action in
Campbell). On (ii) one could have
highlighted how the action for MoPI had developed from breach of confidence, but latterly been
treated as distinct (
Google v Vidal-Hall). On (iii), students could have considered how far express
undertakings of confidence influence decisions on the balance between confidentiality and the
public interest compared with the Articles 8/10 balancing exercise, and the impact on interim relief.
In general, students who did poorly addressed only issues (i) and (ii) and demonstrated little
knowledge of (iii).
4
Question Eight
‘The Freedom of Information Act 2000 is an unnecessarily complex piece of legislation.’
Do you agree?
This question on freedom of information (FOI) was answered by three candidates. Most
acknowledged that the FOI regime was complex, focussing on the number of exemptions in Part II of
the FOIA 2000 (ss.21-44), and the differentiation between absolute and qualified exemptions in
section 2 (the latter being ones in which in all the circumstances of the case, the public interest in
maintaining the exemption outweighs the public interest in disclosing the information). Good
answers needed to engage with the issue of whether the complexity was “unnecessary,” or rather
an inevitable consequence of reconciling openness with various legitimate reasons for restricting the
circulation of information in the hands of public bodies (as well as with other regimes of regulating
data, such as the data protection regime: see Freedom of Information Act, s 40).
Question Nine
The Norford Police receive allegations from Tim Saunders, a producer working with prominent
television news personality Philippa Brightwell, that she sexually assaulted him whilst they were at
work at the British Widecasting Company (BWC). This results in the Norford Police deciding to
question Philippa, an intervention which they notify in advance to BWC. The Norford Times receives
a tip-off about this from a member of the Human Resources department of BWC and then publishes
the allegations against Philippa as a story online alongside pictures of Philippa being escorted by
police officers from the BWC building. The Norford Times also publish online an anonymous
interview with Tim which discloses that Philippa has engaged in regular group sex sessions with a
number of (unnamed) individuals she has met through the BWC Wellbeing Group, a social support
group for BWC employees. Both the story and the interview are prominently indexed against
Philippa’s full name on Gong, a popular internet search engine. BWC, a public authority under the
Freedom of Information Act 2000, receive a request asking for the precise dates and times Philippa
has attended Wellbeing Group meetings over the past year. Philippa does not dispute the truth of
the group sex claims but strongly maintains that the sexual assault allegations are false.
Assess
(i) what redress and/or compensatory relief Philippa Brightwell might be able to obtain against Tim
Saunders, the BWC, the Norford Times and Gong,
And
(ii) whether BWC is either entitled or required to communicate the information demanded of it
under the Freedom of Information Act 2000 and whether Philippa Brightwell can do anything to
resist such a potential outcome.
5
In contrast to previous years’ problem question, this question was only answered by three
candidates. The problem required candidates to pick apart the problem, identify and then address
the legal questions that arose in relation to each of the actors. The factual allegation of sexual
assault is both serious and said by PB to be false, thereby raising issues of defamation as well as
privacy and data protection; the allegations about group sex are admitted and so raise issues of
privacy and data protection. For each potential cause of action, it was necessary to consider how far
each party might be liable. For example, TS for making allegation to the Norfolk Police and giving
the anonymous interview to the Norford Times, what defences he might have (e.g. justification for
defamation; public interest, freedom of expression) and what, if any, remedies might be available;
BWC for the acts of its employee revealing the information it received from the Police to the NT, and
potential defence (public interest); and the NT for publishing the allegation, pictures and anonymous
interview with TS. In relation to Gong it was particularly important to recognise the centrality of a
data protection claim here, given that the journalistic exemption may not be engaged (
NT1 and NT2
v Google) and that story and interview include sensitive data concerning PB. Finally, with respect to
the FOI request for the precise dates and times Philippa has attended Wellbeing Group meetings
over the past year, candidates needed to consider the status of the BWC (FOIA, s 3, Sched 1) and the
application of exemptions including in particular that of Section 40 (personal information).
6
LLM, Paper 9: Corporate Finance
Examiner’s Report
The overall standard of the scripts was good. Answers to the paper general y il ustrated a
sound understanding of the substantive issues with a good grasp of detail, supported by
careful and thoughtful reading of the wider academic material. Most candidates answered
the question asked and resisted the urge to write general y on the topic. On the whole
candidates coped very wel with time pressures.
Statistics
LLM breakdown: First class –31%, Upper second class – 62.1%, Lower second class – 6.9%
MCL breakdown: First class – 22.2%, Upper second class -77.8%
One student wrote a thesis on a corporate finance topic in lieu of the paper. This thesis was
awarded a mark in the First Class.
Specific Questions
With the Corporate Finance exam, candidates were required to answer three out of six
questions set.
Question 1
This question was a moderately popular choice with candidates. The question was in two
parts; candidates were required to answer both parts. Part a) was a problem question; part
b) an essay question.
Question 1a)
The first part (a) invited candidates to consider the financial covenants that Caramba might
be asked to accept when raising new debt finance, and whether it mattered if the loan was
syndicated or not. Many answers referred to the various clauses loan contracts can contain,
rather than concentrating on financial covenants in particular. Good answers related the
financial covenants to the specific finance needs of Caramba. As regards syndication,
answers dealt with the cost and structure of syndication, the effect of dealing with multiple
lenders and concerns as regards the transferability of loan participations. The question
required candidates to deal with these issues from the debtor’s point of view rather than
the lenders.
Question 1b)
This essay question required candidates to discuss whether or not equivalence was the
concept that should be used for enabling UK companies to make public offers in other EU
Member States fol owing the UK’s departure from the EU. The question generally produced
good answers and prompted wide-ranging discussions with the strongest candidates
comparing the concept of equivalence to the current position under the EU passporting set-
up for companies making public offers, and also reflecting on other approaches that could
be utilised to develop a wel -functioning system of international financial regulation.
1
Question 2
This question was popular. The question was in two-parts; candidates were required to
answer both parts. The first part involved a problem question; the second part involved an
essay question.
Question 2a)
This problem question concerned the proposed corporate restructurings of Carola plc and it
focused on schemes of arrangement and reductions of capital. It required candidates to
advise the board of Carola on the relevant legal procedures and to consider generally the
proposal’s legal implications. This question was general y answered to a high standard by
the candidates who attempted it. Most candidates showed a strong understanding of the
relevant legal procedures, careful y worked through the steps and supported their answer
with the relevant legal provisions, as well as also tackling the case studies, which had been
discussed during the lectures.
Question 2b)
The strongest answers to this essay question on whether share buybacks were a form of
market manipulation that should be either banned or the subject of strict constraints were
wide-ranging in their approach, not only exploring the policy issues surrounding share
buyback regulation but also including a detailed grasp of the market manipulation controls.
A few weaker answers were overly descriptive in their approach or chose to ignore the
quote and to write a more general essay.
Question 3
This question was popular and chosen by many candidates. The question was in two parts;
candidates were required to answer both parts. Part a) was a problem question; part b) was
an essay question.
Question 3a)
This problem question related to dividend payments by companies in the Himba Group and
required a discussion of the issues arising on the basis of two alternative assumptions. It was
competently handled on the whole with strong answers showing an excel ent understanding
of the main issues relating to dividend payments and the liability implications. The best
answers tackled the intricacies within the relevant case law relating to the consequences of
unlawful dividend payments (including e.g.
Paycheck Services, Rol ed Steel).
Question 3b)
This relatively straightforward essay question on whether the policy of protecting
shareholders and creditors that underpins the ban on financial assistance was out of line
with contemporary thinking about the aims and objectives of company law mainly produced
strong answers. Many candidates demonstrated a firm grasp of the case law as well as
discussing the wider literature in order to support their arguments. Weaker answers were
lighter on the specifics.
2
Question 4
This was a popular question. The question was in two parts; candidates were required to
answer both parts. Part a) was a problem question; part b) was an essay question.
Question 4a)
This problem question on Valenta plc required an examination of the relevant disclosure
provisions including whether the disclosure requirements had been in breached, and if so in
what way (e.g. had false information been disclosed by Valenta, was there a dishonest delay,
was there inside information, what liability implications were there (private, public)).
Weaker answers did not always tackle the salient disclosure requirements before exploring
s90A FSMA, or failed to comment critical y.
Question 4 b)
This essay question required candidates to discuss the forthcoming changes to the EU’s
prospectus regime and whether these struck the right balance between investor protection
and access to capital for small and medium sized enterprises (‘SMEs’). It generally prompted
a good range of answers. Some candidates demonstrated much familiarity with the wider
scholarship in this area. There was a tendency in some of the answers to only focus on the
position of SMEs, rather than also reflecting on the investor protection aspect.
Question 5
This was the most popular question. This question was in two parts; candidates were
required to answer both parts. Part a) was a problem question; part b) was an essay
question.
Question 5a)
This problem question on flotations general y prompted a range of good answers. The
strongest candidates il ustrated a sound understanding of the law and regulatory
requirements surrounding a flotation on the Main Market (e.g. including issues such as
Monza (a private company) needing to convert to become a plc, the options with respect to
the flotation (including e.g. the choice between a standard or premium listing, or admission
to the High Growth Segment of the Main Market), the connected governance and
constitutional implications for Monza, pre-emption rights and the disapplication of pre-
emption rights for non-UK shareholders, and prospectuses).
Question 5b)
This relatively straightforward essay question was designed for candidates to consider the
UK’s listing regime, the UK regulator’s reviews over the years and whether or not there had
been a watering down of standards. It general y produced a good range of answers, the
strongest backed up their arguments including with high-profile cases discussed during the
course (e.g. ENRC, Bumi etc.) as well as the FCA’s recent discussion papers with respect to
the quality of the listing regime.
3
Question 6
Question 6 was moderately popular. The large majority of the answers were strong,
focusing on the fragmentation of the ‘debt capital structure’ of companies and how this
affects the overall cost of debt finance. The last part of the statement concerned the
relationship between the cost of debt and the value of equity. Some answers overlooked
this. The issue could also be analysed through the lens of (i) the debtor, (ii) the creditors and
(ii ) overal societal welfare. Another possibility was to consider the statement against the
background of a perfect market and to contrast the changes imperfect market conditions
cause.
4
LLM, Paper 10: Corporate Governance
Examiner’s Report (2019)
Thirty LLM candidates did the Corporate Governance exam, as did eight MCL students. No
one did a thesis. The marks ranged from 120 to 149. Among the 30 LLM candidates who
wrote the exam, the average mark was 131. There were 8 first class marks (26.7%) and 22
2:1s (73.3%). There were no 2:2 or third class mark.
With the eight MCL students, the
average mark was 126. All of MCL students were awarded 2.1s.
With the Corporate Governance exam candidates were required to answer each of the four
questions set. Commentary on the performance on individual questions is set out below.
Q1
With this problem question, candidates were expected to focus on the operation of board
meetings and shareholder meetings, with particular reference to the role that the chair of the
board performs. Though the question was primarily about meetings, it was appropriate for
candidates to provide context by describing in general terms the manner in which the chair is
appointed and to discuss what case law and the UK Corporate Governance Code says about
the responsibilities of the chair.
The feature of board meetings that the question brought up most directly was the ability of
directors to exercise their managerial powers (see Model plc articles, art. 3) between board
meetings. Candidates should have focused here on board resolutions directors can pass in
writing pursuant to the articles of association (Model plc articles, art. 17) and by acting
unanimously (
Runciman). Candidates also should have indicated that directors can, in
principle, pass resolutions with a shareholder meeting on the horizon even if there are
shareholders who might object to what the board is doing (
Shield Development).
With shareholder meetings, candidates were invited to analyse the position with respect to the
scope which shareholders have to ask questions, to propose resolutions and to vote. As for
questions, s. 319A of the Companies Act 2006 (CA) governs with traded companies, which
the company here was (CA s. 360C). Of particular relevance in this context was the
discretion the chair has to preclude questions from being asked, which s. 319A(2) governs.
As for resolutions, the key issue raised was the scope for shareholders to put these forward
for a vote at a shareholder meeting; there was no scope for this to occur on the facts because
no advance notice had been provided. Finally, with shareholder voting, candidates should
have drawn attention to how voting outcomes can differ with a show of hands (Model plc
articles, art. 34) and after a poll, where voting power is determined by the number of shares
owned. The fact that under the articles of association of the company the chair had the right
to call a poll on her own initiative (Model plc articles art. 36) was particularly salient.
Candidates generally performed reasonably well with question 1. The most common fault
was failing to analyse board meetings in sufficient depth. With shareholder meetings, most
candidates canvassed the key topics, albeit in varying depth.
Q2
2
An often debated subject in the corporate governance realm is whether the “comply or
explain” approach that underpins the UK Governance Code and the Stewardship Code is
worth retaining. That is not what candidates were being asked to discuss with this essay
question. Instead, the focus is on the impact comply or explain has had on corporate
governance arrangements in the UK.
“Comply or explain” is well-known as a trademark of corporate governance in the UK.
Candidates should have explained its basic operation under the UK Corporate Governance
Code (e.g. Listing Rules paras. 9.8.6(5), (6)) and the Stewardship Code (e.g. Conduct of
Business Sourcebook, para. 2.2.3, which indicates that only asset managers are obliged to
discuss the extent to which they comply with the Code).
For candidates the most obvious way to assess comply and explain’s impact on UK corporate
governance was to canvass levels of compliance with the UK Corporate Governance Code
and the Stewardship Code. With the UK Corporate Governance Code, the available evidence
indicates that listed companies adhere to the Code’s principles and provisions most of the
time. As for the Stewardship Code, the evidence is less clear. The Financial Reporting
Council’s has divided of signatories into Tier 1 and Tier 2 based on the quality of disclosure
but has focused predominantly on checking the content of stewardship statements, not on
actual effectiveness or outcomes (Kingman Report).
In considering the impact of comply or explain, candidates ideally should have gone on to
describe key changes affecting corporate governance since the Cadbury report introduced
“comply or explain” in 1992. Key changes have included the growing importance of
“independent” directors, greater boardroom diversity, the increased prevalence of board
committees and growing emphasis on shareholder activism. Candidates who drew attention
to these important trends could then go on to discuss the extent to which the UK Corporate
Governance Code and the Stewardship Code influenced such trends.
Only a small minority of candidates assessed the extent to which comply or explain
contributed to major recent corporate governance trends. In contrast, while this question did
not expressly ask candidates to assess the pros and cons of comply or explain, most students
did this in considerable depth. In so doing, many canvassed the obvious points well. They
drew attention, for example, to possible advantages with a statutory scheme (e.g. increased
legitimacy and uniformity) and comply or explain’s potentially beneficial features (e.g. the
flexibility made available to those regulated and greater scope for amendment of provisions
since lobbying will likely be less intense than is the case with legislation).
Q3
This problem question related primarily to shareholder rights potentially exercisable on a
collective and an individual basis. Candidates were also asked to discuss sanctions directors
of financially distressed companies can potentially face. In this latter context, there should
have been analysis of wrongful trading (Insolvency Act 1986, ss. 214, 246ZA) and
disqualification on the grounds of unfitness (Company Directors Disqualification Act 1986, s.
6).
While the question focuses primarily on shareholder rights, possible breaches of director
duties should have been an important element of the answer. There are an array of potential
breaches of duty on the facts given. Crane and Shore, as employees who lobbied in favour of
lengthening the duration of employee contracts to a year, arguably were in a position where
they were not exercising independent judgment (CA s. 173). For the directors collectively
3
authorizing amendment of the employee contracts potentially would constitute breaches of
CA s. 171 (collateral purpose doctrine) and s. 172 (promotion of success of the company),
particularly if the directors’ primary motive was to thwart a possible takeover by Jennings
and thereby retain their directorships. The board’s adoption of Beeman’s policy of rapid
expansion also conceivably could be characterized as a breach of s. 172 and s. 174 (care, skill
and diligence), given the company’s future is now in doubt.
The potential breaches of directors’ duties were primarily relevant with respect to one aspect
of shareholder rights, namely the possibility of Jennings bringing a derivative action. With
directors’ duties being owed to the company (CA s. 170), Jennings could only enforce
potential breaches by seeking leave to bring a derivative suit under CA ss. 260-64. Jennings
also could contemplate alleging unfair prejudice under CA s. 994 based on abuse of
directorial power (
Saul D Harrison), serious mismanagement (
Macro Ipswich) or Beeman’s
failure to consult with Jennings. Informal agreements and understandings, however, are
unlikely to provide the foundation for a successful unfair prejudice claim where, as here, the
company involved is publicly traded (e.g.
Blue Arrow, Astec).
A derivative suit and an unfair prejudice petition can be brought by a shareholder acting
individually. There are also shareholder rights Jennings might seek to invoke where
shareholders act collectively, with due awareness that at least for now many shareholders
remain loyal to Beeman. Shareholder rights can only be exercised collectively by way of
resolutions passed at a shareholder meeting. As a 20% shareholder Jennings could
potentially rely on CA s. 303 to call a general meeting of the shareholders.
With shareholder rights exercised collectively a key distinction is between an ordinary
resolution, which can be passed by majority vote of the shareholders (CA s. 282) and a
special resolution, which must be passed by a three-quarters majority vote (CA s. 283). If
Jennings could garner sufficient support to pass special resolutions, the shareholders could
issue instructions to the board overriding the grant of managerial authority to the board
(Model plc articles, arts. 3, 4). For instance, the shareholders could instruct the board not to
extend the duration of employee contracts to a year and to dismiss Beeman. If Jennings
could only secure passage of an ordinary resolution, he likely would aim to remove Beeman
as a director (s. 168) and use the threat of removal to persuade the other directors to dismiss
Beeman as CEO and to drop the plan to rewrite the employment contracts.
With this question, candidates usually correctly distinguished between rights that
shareholders exercise individually rather than collectively. The analysis of rights
shareholders exercise individually was generally stronger, but few candidates canvassed the
full range of possible breaches of duty by JEX directors. Most candidates mentioned
wrongful trading and disqualification but the discussion often was very cursory.
Q4
With this essay question candidates were invited to discuss concerns relating to executive pay
and responses to them, including proposals made in the 2018 Labour policy paper from
which the quote was excerpted.
A logical place for candidates to begin was by describing the forms of executive pay
specifically identified, namely “shares and share options”. In doing so, a distinction should
have been drawn between “fixed” remuneration (e.g. salary) and “variable” remuneration
where entitlement depends on meeting performance targets (e.g. bonus schemes). Candidates
also might have indicated that the question focuses on executive pay despite the reference to
4
company directors in the quote. Fees payable to non-executive directors correspondingly
only needed to be mentioned briefly, if at all.
Traditionally, from a corporate governance perspective the key objective with executive pay
has been thought to be aligning pay with performance. The logic has been that linking pay
closely with performance will serve to ameliorate the agency cost problem that arises in
publicly traded companies because executives who own only a tiny percentage of the shares
in the companies they run lack a direct financial incentive to foster corporate success. The
problem the quote emphasizes is a different one. The implicit assumption is that executive
pay creates meaningful incentives to pursue a shareholder-oriented agenda and in so doing
prompts executives to run their companies in ways that benefit shareholders and themselves
at the expense of employees and other stakeholders. Candidates thus should have considered
the extent to which UK company law and the UK corporate governance is responsive to the
concerns about the link between pay and performance (or lack thereof) and assessed the
potential for executive pay arrangements to have an adverse impact on stakeholders.
Measures in the Companies Act 2006 which appear to be directed primarily toward fostering
a link between executive pay and corporate performance include those regulating disclosure
(e.g. CA s. 420, Large and Medium…Regulations 2008, sch., 8, amended in 2013 and 2018)
and providing shareholders with an annual “say on pay” (CA ss. 439, 439A). As for the UK
Corporate Governance Code, examples include provision 36, which discusses alignment with
long-term shareholder interests, and guidance on clawbacks (provision 37). As for
stakeholder oriented measures, examples would include 2018 amendments to the disclosure
regulations dealing with the ratio of executive pay to the pay of rank-and-file workers and
provisions in the UK Corporate Governance Code such as Principle R (take “wider
circumstances” into account) and provisions 33 and 40, which draw attention to the
workforce and corporate culture.
Candidates ideally should then have turned to the 2018 Labour policy paper and provided a
brief overview and critique of its proposals. Obvious proposals to discuss given the nature of
the question would have been the abolition of performance-related pay, stakeholder
participation in the setting of pay in the boardroom and integrating stakeholders into the say
on pay process.
In addressing this question, candidates typically identified effectively types of executive pay
and drew attention to key executive pay measures in the CA 2006 and the UK Corporate
Governance Code. Only the better students identified the tension that potentially exists
between the goals of linking executive pay with shareholder interests and protecting
stakeholders. Also, only a minority of candidates discussed the 2018 Labour policy paper in
any detail, which was surprising given that the quote that was the centrepiece of the question
came from this paper.
LLM PAPER 11: Players and Processes
Examiner’s Report 2019
Ten candidates took this Paper by the three-hour examination, and four
prepared dissertations. (The course was also attended by a number of students
studying for the MPhil in Criminology). This Report focuses on the formal three-
hour examination.
Overall, 40% of the candidate achieved First Class results (no starred Firsts) and
50% achieved Upper Second Class results for this Paper. There was one (high)
2.2.
No candidate attempted questions 2, 4, 5, 9 or 11. As in recent years, the most
popular questions were questions on lay magistrates, juries, followed by the
question on race and gender and then those on prosecution issues (question 3,
split into two different questions). Whilst students make predictable choices in
selecting which questions to answer, the examiners are not worried by this: the
more popular questions reflect the interests of candidates, and are not chosen
because they are deemed to be easy or predictable.
The best answers were, as ever, those which provided detailed reference to the
statistical, theoretical and research literature. We reported last year that both
breadth and depth of reading were relevant, with the strongest answers
showing critical engagement with research findings and theoretical arguments.
Some candidates still fail to put their readings in context, failing to point out, for
example, where research is very dated, or analyses law and/or practice in a
different jurisdiction. It never fails to amaze examiners that some students fail
to pick up explicit ‘cues’ in the question, still wanting to offer ‘this is all I know
on the question’ type answers. You will never get a first if you fail to engage
very closely with the precise question on the exam paper – answering last year’s
questions just won’t do!
Question 1. This question required candidates to engage with the meaning of
discretion as well as fairness. It was chosen by only one candidate on this
year’s paper.
Question 2. This question was carefully chosen to reflect the emphasis of this
year’s course. We were surprised that no-one chose it but this doubtless
reflects the popularity of other questions, rather than any particular difficulty
in this question.
There were alternatives in question 3. Both were chosen by a few students.
The first required a detailed knowledge of ‘out of court’ disposals, but answers
could be too descriptive and insufficiently analytical of decision-making
processes, with too little reference to criticisms such as invisible decision-
making and lack of accountability. The second (3b) was a rather different
question on how prosecutors understand ‘the public interest’. Here it was
important to address in some detail possible interpretations of this concept.
Question 4. No-one chose to answer this somewhat straightforward
question on the role of lawyers in the system. Again, this probably simply
reflects the popularity of other questions. But the role of the legal profession
is crucial, of course.
Question 6. This very popular question demanded a good knowledge of the
declining use of magistrates. The best answers offered detailed knowledge of
the closure of magistrates’ courts (as well as the declining number of
magistrates), and assessed this trend thoughtfully. They also made critical use
of a wide-range of sources.
Question 7. This was also very popular. The best students avoided the simple
‘all I know on the subject’ answer but really engaged with the truly difficult
question of how one assesses the ‘value’ of any criminal justice institution.
Question 8. The third most popular question. The weakest answers made
insufficient use of research and statistics to illustrate their answers, and did
not achieve a good balance between race and gender issues. The best were
characterised by up to date use of policy initiatives. For example, the Female
Offender Strategy (2018) and David Lammy’s report on race and criminal
justice (2017) and its follow-up.
Question 9. Surprisingly no-one chose this question on youth justice.
Question 10. This question was chosen by two candidates. The question
required some consideration of the meaning of ‘better’ sentencing, with
specific examples from either actual or hypothetical examples.
Question 11. Again, no student chose the question on righting wrongs in the
criminal justice system: it needed not only some knowledge, of course, but
also a normative assessment of what might be required.
26 June 2019
LLM Intellectual Property 2019
25 students took the IP exam, and the quality of the scripts was exceedingly high.
1. Only three students answered this question, but one of the answers was absolutely
superb and gained a distinction mark. The quotation sought reflection on (i) whether
IP is a coherent category and, (ii) if you agree it is not, whether – nevertheless there
are good reasons for exceptions to each right to take a similar form. The author of the
quotation argues that there are, because many of the exceptions reflect
countervailing interests. The examples offered gave the student the possibility to
consider ‘private and non-commercial use’ (patents), fair dealing for private study
(copyright), exhaustion (patents, copyright and trade mark), rights of
repair/restoration. However, it would be open to students to disagree, for example,
by highlighting how the incentives-access balance might differ between patent and
copyright, or pointing to the very different justifications for trade mark rights.
2. Eight students attempted this question and most of the answers were good, in the
high upper second bracket. Most students saw the quotation as offering an
opportunity to discuss the Supreme Court decision in
Starbucks and how far this
suggested that passing off had failed to adapt to the challenges of the internet, and
contrast this with cases such as
eBay and
Louis Vuitton, in which (it was generally
argued) the CJEU has responded with nuance to online marketplaces and keyword
advertising. The best answers engaged with some of the academic commentary and
offered more nuanced readings of the cases.
3. Only four students answered this question, with an average mark of 72% (the best
average mark). The question required discussion of whether the justification for
copyright lies in the bond between author and work, and, if so, how far this in turn
required recognition of author as “first owner” (and, if so, how this fits with exceptions
such as CDPA 11(2)). It was open to students to contest this premise, for example, by
arguing for a more utilitarian view of copyright. In so far as students agreed with such
a description of copyright, the quotation sought discussion as to whether the same
principle justified patent law and was (or ought to be) reflected in patent rules. Some
argued that while copyright law does seek to protect the natural rights of authors
other, more utilitarian, thinking explains patent law. Others argued that Patents Act s
7, s 17 (right to be named) and the provisions on remuneration also reflected similar
thinking in the patent field.
4. 10 students answered this question. The average mark was 65%. Most students
described the CJEU’s complicated jurisprudence on communication to the public,
including hyperlinking, and noted problems with that jurisprudence. Better answers
referenced academic commentary. However, the quotation puts forward a positive
proposition as to how the law should be rationalized, seemingly limiting the acts to
those of ‘uploading’ and built around an idea of exhaustion and knowledge. The best
answers examined problems with such a solution and the very best made proposals
of their own.
5. 3 students answered this question, with an average mark of 71%. Swiss form patent
claims (“use of a substance or composition X for the manufacture of a medicament for
Y”) are a complex area of patent law. Essentially, candidates were asked to discuss
two aspects of Matthew Fisher’s writings in the EIPR on Swiss-form claim patents –
whether he was correct to say that that the purpose of Swiss form claims was
‘undoubtedly noble’, and whether they gave rise to ‘intractable problems’. It is
certainly contentious whether Swiss form claims were a noble legal development. The
claim form uses convoluted drafting ostensibly to claim a method of manufacturing,
when in fact it was an open secret that the thrust of the protection was actually market
protection for using a known product for a new purpose. Ordinary novelty arguments
would suggest that product protection is no longer possible because the product is
not new. But the EPO overlooked this issue, accepting that Swiss form claims were
new methods of manufacture. This was arguably beneficial for the companies granted
such patents, but empirically it is unclear whether the protection actually benefitted
patients. Did Swiss-claims have an incentive effect that supported re-purposing
research and the expense of clinical trials? Was it a much-needed reward? Or in
contrast, did Swiss claims unhelpfully extend periods for which supra-competitive
prices could be charged – a practice sometimes known pejoratively as ‘evergreening’?
Arguably, companies have ‘gamed’ the patent system by finding new purposes and
claiming them at strategic points in time when the composition patent and first
medical use patent were about to expire. It is also arguable that Swiss claims have
discouraged generic manufacturers from making and marketing the drug for its known
(non-patented) use, in case in the complexity of the marketplace they infringe the
Swiss claim use.
In terms of intractable problems, Fisher and other commentators have argued that
allowing Swiss form claims led to legal controversies about (1) the data required to
sufficiently disclose the invention; and (2) the rules for deciding whether marketing by
another company, prescribing by a doctor or dispensing by a pharmacist a ‘skinny’
labelled drug infringes a Swiss form claim directly or indirectly. It seems beyond doubt
that they are controversial – candidates were expected to explain why - but arguably
these issues are not ‘intractable’ because a legal system can decide, for example, that
the patent applicant must supply proof at the priority date that the drug works effec-
tively as a medicine across the breadth of purpose Y (not merely proof that the drug
can be manufactured), and that infringement is determined by outward evidence of
intention (eg evidence that the generic company tried to avoid selling the drug for
purpose Y by using a skinny label) .
The question also instructed candidates to comment on two relevant legal
developments. Candidates had to comment on whether the Supreme Court’s decision
in
Warner-Lambert v Generics t/a Mylan and Actavis had resolved the issues. On this
point candidates could note that the Supreme Court dealt with the sufficiency of
disclosure point (plausible evidence of inflammatory pain is insufficient if the Swiss
claim refers to a medicament for neuropathic pain), but because it decided the patent
was invalid, its comments on infringement were technically only
obiter. Furthermore
the judges gave different reasons, and it is not entirely clear what steps in addition to
a skinny label are required when a generic company seeks to show evidence that it did
not intend that its skinny label generic product would be used for the protected use
(but in some cases this is what happened, and it was foreseeable that this might
happen notwithstanding the skinny label.)
Candidates also had to comment on whether the issues affecting Swiss form claims
also arise with the new form of new medical use claims now permitted by Art 54(5)
since the implementation of EPC 2000. Art 54(5) amends the law of novelty so that it
is possible to obtain a purpose-limited product claim for example in the form:
composition X for use in treating Y. A good answer was that many of the controversies
surrounding Swiss claims would indeed continue, albeit not all (eg the issue that a
claim to manufacture cannot extend to indirect infringement by doctors and
pharmacists will not arise). For example, the legal system will have to take a stance on
the sort of experimental data that is needed at the priority date to support the claimed
new use. A demanding threshold could undermine the patent’s incentive effect, but a
low threshold could reward early patent filers when in fact other organisations (or
none) eventually supply the important evidence of a drug’s efficacy. The legal system
will also have to take a stance on what sort of behavior and intention amounts to
infringement of a claim that technically only covers “use of a drug X
FOR illness Y”. As
with Swiss form claims, issues will arise with subjective intention, reasonably
forseeable behavior, and indirect infringement. The approach taken by the courts in
Swiss form claims is a useful indication of the future legal directions, but the decisions
are not binding.
6. 3 students answered this question, with the lowest average mark of 59%. The
quotation required consideration of how far the doctrine of equivalents (recently
embraced by the Supreme Court in
Actavis v Eli Lilly), and extended protection of trade
marks (under eg TMA, s 10(3) can be explained by reference to anti-free-riding norms.
Certainly, it is arguable that the doctrine of equivalence is designed to prevent
someone who is aware of an invention from finding a work-around that utilizes the
principle of the invention but strives not to fall within the area delineated by the
claims. Good answers, however, considered whether there are other explanations for
the doctrine that are less focused on free riding and more on property rewarding (and
incentivizing) invention, so the doctrine is less focused on unfair benefits to an
infringer than fair protection to the patentee. The role of free riding is acknowledged
as relevant to the ‘taking unfair advantage of the distinctive character or repute of the
mark’, but good answers explored its relevance to tarnishment and blurring, as well
as the role of fairness. In so far as the doctrines reflect instincts against free riding,
students were expected to consider whether these constitute a plausible justification
for protection.
7. 80% of students did this question, with an average of 65% and a top mark of 84. It was
a straightforward but long problem concerning copyright and moral rights. The
question asked students to identify issues, rather than advise a particular party. Given
the large number of issues that could be mentioned, students with greatest command
of the law and well-refined notes were able to more deftly list and briefly explain
issues. Finishing this question and leaving time for other questions on the exam paper
was crucial.
The best answers began by identifying the works that could be protected and the re-
spective right owners. The photographs of the wedding ceremony were probably orig-
inal, given the artistic use of the light and the poses (
Painer). Han-Yin is the author of
the photographs and a contractor rather than an employee. Accordingly, Han-Yin was
arguably the owner of the copyright in the photos but this depends upon the terms of
the contract between H-Y and the bride and/or groom. Ownership might have been
cover as an express term. There could also be an implied assignment (
Griggs) if assign-
ment is necessary to give business efficacy to the contract. Arguably an implied assign-
ment is unnecessary – the couple could pay for photo prints, thus securing the benefit
of having a photographer at their wedding without CR being assigned. They could also
restrict onward sharing based on legal rights in data protection law, without the courts
resorting to an implied assignment of property. On the other hand the couple could
argue that an implied assignment is necessary because the central purpose of hiring a
wedding photographer is to obtain a proprietary record of the day which the newly-
weds can share
at will, without further negotiation or payment, with friends, family
and future children and friends. The tattoo is arguably an artistic work, although this
is an interesting and contentious issue.
Harpbond suggests not. Furthermore there is
no information about the intricacy of the tattoo and whether it would meet the origi-
nality requirement. A commonplace ‘anchor’ tattoo or alphabetical characters argua-
bly would not. The author of the tattoo is most likely Shane, and R has an implied
license to use - however, more facts are needed because people like Shane do some-
times take their own designs to tattoo artists. Ramon does not seem to have created
another original work by photo-shopping a photo. The article about the wedding is a
literary work, which is authored by an in-house journalist meaning it will be owned by
the employer, namely Famous! Magazine.
Students also needed to explain various infringement issues and relevant defences.
Famous! Magazine infringes rights of reproduction and communication to the public
associated with the photos. Ramon also infringes by authorising the infringing acts
carried out by Famous!. Ramon infringes the reproduction right by editing the photos
and sending them onto Famous! (Note that an adaptation right is not infringed be-
cause it does not apply to artistic works). It is not sufficient to remove the tattoo, Ra-
mon has still taken a substantial part of the photos without authorisation. Ramon and
Famous! Magazine’s infringement could be fair dealing for the purpose of reporting
on current events, but students could challenge this in relation to the photos, and also
whether it was ‘fair ‘noting that the entire work was taken, there was no transforma-
tive use, they were in marketplace competition with the author, the work was previ-
ously unpublished, the objective was financial gain, and it was not necessary to copy
the works to report on the wedding.
News-Online infringes the reproduction right in the magazine article by creating
searchable scans. It scans the entire article which is obviously a substantial part.
However this infringement is arguably protected by s.28A CDPA since searching
articles is a lawful use (it is not prohibited by any of the author’s exclusive rights).
News-Online also creates a 12 word text extract from the article and thumbnails.
Arguably the text extract could be an infringement, but only if the 8 word extract is
sufficiently original. This does not seem to be the case with the quoted example.
Quotation might provide a defence, since the hyperlink arguably constitutes sufficient
acknowledgement. The thumbnails will infringe the photographer’s reproduction
right. Providing a hyperlink does not infringe the reproduction right because there is
no ‘public’ only individual users with bespoke search results. Furthermore, there is no
new public, as the work had already been published online on a freely accessible
website. The complexity though is that the photographer had not authorised the
publication on Famous! Magazine’s website.
Vanessa infringes the reproduction right by downloading the photograph, but she
might assert the defence of fair dealing for research and private study. Vanessa also
makes arrangements to reconstruct H-Y’s photograph for her own wedding, which
arguably takes a substantial part of the originality of the photo (
Temple Island).
Vanessa has no defence for this. Her best option would be to argue that there were
sufficient differences in the details (eg people present, dress, weather), meaning that
she took the idea rather than the expression. Assuming Shane has copyright in the
tattoo, this has been infringed by Hin-Yan, Famous! and News On-line. Ramon’s
authorisation was insufficient.
Most students also touched on moral rights issues. Ramon arguably infringes H-Y’s
integrity right by changing the photo so that it has a big smudge which could be
prejudicial to H-Y’s reputation as a special event photographer. The fact that the
magazine also attributed the photos to H-Y could be false attribution. Shane might
also claim that his right of integrity in his tattoo art has been subject to derogatory
treatment by virtue of being badly smudged in a photo. This is tendentious.
No student comprehensively addressed all of the issues mentioned above. The best
students addressed approximately 85% of the issues, and did so with impressive legal
precision and with arguments that capitalised on stated facts. Holistically, these were
outstanding answers given the time pressures.
8. One-third of the candidates attempted this question which concerned the law of
patents. There was a normal spread of answers including some excellent high first
class answers. The essence of the problem was to advise Andrea, which implicitly
entailed analysing whether Andrea’s patent granted in February 2019 for a litter tray
was valid, and if so, who was entitled to the patent (Andrea or her employer) and
whether the patent was infringed by Compet’s SMARTBOX litter tray. Andrea also
requested advice on whether a litter box which mechanically automates sifting of litter
would be patentable. First class answers stood out because they marshalled points to
answer each of these elements succinctly and systematically, as well as reciting legal
principles correctly and applying them sensibly. First class answers also demonstrated
an awareness of strong versus tendentious arguments, and potential counter
arguments. When advising a client, it is important they understand that their case
may be weak as well as its strong points.
The 2019 patent: candidates should have considered the novelty of the patent with
reference to singular pieces of prior art, for example Andrea’s oral disclosure (not
subject to a confidentiality requirement) of a
method to sift out used litter using a
circular sieves, and the pubic availability of standard litter boxes without sieve devices.
Given that the 2019 patent is a product claim for a litter box with sifter means, neither
of these singular pieces of prior art disclosed the invention per limb 1 of the
Synthon
test. It is harder for Andrea to defend the non-obviousness of the 2019 patent,
particularly claim 1 in view of the fact that sieves are widely known to sift out all sorts
of granular matter of different size and form. However, upon reciting the
Pozzoli
guidance, and given that obviousness is assessed from the perspective of a person
skilled in the art, candidates should have been able to explain why Andrea’s new litter
tray might meet the inventive step hurdle, providing a solution to the problem of dirty,
smelly sifting of litter. The secondary indicia of commercial success should also have
been mentioned, with the caveat that it is rebuttable evidence. Claim 2 is more likely
to withstand an obviousness challenge given that it teaches the particular size of
apertures that tailors the sifting tray so that it allows unused granules of cat litter to
pass through but not clumps of used litter. The facts mention that it took Andrea a
couple of weeks to realise the preferred aperture size. Competing arguments could be
made as to whether this helps or hinders the inventive step case. Andrea is not
necessarily representative of the person skilled in the art, and two weeks of
perseverance does not necessarily indicate non-obviousness. Candidates could also
have linked the fact that it took up to two weeks to figure out an effective aperture
size to a point about whether the generally stated invention in claim 1 was properly
disclosed (see eg
Mentor v Hollister).
Entitlement to the 2019 patent: Andrea learnt of the problem at work, but the
invention was realised and made at home. Accordingly the invention was not realised
in the course of employment duties and there is no realistic case for Barks-and-purrs
to assert entitlement (PA s39(1)).
Infringement by Compet with SMARTBOX: candidates should have considered
infringement of claims 1 and 2. It was important to cite the leading case on
construction and scope of patent claims,
Actavis v Eli Lilly, and to apply both the
principle of normal interpretation and the doctrine of equivalence. With regards to
claim 1, SMARTBOX was a litter box, had sifter means for granular litter, and a
permeable wall. However the container and sieve were both square (not
‘rectangular’), the sieve was inserted but inserted between two containers not
inserted snugly downwards in one of the containers as shown in the diagram, and the
permeable wall was a lattice of circles rather than ‘a grid formed from intersecting
ribs’. Thus, it would be a considerable stretch to say that claim 1, normally interpreted,
covered SMARTBOX. That said, such a reading is not impossible as seen in some court
decisions where claims have been construed broadly as a matter of purposive
interpretation (Catnic v Hill). Court decisions are somewhat unpredictable given that
much depends on the perspective the judge or judges attribute to the person skilled
in the art and what they would understand the words to mean having read the entire
patent. Applying the doctrine of equivalence, with reference to the revised protocol
questions, some candidates argued that SMART BOX does not work in the same way
as claim 1 because the user turns over the container for the sieve to work, and the
dust and smell is held within a closed container, rather than due to a gentle lifting
movement. On the other hand, one could argue that SMARTBOX works in materially
the same way because it uses a tray-sized sieve to remove clumped litter, and restricts
the distance the litter moves during the process thereby limiting smells and dust. But
if read in such a broad manner, claim 1 would cover all kinds of litter trays with sieves
which might be too generous to the inventor and too chilling for competitors I the
marketplace. Compet could also argue that with regards to the third protocol
questions, a person skilled in the art might indeed consider that the very specific
words in claim 1 (eg ‘square’ and ‘grid formed from intersecting ribs’) to have been
intentionally narrow in order to restrict the scope of claim 1; perhaps to avoid issues
with lack of enablement. Compet could make a similar argument in relation to claim
2. The apertures in SMARTBOX were circles, not squares, had touching circumferences
(not ‘intersecting ribs’ and its apertures were 3.4 mm not between 4-5mm which is
even less than 3.5mm if claim 2 stretches out to 3.5 to 5.5mm when an additional
decimal point is considered, with normal principles of rounding up. Andrea’s best
argument is to argue that her invention was the general idea of litter trays with sifting
devices. She claimed two embodiments with degrees of generality, but claims 1 and 2
also cover equivalent products. A generous reading is important when one considers
the hoops that patentees must surmount to acquire patents, and in order for patent
protection to be a fair reward.
The proposed patent - Litter box with automated sifting means: the Patents Act 1977
states that patentable inventions do not include computer programs as such. The key
question, per
Aerotel, is whether the technical contribution in the proposed invention
is no more than a computer program. Considering the ‘signposts’ for technical
contributions in the
HTC case, Andrea has a strong argument that the technical
contribution in the proposed patent is more than a computer program because the
invention is a better, labour-saving litter tray. If this argument is accepted, she will
meet the legal requirement of a patentable subject matter, but there is still a question
whether the invention is non-obvious. The programming, movement sensors and
mechanisms for lifting up and tipping a light sieve means could all amount to no more
than an application of common general knowledge drawing upon well-known
principles of science and engineering to automate manual household devices.
All things considered, Andrea has a reasonable case that the 2019 patent is valid, a
strong case that she is entitled to the patent, but a weak case that this patent is
infringed by SMARTBOX. Her proposed patent is probably patentable subject matter,
but further information about obviousness is needed.
9. 6 students answered this question which concerned registration of an EU trade mark
under Regulation 2017/1001. With respect to SANKAKKEI, meaning triangle in
Japanese, students were expected to consider the test of descriptiveness (most
obviously the test in
Windsurfing), whether ‘triangle’ would be descriptive of bags to
a consumer who know Japanese and if so whether the average EU would understand
this (referring, most obviously to
Matratzen (CJEU)). Given that Impey has no
intention of selling rucksacks, students were expected to consider whether objection
might be taken to the breadth of the specification (an issue explored in
Skykick, and
referred to the CJEU). With regard to the application, students were expected to
consider the nature of the representation and whether this related to a sign or a
multitude of signs (
Dyson,
Cadbury,
Mattel,
Glaxo); whether there was inherent or
acquired distinctiveness – in particular the standard embraced by the CA in
Kit-Kat;
and the extent to which the appearance might be said to be dictated by function
(
Lego) or confer substantial value (
Stokke and – in particular in relation to the
advertising). Good answers explored whether Impey might have gained protection
through a differently formulated application, analysis which would have helped with
the normative question as to whether EU protection of product appearance (by TM)
is adequate.
10. Around 60% of students attempted this question, and the average mark was 67%.
M fears opposition to her application from N, Q and R under Art 46(1)(a) EUTMR, Reg
2017/1001, (or perhaps later an invalidity claim under Art 60(1)(a).
In relation to N, the mark was registered in 2016 so no issue of non-use arises (under
Art 47(2). The mark as registered counts as an earlier mark: Art 8(2)(a). The issue is
whether an opposition might be successful under Art 8(1)(b) (confusing similarity). The
goods for which N’s mark was registered may be identical (if pacifiers are regarded as
“for” nursing infants), but certainly could be similar. Students were expected to apply
the
Canon factors. The marks are assessed for similarity under the
Sabel test, in par-
ticular looking at aural, visual and conceptual similarities. The font, colour and length
of the marks creates some visual similarity and common syllables suggest some aural
similarity. Conceptually, evolution is contrasted with resolution, but both suggest a
capacity for transformation. It might be said that “revolutionary” is highly inherently
distinctive for pacifiers, though sales are small. On balance it seems likely that the
average consumer would be confused. Mandy might be advised to negotiate with Na-
dia as her sales are small.
Babies bottles might be regarded as similar to ‘household containers or tableware’
which could be regarded as including eg childrens’ trainer cups. However, Q’s earlier
mark is more than 5 years old, and there has been no use across the full breadth of his
specification. Therefore the broad specification may be reviewed in any opposition
proceedings so that Q can only base objections in relation to goods for which the mark
has been used: Art 47(2). There has been use for ceramic cups and saucers, but is this
“use as a mark” or as a decoration? The use on paper plates may not be regarded as
relevant under the
Silberquelle principle. It seems likely that the rights of Q would be
treated as restricted to ceramic tableware. If so, the goods may well be regarded as
not similar to those for which M seeks registration (and given that Q does not have a
reputation) any opposition would fail.
Even if the goods for which M seeks registration are regarded as similar to ceramic
tableware, the earlier mark is a figurative mark comprising the word “evolution” but
also a monkey. M’s proposed mark has no monkey. Nevertheless, the CJEU has fre-
quently suggested that word elements are more important, and as “Evolution” seems
highly distinctive for ceramic tableware, there may be slight similarity of marks. Even
if there is some similarity of marks and slight similarity of goods, however, it is difficult
to see any likelihood of confusion.
R’s earlier mark relates to clearly non-similar goods, so the sole question is whether
opposition might be sustained under Art 8(5). R would need to demonstrate a reputa-
tion, though this can be niche (
GM v Yplon) and can be provided by reputation in a
single country (
Pago v Tirolmich). The marks are nearly identical (applying
Adidas).
There seems little potential free-riding, so the key issues seem to be whether use by
N would, without due cause, damage the distinctive character or, in particular, the
repute of the mark? Tarnishment has been recognised in relation to antagonism be-
tween goods, and this is clearly something R fears. One might hope that the courts will
establish a standard that such harm is likely to be reflected in economic behaviour
(
Intel), which seems unlikely here.
LLM 2018-19
Paper 16: Constitutional Law of the EU
There were seven questions on the paper. Candidates were required to answer any three
questions in three hours. The general standard of performance was very high: out of eight
candidates sitting the exam, three achieved First Class results and five obtained a 2.1.
Question 1
This was a very popular question, and it was generally well answered. Candidates were
expected to write an essay on the role played by the preliminary ruling procedure and by
national judges in the process of constitutionalisation of the EU legal system. Good candidates
showed their knowledge of the historical context and landmark cases, and were able to rely on
a variety of academic sources (e.g. Weiler, other writings by Alter, etc.) The best answers went
beyond a mere description of the historical process and showed a wide-ranging knowledge of
the debate, as well as clarity of analysis and argument.
Question 2
This was, again, a popular question; it was generally well answered and demonstrated a good
command of the relevant literature. The question required a brief analysis of the fraught
relationship between national constitutional courts and the Court of Justice of the EU.
Candidates reflected on the limits that several national constitutional courts have placed on the
principle of supremacy of EU law: typically, protection of fundamental rights enshrined in the
national constitution, review of
ultra vires EU acts, and, most recently, protection of the
constitutional identity of a State. Good answers provided an analysis of the impact of this case
law on the principle of supremacy of EU law, as well as a critical analysis of the current
dynamics between national and EU courts.
1
Question 3
This question invited candidates to, first, provide a brief overview of the case law on direct
effect, with a special focus on the
Mangold line of case law; and second, to investigate the
changes brought by the recent decision of the Court of Justice in
Bauer, which had the effect
of revitalising the
Mangold approach and extending it beyond the general principle of non-
discrimination. Good candidates were able to go beyond a descriptive approach to provide a
critical assessment of the Court of Justice’s approach and the questions that it raises.
Question 4
This question focused on the relationship between two basic principles within the legal system
of the EU: the supremacy of EU law and respect for fundamental rights. The question required
a critical assessment of the Court of Justice’s case law, with a special focus on the discussio n
concerning Article 53 of the Charter of Fundamental Rights and the reading given to it in
Melloni, as well as an analysis of constitutional courts’ positions on the same issue.
Question 5
This question required candidates, first, to provide a very brief overview of the changes that
have taken place since the euro area crisis and their constitutional nature; second, to discuss
the disconnect between these changes and the way Economic and Monetary Union was set up
in the EU Treaties; and third, to assess the difficult role played by national constitutional courts
in attempting to ensure the constitutionality (both from a national and EU perspective) of these
changes. Good candidates showed their knowledge of specific instances of review (concerning
the legality of the ESM, the Fiscal Compact, actions of the ECB, etc) but went beyond the
descriptive to craft an overarching, broader narrative on the role of courts in times of crisis.
Question 6
This question required candidates to engage in the analysis of different kinds of legitimacy at
EU level. Good students efficiently relied on the distinction between output, input and
‘throughput’
legitimacy to support their argument in answering either question 6(a) or 6(b).
Question 6(a) invited students to consider the democratic features of EU law-making and
gave them the opportunity to focus on the exercise of power by the EP (trilogues in
particular) and the role of national parliaments in scrutinising EU matters. Question 6(b), by
contrast, put the emphasis on the European Citizens’ initiative as a mechanism intended to
2
instil some form of ‘direct democracy’ at EU level. The best answers also discussed the role
of national referendums about key aspects of EU integration.
Question 7
This question invited candidates to consider the post-Lisbon organisation of executive
decision-making, and how far the legal system of the EU is able to control this power
effectively. Good answers critically engaged with the capacity to delegate powers to EU
agencies.
3
Paper 17 of the LLM
EU TRADE LAW
EXAMINERS’ REPORT 2019
Summary
Nine candidates sat this paper and the results were excellent. Of these nine candidates, seven
achieved overall first class marks, one gained a high 2:1 overall and another gained a low 2:1
overall. The average mark was 139 and the top mark was 145. As in previous years, the
majority of the students answered at least one question on public procurement, and some
questions were not answered at all.
Question 1 received a number of answers. It was drafted with a view to allow students to
discuss the Carillion and related crises. Surprisingly few directly answered on the Carillion case
study, although some did refer to it. Nevertheless it did elicit some wide ranging and
thoughtful answers.
Question 2(b) was a very popular question and the quality of the answers were outstandingly
good. Students fully engaged with analysing the Directive and were conscientious in
systematically going through the relevant provisions and discussing the issues raised with
concepts such as ‘linked to the subject matter of the contract’. Part (iv) was particularly well
answered.
Question 3 received a number of good answers. It required candidates to critically consider
the increase in centralised (EU) economic and budgetary surveillance, its effects upon the role
of the European executive and the ability of the CJEU to review delegated powers to agencies
effectively.
Question 4 was generally well answered too. Good answers would demonstrate a critical
understanding of the reforms that took place in the aftermath of the euro area crisis and their
consequences for national budgetary autonomy. Candidates would also consider the
connections and tensions between the single market model and the EMU.
Question 5 invited candidates to discuss the relationship between harmonisation and free
movement.
Question 5(a) was answered by one candidate. This question required candidates
to consider the competing models of harmonisation and to discuss their appropriateness for
the distribution of regulatory authority in the European Union. A good answer would critically
examine the harmonisation approach of specific directives in light of the CJEU’s case law.
Question 5(b) was not answered by any candidate. It
put the emphasis on Article 114 TFEU
and its interpretation by the CJEU for candidates to assess the relationship between minimum
harmonisation and free movement.
Question 6 invited candidates to discuss Davies’ statement in light of the CJEU’ case law on
both free movement of services and free movement of goods. It required, in particular, a
discussion of the market access approach and how far the Court engaged with non-economic
values through, e.g.
Keck, derogations and mandatory requirements. No candidate attempted
this question.
Question 7. A good number of candidates answered question 7(a) and answers were
generally very good answers.
Question 7(a) required candidates to engage with the fluid
concept of services of general economic interest and to assess the CJEU’s standard of review
in this field
. Question 7(b) was not answered by any candidate. It required candidates to
discuss the exceptions to competition and state aid regimes that are relevant to services of
general economic interest. Candidates also had the opportunity to discuss the tension
between competition and solidarity as competing explanations for market regulation.
Question 8 was answered by one candidate. This question invited candidates to compare and
contrast the approach of the CJEU in
Marks & Spencer v Halsey with other CJEU cases on
taxation, and to critically discuss the integration agenda of the CJEU in this field.
LLM Paper 20 (2019) The Law of Armed Conflict, Use of Force and Peacekeeping
The best answers addressed the question asked, provided a focussed and well-structured
argument, were analytical in their approach, demonstrated insight and independent
thinking and made good use of relevant material. Weaker answers avoided addressing
the question directly (i.e. failed to engage with the precise terms of the question, or
failed to engage with the specific claims being made), provided only a superficial
analysis of the issues, were muddled and meandering in their approach, and/or were
highly descriptive (i.e. gave an uncritical textbook-style account of the legal material
and secondary literature). Some candidates ran out of time.
SECTION A
Question 1(a) This was not a popular question. Candidates tended to talk generally about the
lawfulness of the 2017 US operation against Syria (in response to the use of chemical
weapons) but did not engage with the methodological claim being made in the
question—i.e. that the law on the use of force consists of
more than just the legal
doctrinal standards and includes “social institutions, practices, and expectations”. There
was also little consideration of whether it was “significant… that almost every state
acted as it, or almost as if, the 2017 operation was lawful”.
Question 1(b)
This was a hugely popular question. The best answers thought carefully and
intelligently about whether and when humanitarian invention is “necessary” to protect
civilians when the national government and the UN Security Council have failed “in
their responsibility to protect” (distinguishing between responsibilities), and also about
whether a right of humanitarian intervention would “undermine the foundational
principles of the international legal order” (saying something about what those
principles might be and why they matter). The very best answers also drew effectively
and critically on examples and academic commentary to support their arguments.
Weaker answers took this question as an opportunity to write highly-descriptive
accounts of the debate on humanitarian intervention, ignoring the precise terms of the
question and often getting muddled in the process.
Question 2 This was another very popular question. The best answers addressed both the
descriptive (“Article 51 of the UN Charter is restrictive”) and the normative (‘Article
51 of the UN Charter… should not be re-written or re-interpreted’) claim. They
considered when force can be used in self-defence (preventative/pre-
emptive/anticipatory self-defence, the question of imminence) and the extent to which
there is a right of self-defence against non-state actors (engaging critically with ongoing
on debates on the unwilling or unable doctrine). Weaker answers dealt only with
whether article 51 is restrictive (ignoring the normative statement and providing
textbook-style accounts of the law), and a surprising number of candidates did not
discuss self-defence against non-state actors.
Question 3
Page 1 of 3
This question was tackled by only a few candidates. The best scripts unpacked the terms
of the quotation (e.g. defining what is meant by “traditional principles”) and provided
an analytical assessment of the claims made (e.g. the extent to which the traditional
principles can be “flexibility interpreted” to allow action going beyond self-defence;
the extent to which states remain divided; whether the
Uniting Our Strengths Report recommended a “flexible and progress interpretation” of the traditional principles that
would “enable the effective protection of civilians and pro-active defence of the
mandate”). As always, the best answers offered an
argument—rather than a descriptive
account—and drew effectively on examples and commentary to support their analysis.
Weaker answers took this question as an opportunity to write down everything they
knew about the topic and struggled to develop a clear, well-structured argument, still
less one that engaged with the terms of the question.
Question 4
No one answered question 4.
Question 5
The best answers considered intervention in an internal conflict at the request of
both a
national government and an armed group, and thought critically about whether the
law—to the extent that it is clear—was really “an apology for state power”. These
answers used historic and more recent examples of state practice to good effect, and
thought carefully about what values/principles are being protected. Weaker answers
tended to be descriptive and ignored the precise terms of the question.
SECTION B
Question 6
This was a popular question. The best answers addressed a number of changes
introduced by new technologies (drones, autonomous weapons, cyber operation and
surveillance) and explored how they affected combat and what are or could be the
implications for the law. Such questions also discussed why the law could or could not
adequately respond to these technological innovations, and, to the extent that
adaptations were necessary, how could they come about. Weaker answers addressed
only parts of the question.
Question 7
Only a few candidates attempted this question. The best answers explained the
normative purchase of the law of occupation in theory and in light of the state practice
that they described and assessed. In the second part of the question the best papers
discussed whether the law applied (or should apply) to occupations by non-state actors,
giving examples such as the Islamic State.
Question 8
The few candidates that attempted this question defined asymmetric conflicts and
explained the challenges that they pose to the application of the law. In light of their
findings they discussed whether or not new principles are required, what they would be
and how they would come about. Weaker answers addressed only part of the question.
Question 9
Page 2 of 3
Some students attempted this question. The best answers addressed distinction between
combatants and non-combatants critically, while comparing different approaches of the
ICRC and the Israeli court. Such answers explained the difficulties posed by each of
the approaches and considered potential alternatives. Weaker answers addressed only
parts of the question or simply reiterated the debate without addressing it critically.
Question 10
This was a very popular question. The best answers explored the differences and
similarities between the law on international and non-international armed conflict,
explained why the distinction still exists and critically examined the usefulness of the
distinction. The best answers also discussed the influence of international human rights
law on blurring that distinction. While some answers were thoughtful and
comprehensive, several were based on prepared texts that did not address the specific
question.
Page 3 of 3
LL.M. Paper 22, Advanced Labour Law
Examiner’s Report, 2019
This exam consisted of 12 questions, each of which was in an essay form. Candidates were
required to answer three questions. Thus the exam was intended to enable candidates to
address themes of their choosing via an extended discussion.
The questions set reflected different aspects of the syllabus: the employment relationship and
the gig economy (question 1); the implications of the theory of social ontology for labour law
(question 2); the law and economics of the minimum wage (question 3); collective bargaining
and the right to strike (question 4); industrial democracy and codetermination (question 5);
empirical labour law (question 6); EU social policy and internal market law (question 7);
social aspects of EMU and the European Pillar of Social Rights (question 8); the Council of
Europe’s European Social Charter (question 9); social policy aspects of Brexit (question 10);
labour law in developing countries (question 11); discrimination law (question 12).
Seven candidates sat the exam. One was awarded a distinction, four were awarded a First,
and two were awarded a 2-1.
The distinction mark was awarded to a script in which the candidate displayed not just a very
impressive knowledge of the course material but cited numerous secondary sources going
beyond the course readings. This candidate also presented original arguments in a convincing
way. The scripts awarded First class marks contained excellent conceptual syntheses,
sophisticated arguments, and a very good knowledge of the course materials. Scripts awarded
2-1s demonstrated good knowledge but were less clearly focused on the issues raised by the
questions, and less successful in synthesising the course materials, than was the case with
more highly ranked scripts.
5 September 2019
EXAMINATION FOR THE LLM 2019
Paper 23 - THE LAW OF THE WORLD TRADE ORGANIZATION
Examiner’s Report
General Remarks
This paper had 28 candidates. 6 obtained firsts; 21 upper seconds, and 1 a lower second. In
general, performance was very good. The better candidates thought about what the questions
were actually asking, and to structure the answer around that answer, rather than taking the
questions as opportunities to discuss their subject matter in a more general sense.
Question 1
22 candidates attempted this question. The key was to note that the ‘like products’ test is based
on competition (eg Asbestos, para 99). Better papers noted that physical characteristics are
therefore at most a shortcut to a positive finding, but not a reason for a negative finding, and to
contrast this with the use of physical characteristics to smuggle in policy considerations (via
risk of use of products). There was no reason to spend much time (if any) on the ‘aims and
effects’ test.
Question 2
18 students answered this question. Good answers noted the discussion of jurisdictionality in
US – Shrimp was decided on territorial grounds, and discussed the two main ways that
extraterritorial (or, including nationality, extrajurisdictional acts can be regulated: public
morals (
EC - Seal Products) and labelling/consumer information (
US - Tuna II). The better
answers discussed the policy point embedded in the question; ie that the more you allow
countries to discriminate against others based on policy preferences (via what are now called
‘level playing field’ obligations), the more you remove regulatory competition as an element
of comparative advantage, contrary to
Belgium – Family Allowances. Discussion of Article
XX(g) in general and subsequent caselaw without recognising that the quotation is about
extrajurisdictionality was not rewarded.
Question 3
13 candidates answered this question. At a minimum it was necessary to discuss the role of
science in the SPS agreement, including the issue of the appropriate standard of panel review
of national determinations. Better answers looked also at harmonisation under Article 3, and
noted that Article 3.1 has been read down by the Appellate Body to meaninglessness. The best
answers took up the invitation posed by ‘rightly’ to say something about policy, for example,
that reliance on external bodies comes with a potential democratic deficit.
1
Question 4
7 candidates answered this question. It required knowledge of the Appellate Body’s reasoning
in the case cited, and for better marks an analysis of the problems with this reasoning. The best
answers dealt with the question whether Article XX GATT applies to SCM (spoiler, it doesn’t).
Question 5
8 candidates answered this question, which it was possible to answer appropriately in a variety
of ways. The better answers considered the value of the Appellate Body, namely, bringing
consistency and predictability to WTO law, and correcting poor panel decisions. Some answers
also discussed what might happen if the Appellate Body is suspended, such as
ad hoc arbitrations and dispute settlement under regional trade agreements. Some answers also
discussed the reasons that some WTO members are discontent with the Appellate Body.
Question 6
Only 2 candidates answered this question. The minimum for a decent mark was to know what
typical labour and environment provisions cover, and what their purpose might be. A better
idea was to address the question directly by making analogies between these provisions as
‘regulatory subsidies’ and ‘financial contribution’ subsidies rules, especially between the
specificity requirement in the former and the ‘do not derogate/waive/fail to enforce’ concept in
the latter.
Question 7
8 candidates answered this question. Candidates needed to know that under GATT, enforcing
IP rights (IPRs) at the border can not only be discriminatory but can also amount to a
quantitative restriction (
Colombia – Ports of Entry and
US – Manufacturing Clause). It was
also necessary to consider possible justifications under Article XX(d), and in particular whether
the protection of an IP right is in itself GATT consistent – an issue left open in
US – Section
337. With regard to TRIPS, candidates should have noted that Articles 51-60 TRIPS include a
range of specific standards that border enforcement measures must comply with. One might
consider whether TRIPS sets out an exhaustive
lex specialis regime on IP enforcement at the
border. Better candidates knew that the Panel in
EC – GIs held that this is generally not the
case in the TRIPS – GATT relationship, so compliance with TRIPS does not imply compliance
with GATT.
Question 8
6 candidates answered this question. For a decent mark, it was necessary to compare goods and
services as phenomena, noting in particular the absence of border measures, as such, for
services, and to compare their regulatory regimes. It was also important to compare GATT and
GATS provisions. The quality of the papers differed according to how much knowledge there
was about these provisions, and how far this depends on the different nature of the measures
being regulated. As in Question 3, the best marks addressed the policy statement implied in the
question.
2
LLM – Examiners’ report
Paper 24: International Criminal Law
Of the 26 candidates writing the exam, 10 (39%) achieved firsts; 11 (42%) were awarded a
II.i; 5 (19%) received a II.ii and there were no IIIs or fails.
The paper comprised ten questions. Of these, five were essay questions and five were
problems. Candidates were required to answer at least one question from each section.
Question 1 was attempted by many candidates. Good answers discussed the leading cases on
the issue of interpretation at the ICC and gave examples of cases where the principle of strict
interpretation was arguably violated. The better answers would also identify the role of the
Vienna Convention on the Law of Treaties within the framework of the Rome Statute and
noted how some Chambers relegated article 22(2) to a residual place, applying it only after
exhausting the principle of interpretation laid down in article 31 VCLT. Some candidates
overlooked the fact that article 22(2) of the Rome Statute only applies to the definition of the
crimes contained in the Statute and gave (irrelevant) examples from procedural decisions to
illustrate the truth or falsity of the factual claim contained in the quote.
Question 2 A fair number of candidates attempted this question. Good answers identified the
central claim of the quote, i.e. that every military commander must cause the commission of
the crime(s) by their subordinates and focus their response accordingly. However, quite a few
candidates provided a seemingly prepared theoretical discussion of superior responsibility
and tried to adapt this to respond to the question. This led to a lot of information being
provided that was not strictly relevant to the question.
Question 3 Nobody attempted this question.
Question 4 was a very popular question. First-class answers took apart the quote: the implied
difference between the law on complementarity and the practice of complementarity or
between complementarity as an idea and its realisation; the fact that ‘The Hague’ can be a
reference for various courts international criminal tribunals, but that complementarity is
relevant to only one and the fact that the quote made a bold statement about
all cases being
admissible in The Hague, an absolute claim that can almost always be refuted. First-class
answers would then go on analysing the veracity of the quote on all these points, illustrating
it with relevant case-law. Many essays provided ‘an all one can know about
complementarity’ answer, without showing how the discussion related to the quote. Such
answers were not awarded firsts.
Question 5 had only one courageous taker. The quote solicited engagement with the question
whether and how the Rome Statute speaks to ‘peacemakers’ (which required definition in the
answer) directly or affected their work more indirectly.
Question 6 A sizeable proportion of candidates took this question. A number of those
seemed to struggle with understanding the question, which was focused on the contextual
elements of crimes against humanity. Good answers focused on the central issue, i.e. whether
1
it is possible to say that someone is targeting a civilian population by using weapons that
could arguably be described as indiscriminate, when the aim of their use is specifically to
neutralise combatants. Few candidates engaged critically with the leading case law, but those
who did, identified the weakness in the Court’s reasoning.
Question 7 was relatively popular and most candidates who answered it were able to identify
the main issues and discussed them competently. Good answers would identify and engage
with the question whether it is possible to qualify an attack that is clearly aimed at destroying
a military objective as an attack against a civilian population. The better answers also
discussed the question as to whether the (dis)proportionality of civilian losses should be
assessed against the value of the military objective being targeted as such, or against the
significance of this target to the success of the overall military operation. They would also
address the question whether the fact that Captain Mav was not aware of the value of the
bridge in light of the military offensive as a whole was determinative in terms of whether he
could be charged under article 8(2)(b)(iv). Some candidates went beyond the scope of the
question and also discussed other issues, such as which form of criminal responsibility to
charge Captain Mav under. Some also discussed the question as to whether Captain Mav
could invoke the defence of superior orders.
Question 8 A limited number of candidates chose this question. Some seem to have
misunderstood it and did not answer the central underlying legal question, i.e. to what extent
indirect co-perpetration and criminal responsibility under article 25(3)(d) are structurally
different. This critical issue was sometimes sidestepped with a theoretical discussion of the
appropriateness of the adoption of the control theory by the ICC. This reeked of prepared
answers. Few engaged with the facts in this regard, even though it was not possible to answer
the procedural question without doing so.
Question 9 was chosen by a fairly large proportion of students. Good answers did a good job
in distinguishing the different legal issues arising from the fact pattern. Some systematically
went over all the elements of article 28 and discussed the facts for each of them separately.
Most students identified one or two of the challenges raised by the fact pattern, but few
discussed all of them in sufficient detail. A few students failed to distinguish clearly enough
between knowledge and should have known/disregarded information standards. Some failed
to engage with the question as to whether causality is legally required and, if so, how this
applied to the fact-pattern. Some candidates also addressed the question of which
state/organisation had jurisdiction over the crimes committed on the territory of State Beta,
but few engaged with the issue as to what a commander is required to do if there is no forum
available where her subordinates can expect to receive a meaningful and fair trial.
Question 10 was popular, possibly because previous exams had featured questions on the
same topic. But there was a clear difference between those who wrote a seemingly prepared
answer on the ICC immunity question, and those that carefully read the question and applied
their knowledge to that question. Few takers actually followed the instruction “write a first
draft [Advisory Opinion] for your judge”, instead writing a general essay, as if this question
featured in section A of the exam. Strong answers demonstrated consideration of how the
2
International Court of Justice, as opposed to the ICC, might go about answering this question
and integrated general public international law with a discussion of the various arguments
advanced by ICC Chambers as to why states parties could not invoke respect for immunities
ratione personae as a reason not to cooperate with the Court.
3
LLM Paper 25 (2019) International Human Rights Law
The best answers addressed the question asked, provided a detailed, focussed and
structured argument, were analytical in their approach, demonstrated insight and
independent thinking and made good use of legal material and academic commentary.
Weaker answers tended to avoid answering the question directly (i.e. failing to engage
with the precise terms of the question, often as if following a prepared text), provided
only a superficial analysis of the issues, were muddled in their argument, and/or were
highly descriptive (i.e. gave an uncritical textbook-style account of the legal material
and secondary literature). Some candidates ran out of time.
Question 1 Several candidates attempted this question which raised two questions with respect to
the right to life: when is killing by security forces compatible with or a violation of the
right to life; and is the death penalty compatible with the right to life. The first prong
required assessment of the McCann case the absolute necessity test of article 2(2)
ECHR and the separate obligations that this article imposes. The question of entitlement
to damages was addressed by relatively few candidates. The discussion of the death
penalty required an analysis of the evolution of ECtHR jurisprudence concerning the
death penalty, as also whether treaty amendment through subsequent practice binds
states that have not ratified the relevant protocols to the ECHR.
Question 2 This was another quite popular question. The best answers addressed the absolute right
to be free from torture as well as the possibly qualified nature of the various obligations
that are derived from the prohibition of torture, including the duty to investigate, to
prosecute, to punish, the duty of non-refoulement, and the duty not to use evidence
obtained through torture. The best answers discussed these duties using cases to
illustrate their arguments.
Question 3 Several candidates attempted this question. It required candidates to address critically
the tendency to identify civil and political rights with positive obligations and socio-
economic rights with negative obligations aspects. Good answers responded by
illustrating the positive and negative aspects of both types of rights using several
examples.
Question 4
This was a popular question. The question invited candidates to discuss the protections
that the right to housing offers under the international and national legal regimes that
were discussed in class. Candidates were also expected to discuss the fact that in some
instances it strategically works better to raise housing issues under other rights (eg life,
freedom from inhuman treatment, discrimination etc) because those rights often come
with more guarantees.
Question 5
This quite popular question invited candidates to discuss the ambit of the duty to
protect among the duties to respect, protect and fulfil, by reference to cases (incl.
Osman, A v UK, opinions of human rights treaty bodies, Inter-American
jurisprudence). The duty is not absolute, in that the state is not responsible for all
lapses by an individual or corporation; but it is responsible if it fails a due diligence
threshold. States are also responsible for failing to investigate and punish harm. In
certain circumstances, acts of non-state actors will be attributable to states – here the
candidates were expected to refer to the Articles on State Responsibility and relevant
cases.
Question 6
A good number of candidates attempted this question, which invited candidate to reflect
on theories about what human rights are or should be (does the generally accepted class
of rights conform to a thin theory; or the expression of theories of the good life, or a
theory deferential to cultural and religious identities). The first sentence may be read as
asserting a practical limit or a normative position. Should what human rights
are be
determined by reference to the question of what will make them most effective?
Much might be said on these points – e.g. by reference to instruments offering lists of
rights; is it correct to say that they command the assent they do because of their
minimal content? Do the often invoked ‘foundational values’ of equality, fraternity
and dignity, make it difficult to accept only a negative liberty account? Or, the
response may be framed by reference to the practicalities – is human rights overreach
fatal to their normative authority and universal application; is it better for human
rights to function just as minimal constraints? – negative liberty, perhaps specification
of basic needs etc. without trying to satisfy higher thresholds. Or, in the political
conception of human rights, what is it that draws attention? Does a minimal
conception beget the kind of popular mobilization that universal application depends
upon?
The best answers included some discussion of one or more of the above points, also
with some discussion of the relationship between universal human rights and
particular and religious conceptions, but it was fine not to centre this.
Question 7
A rather popular question. It required delving into the various accounts of the history
of human rights that embrace distinctive conceptions, noting how each of them is
blinkered – neglectful of other critiques but also of other struggles for the ideas
expressed as human rights. The most effective essays answered this by building this
analysis around Moyn as revising earlier lineal histories, but himself offering a fairly
located, linear account as a universal one. Equally good were essays that showed how
Martinez’s account introduces complexity – presence of non-state actors, what we see
as a human rights institutions etc., but also reinforces tendencies critiqued in the post-
colonial, Marxist and indeed feminist engagements with human rights. Again, there
was no one way of answering the question and candidates were rewarded for
thoughtful and well-illustrated engagement with historical and critical literatures on
human rights.
Question 8
Surprisingly, no one attempted this fairly easy problem question.
Question 9
This was a very popular question. The question required a descriptive, institutional and
normative assessment of the margin of appreciation doctrine of the ECtHR. Good
essays addressed the origins of the doctrine, its problematic extension to the interplay
between minority and majority within democratic systems, paying special attention to
ethnic minorities. They also considered the expectations of state parties, as recently
expressed in the Brighton Declaration and the new Protocol.
Question 10
Several candidates attempted this question, which required candidates to explore the
spatial scope of the ICCPR in light of the text of the Covenant and its subsequent
interpretation, comparing it to the ECHR and its interpretation by the ECtHR, as well
as to the recent position of the Inter-American court. The essays were expected to assess
whether the new General Comment reflects existing expectations or whether the
Comment further expands the spatial scope of the ICCPR (in general or only with
respect to the right to life), and if so, to critically engage with that purported extension.
EXAMINATION FOR THE LLM 2018
Paper 29
INTERNATIONAL INVESTMENT LAW
Examiner’s Report
General Remarks:
In total, 35 candidates sat the paper. 12 received firsts, 20 upper seconds and 3 lower seconds.
Specific Questions:
Question 1
This question was attempted by 3 candidates. This is surprising, as one might have expected it
to be attempted by candidates no matter their level of knowledge. At its most basic, the question
required an answer covering the three listed sources of investment rights; at a more advanced
level, it required discussion of other sources, in particular customary international law. An ideal
answer would move beyond a bare description of the sources and also discuss how they are
treated in investment arbitration. Questions of jurisdiction and applicable law would be
relevant. The quality of answers varied.
Question 2
This question was attempted by 31 candidates. All recognised that the question concerned the
proper scope of most favoured nation obligations in investment treaties. There were many
competent answers covering the caselaw on this point, namely
Maffezini and
Plama (and their
ilk). Almost all of these considered in this light the sentence on dispute settlement in the
quotation. For a better result, however, it was also necessary also to look at the second sentence,
on substantive obligations in treaty law. This was not done by all candidates. Of those that did,
some gave thoughtful answers on what this cut down definition of ‘treatment’ might mean for
attracting investment, and how this might relate to the purpose of investment law.
Question 3
This question was attempted by 16 candidates. It invited candidates to engage in a historical
analysis of investment protections, and to compare this with modern investment law. Several
answers remained at a rather basic structural level of analysis. More sophisticated answers
engaged with the two poles in a more sophisticated manner, some addressing commonalities
in the two approaches to investment protection. This was not a question where there was any
right answer however. Knowledge and creative writing were rewarded.
Question 4
This question was attempted by 1 candidate. It was a problem question that invited a general
discussion of the provisions in the model treaty and how appropriate these are for a country
with Ilyria’s development profile. It also required a discussion of the treatment of portfolio
1
investment in international investment law, and the implications of removing protection from
such forms of investment. It would have been desirable to discuss the fact that the large
investment in the problem question was already made, and therefore it would need to have been
explained how the failure to include protection in future investment treaties could impact on
this investment.
Question 5
This question was attempted by 21 candidates. It was a problem question that covered much of
the substantive material of the course. Candidates needed to discuss the fair and equitable
treatment obligation (some noted divided jurisprudence on transparency), uncompensated
expropriation (with discussion of how to assess market value), as well as the listed exceptions,
(including discussion of proportionality). Almost all candidates performed competently, which
was no surprise, as the elements of the answer were embedded in some detail in the question.
Better marks were awarded to those who were able to flesh out their knowledge with reference
to relevant jurisprudence, and the best marks to those who knew of and could manage diverging
lines of jurisprudence.
Question 6
This question was attempted by 31 candidates. All candidates discussed the relevance of the
police powers doctrine to the obligation not to expropriate without due compensation. What
the question required, though, was a consideration of other ways in which states are able to
exercise regulatory autonomy. This required, in particular, a discussion of the strictures
imposed on states by the fair and equitable treatment standard. It also required a discussion of
the recent trend of investment treaties including general exceptions clauses. Students to were
abreast of these issues were duly rewarded.
Question 7
This question was attempted by 6 candidates. It involved a discussion of the theory of
derivative rights versus that of individual rights in investment arbitration. Most candidates were
aware of the caselaw on the issue. The better candidates were able to tease out the implications
of choosing between the two theories, for example, in the context of termination of treaties.
Question 8
This question was attempted by 17 candidates. It invited candidates to engage in a discussion
of the
Salini criteria for defining the concept of an investment, and in particular, the criterion
that an investment should contribute to the economic development of the state. Some
candidates spent most of their essays on the question whether it was appropriate for Article 25
of the ICSID Convention to place any limits on the definitions of investment in investment
treaties. This was not an especially good idea, unless linked to the question, which was rare.
For properly good marks, it was necessary to consider the implications of
Salini in the
conceptual context referred to in the quotation. This was done by some, with good results.
2
Question 9
This question was attempted by 3 candidates. It required an understanding of how municipal
law is treated as applicable law (or as fact) in investment arbitrations. Best marks were awarded
to the answer that focused on what tribunals have to do as a matter of theory, not just what they
might do in practice.
3
Jurisprudence: Paper 30
Examiners’ Report
The LLM Jurisprudence course is devoted to covering the key authors in the field, encouraging
students to undertake a deep study of the original texts. The paper is typically examined on the
basis of a series of essay questions which are designed to give candidates the opportunity to display
both their overall grasp of central jurisprudential debates and their knowledge of particular aspects
of the course by developing an extended argument on selected topics. Candidates this year were
offered an especially wide array of options, being required to answer only
three questions from a
choice of ten.
The questions covered the several core themes in jurisprudence: the relationship between law and
morality, the role of discretion in law and substantive versus procedural justice and so on. The
questions were also balanced between options on the specific theories of Hart, Dworkin, Fuller
and Finnis—as well as those on the relationships between pairs of theorists covered in the course.
Question 8 provided the opportunity to think outside the box—and connect elements of the
jurisprudence course to other subject areas and probe the relationship between theory and empirics,
and it was gratifying to see many candidates rise to the challenge. Question 10 also explicitly
provided an opportunity to make an argument across the theorists that were studied throughout
the year.
The general standard of the scripts was good, and fairly evenly spread across topics. 33.33% of
candidates achieved Firsts, with one script being awarded a Distinction. The essays that fared best
displayed a deep understanding of the core texts, a capacity to make connections between the
different theorists covered in the course and the ability to adopt and defend a philosophical
position. The most notable scripts combined mastery of the material with sophisticated original
arguments of an impressive standard.
July 2019
EXAMINER’S REPORT, 2019
LLM PAPER 31
TOPICS IN LEGAL & POLITICAL PHILOSOPHY
Eighteen students were enrolled for the examination in this course, though one of them failed
to appear for the examination (or for any of his or her other examinations). Among the
seventeen students who took the examination, four attained Firsts, and thirteen attained 2:1
marks.
Question 1 was answered by three people, who generally handled it well.
Question 2 was answered by fourteen people. Nobody sought to defend the Will Theory.
Question 3 was answered by six people. There was one strange answer, but the other answers
were generally good.
Question 4 was the most popular question, as it was answered ─ generally very adroitly ─ by
fifteen people. Everyone recognized that the question required him or her to address both the
matter of the status of beings as potential right-holders and the matter of delimiting the range
of actual right-holders.
Question 5 was answered by thirteen people. Nobody sought to defend Simmonds.
Question 6 was answered by two people. One answer was generally impressive, whereas the
other was lackluster. Neither answer reflected more than fleetingly on the fact that the point
in the question about hollowness could be turned around to apply to claim-rights without
liberties or immunities as much as to liberties or immunities without claim-rights.
Question 7 was answered by thirteen people. Most of the answers were quite boring, as
people treated the question as an opportunity to regurgitate everything that they had
memorized about the differences between physical freedom and deontic freedom.
Question 8 was answered by two people, both of whom handled it well.
June 2019
LLM examiner’s report – Paper 33 – Comparative Family Law and Policy
This year’s examination was sat by 19 candidates, with a further three candidates for the paper
being assessed by thesis. This was an unusually high – and welcome – number of candidates, and so
a full question-by-question report has been prepared. Candidates for future years’ exams are
strongly advised to consult past years’ reports for valuable generic advice about how to tackle
examinations for this paper.
There were several very strong performances on the exam this year, and indeed the quality of scripts
generally was pleasing. Candidates had clearly had taken on board the advice given during the year
in response to their formative assignments and in workshop sessions about how to approach the
course materials and the types of question posed, but – crucially – also offered thoughtful, individual
responses reflecting real intellectual engagement with the issues. Nine Firsts, seven 2.1s and two
2.2s were awarded.
Qu 1
This was the only question on the paper to attract no answers. It required attention to jurisdictions’
approach to multiple shared parenting (note: that is not the same as multiple legal
parents),
specifically in relation to the allocation of what English law refers to as “parental responsibility”, but
is commonly elsewhere referred to as “custody” (as distinct from the more practical, though often
related, question of with whom the child is to live). The quotation in the question took a rather
polemical position, ruling out the proposition entirely as irrational and implicitly contrary to some
natural law or even religious position. While conventionally a child might have two parents and be
parented by two people, increasingly jurisdictions do recognise the possibility of more than two
persons holding custody/PR for a child – the stand-out jurisdictions here are England & Wales and
Finland, with yet other jurisdictions (notably California, parts of Canada) allowing for the possibility
of more than two
legal parents, all of whom would have custody. And even some jurisdictions that
do not allow for more than two persons to have full custody recognise lesser positions (so-called
“minor custody”) for additional persons, as in Scotland and Germany. Candidates could have
approached this question and this material in various ways, but perhaps particularly by exploring the
flexibility and utility arising from being able to share parental responsibility beyond the conventional
dyad, in a way that need not challenge the more fundamental (and in most jurisdictions firmly
entrenched) view that legal parenthood can only be held by up to two persons.
Qu 2
This question dealt with the issue of parental decision-making on behalf of their minor children,
based on the premise that parents hold not rights but rather responsibilities in relation to their
children (cf Art 5 UNCRC expressly acknowledging that they have both and case law interpretation of
Art 8 ECHR). This called for some close attention to what these “rights” and responsibilities” might
be in this context, and what the relationship between those two concepts might be here. And then
for exploration of the basis on which parental decision-making should proceed (substituted
judgement of what the child might be expected to want – determined how?, or some other basis? Cf
Art 3 UNCRC and balancing under Art 8 ECHR) and in what cases (in particular, what if the child
claims to be competent to take the particular decision? Cf Art 5 and 12 UNCRC). This topic could be
examined in various substantive contexts, particularly but not exclusively medical cases. The US and
England & Wales were the most obvious comparator jurisdictions, given the former’s heavy
emphasis on parental rights, compared with English law’s affording paramountcy to the child’s best
interests (with all the difficulties of interpretation and application that entails). Candidates who
simply wrote an essay about medical decision-making that did not engage with the key
concepts/assertions in the quotation could not be highly rewarded, having failed to address the
specifics of the question.
Qu 3
This question could be addressed from various angles, not all of which needed to be canvassed.
Obvious technological advances to address included assisted reproduction, both directly for
individuals/couples and via gestational surrogacy arrangements. Obvious societal advances to
consider included the increased acceptance in many jurisdictions of parenting by same-sex couples,
trans persons, and a range of social parents – including step-parents and multi-parenting
arrangements involving more than two parental figures. These extra-legal developments needed to
be appraised against the “traditional” notion – based on two, opposite-sex parents both biologically
related to the child, supported by two core common law presumptions about maternity and
paternity. Answers would then explore the various ways – and the extent to which – different
jurisdictions had or had not accommodated the changes in family formation identified above, and
how best such accommodation could or should be effected.
Qu 4
This was the least popular of the questions that were attempted. The quotation offered a lot of
scope for “unpacking”, both at the descriptive and the normative level – is family law (still)
dominated by marriage (in what sense?), is
succession law not so dominated (if so, how?), in what
sense (if any) does one owe “obligations” towards “kin” (who are they?) on death – or before death,
come to that?, and is it only kin (however defined) that one might wish to protect? Answers needed
to explore both the scope of testamentary freedom in this area and the dispositions effected in case
of intestacy, with obvious contrasts to be drawn between common law and civil law jurisdictions,
though jurisdictions’ responses to this issue do not map neatly on that axis.
Qu 5
This question, which attracted a decent number of responses, was deliberately drafted in a way that
approached the topic of a divorce law from a perspective wholly at odds with the inclinations of the
course teachers (retailers of “received wisdom”??), in order to encourage some fresh thinking on the
question of divorce law and what “individual freedom” and the demands of “liberal principles” in
this arena might be understood to entail. The best answers gave some time in their answer to
making an honest attempt to get into the mindset of the propounder of the quotation (whose
position might align closely with that taken by covenant marriage jurisdictions), rather than simply
dismissing it out of hand in pursuit of the “received wisdom” line of argument.
Qu 6
This question again required candidates to consider a topic from a slightly novel perspective,
foregrounding parenthood in the context of financial remedies on divorce. The quotation having
separately identified property distribution, maintenance and compensation, it had been intended
that candidates consider whether the rationale(s) for any financial intervention on divorce might
differ as between those three pillars/principles, according to whether the parties had had children.
Certainly the question demanded an exploration of what the underlying rationale(s) and function(s)
of financial remedies on divorce might be (issues on which there is a wealth of academic literature as
well as primary legal material), with a wide range of comparator jurisdictions available to illustrate
candidates’ arguments.
Qu 7
This question again perhaps struck a rather polemical tone (with its use of the word “idiotic”), but
there was plenty of nuance in the quotation to get to grips with: what makes someone “free” for
these purposes, and how might the law test that; are we only concerned with the point of “entry” –
i.e. even if we will let someone enter into a contract that looks ill-advised, does that necessarily
mean that we will hold them to it later; what might be said to make a contractual obligation in the
marital context “idiotic”, and what if something looked sensible enough at the point of entry became
“idiotic” over time as circumstances changed? And, as the backdrop to all this, are marital contracts,
as a class, different from all other contracts, as a class – if so, why and in what respects? With a
number of jurisdictions to draw on, taking various approaches to these questions depending on the
balance they strike between autonomy and protection in the marital sphere, candidates had plenty
of material to draw on.
Qu 8
This question invited candidates to explore a fundamental question about the structure of family law
and its underlying core purpose: what is that core purpose (is there one – and only one?), and does
it demand that relationships be formalised before they can (and should) be recognised for legal
purposes, particularly in order to access financial remedies on relationship breakdown? The stance
of the quotation in the question was functionalist rather than formalist: responsive to, and
protective of the consequences of, parties’ behaviours rather than responsive only to autonomous
choices expressed in a prescribed manner. But even if (or perhaps
particularly if) one takes a
functionalist approach, that might not necessarily mean
assimilating the position of non-formalised
relationships with formalised ones and would almost certainly require provision of some sort of opt-
out if a default (rather than opt-in) approach were to be adopted. Candidates could take this
question in various directions, again with a diverse palette of comparative examples on which to
draw.
The next three questions were the run-away winners of the popularity contest, each attracting
around 10+ answers.
Qu 9
This appeared to be a relatively straightforward question about gender, but still needed careful
unpacking, as regards: the notion of gender as a “social” phenomenon; the meaning and relevance
of “choice” here – and whose choice is being exercised, under what constraints (after all, to the
extent that it is a
social construct – and so affected heavily by the interactions between individuals,
can it (solely) be a matter of
individual choice?); and what the law’s response, if any, should be. Even
assuming that the law should “accommodate” gender more flexibly than it has done traditionally
(whether based on “choice” or otherwise), further questions then naturally arise about precisely
how that might best be done. Note also the (perhaps) implicit assumption of the quotation that
gender should remain a legally relevant concept.
Qu 10
This quotation contained two linked statements: first (more broadly), about “abuse” in relation to
surrogacy (abuse of what/whom? by breach of legal requirements?) and the state’s ability (de jure
or de facto?) to do anything other than accept a
fait accompli and so recognise the commissioning
parents as legal parents,
despite whatever abuse has occurred; and then, specifically, in relation to
commercial surrogacy, whether the control of such arrangements needed to operate early in the life
of the transaction, rather than retrospectively at the point when the matter comes to court – by
which time the
fait accompli problem will have arisen. Is the state effectively powerless to do
anything other than to accept that surrogacy, commercial and otherwise, will occur, or does it have
any realistic capacity to control (if not entirely prohibit) any aspects of such arrangements (assuming
that the state indeed
wants to be able to control them), and if so how “control”, in what forum, and
at what stage?
Qu 11
This last and most popular question invited candidates to consider the various tools (legal and
possibly non-legal) for tackling domestic abuse, in the context of a claim that the criminal approach
was the “most appropriate” one, as evidenced by the recent extension around the globe of the
ambit of criminal law/justice into more typically “civil law” actions, including the criminalisation of
breach of orders made by the civil courts. Candidates could also address issues such as police-led
emergency barring orders, now available in several jurisdictions, as well as longer-standing
approaches such as pro-arrest and no-drop prosecution policies. As to whether any of this is the
right – never mind the “most appropriate” – course of action would depend, inter alia, on one’s
evaluation of the proper role of the state in relation to domestic abuse and the nature and weight to
be attached to victims’ rights and interests in such cases, questions in relation to which candidates
had a wealth of secondary literature to draw, the best answers developing sophisticated, nuanced
arguments.
20 June 2019
LLM Paper 34 (2019) International Law on Global Governance
The best answers addressed the question asked, provided a detailed, focussed and
structured argument, were analytical in their approach, demonstrated insight and
independent thinking and made good and sometimes innovative use of legal material
and academic commentary. Weaker answers tended to avoid answering the question
directly (i.e. failing to engage with the precise terms of the question, often as if
following a prepared text), provided only a superficial analysis of the issues, were
muddled in their argument, and/or were highly descriptive (i.e. gave an uncritical
textbook-style account of the legal material and secondary literature). Several
candidates reproduced prepared essays on functionalism, a theory that was relevant to
a few questions in the paper but not the subject-matter of any of them. In a few cases
candidates ran out of time.
Question 1 This was a popular question, which around 45% of the candidates attempted. While
most answers were competent, very few truly excelled. Most failed to engage with the
quote, which referred to the specific discretion that the Security Council enjoys under
Article 39 of the UN Charter, and instead provided a generic analysis of “review of
Security Council decisions”. Those which focused on the issue, discussing limits to the
power of the Security Council with reference to the case law and academic
commentary, were rewarded. Mechanisms for indirect review of Security Council
decisions were only marginally relevant to the question, and their inclusion in the
analysis had to be carefully justified.
Question 2 Discuss the rise of domestic court review of IO (including the ways in which they
exercise direct or indirect review), and examine whether they constitute “the most
effective” check on “the growing assertiveness” of IOs. Using examples from caselaw,
deal with both the reason (for the assertiveness), and the availability of alternatives, as
well as possible negative aspects.
Question 3 What are the different approaches for member states’ obligations for acts and omissions
of IOs? A critical assessment of contemporary law, caselaw and academic writing.
Some responses produced essays on functionalism.
Question 4
This question addresses the main argument for immunities to international
organisations. Responding to the question requires a critical assessment of this
justification for immunity (the extent to which unilateral action might undermine the
functioning, and primarily the impartiality, of the IO), and assessing trends in caselaw
(ECtHR, US Supreme Court) seeking ways to mitigate the adverse consequences.
Question 5
What are the consequences of independent personality and how they promote the
functionality of the IO? Is it “indispensable” for meeting the goals of IOs? Should it apply
to all IOs? Are there limits to such teleological reasoning? This was a subtle and
challenging question that invited reflection on the status of international organizations
under international law and the conditions for acquisition of international legal
personality. Several responses fell short by producing generic essays on functionalism
or focusing on issues pertaining to the interpretation of constituent instruments.
Question 6
A question about the assumptions of Global Administrative Law: the promise and
limits, providing examples.
Question 7
Very few candidates attempted this question, which asked about the basis (or bases) for
applying general international law to international organizations and, in particular,
whether the rules that apply to States (e.g. the duty of reparation) must be extended to
them as well.
Question 8
Very few candidates attempted this question concerning “constitutional interpretation”
in the law of international organizations, in particular the role of subsequent
institutional practice. The quote invited reflection on the use of institutional practice in
the case law of the ICJ, and whether that use is justified or justifiable given the character
of constituent instruments.
Question 9
In this question candidates were invited to explore the ways in which IOs overcome
collective action problems in one area. Answers were expected to describe the theory
and apply it in practice. Weaker answers did not explain how IOs overcome collective
action problems or focused on more than one area and offering less rigorous responses.
A few answers simply described the functions of some IOs (e.g., what the UN SC does
to maintain peace and security).
Examination for the LLM Degree
Paper 35: History of English Civil and Criminal Law
Examiner’s Report 2019
There were seven candidates for this paper this year, of whom one obtained a
first class, four an upper second class, and two a lower second class in this
paper.The paper gave candidates a free choice of three questions from a total
of ten.
1. General
Candidates are reminded, as always, of the importance of responding precisely
to the question asked. Where questions contain quotations, particular thought
should be given to all aspects of the quotation, including matters which may
have been left unstated or which may have been assumed, and the answer
should be clearly directed to the terms of the quotation. Cases should be
included where relevant, with appropriate detail. It is very important to provide
a clear sense of the chronology of developments under discussion. This need
not necessarily mean the provision of precise dates (and some developments
cannot be precisely dated), but it does require at least an indication of which
part of which century. The answers of candidates who showed that they had
thought about the material under consideration, and had read and understood
relevant journal and monograph literature beyond the textbooks, were marked
more highly than answers which went little beyond the accounts provided in
textbooks or seminars, as were answers which showed a capacity to draw
relevant connections with parts of the syllabus other than those which were the
main focus of a particular question.
2. Individual questions
1.
This question concerned the meaning of ‘seisin’ in the period before
1290 (the date of the Statute
Quia Emptores Terrarum). A good answer would
have situated Maitland’s statement that ‘Seisin is possession’ within the broader
context of Maitland’s approach to the early history of post-Conquest land
holding, addressing not only Maitland’s understanding of ‘seisin’, but also his
arguments concerning the question of ownership of land in the period, the
relationship between concepts of ‘seisin’ and ‘right’, and the meaning and
purpose of the early real actions. A good answer would have considered
possible critiques of Maitland’s approach, including, importantly, the work of
Milsom, addressing the contrasting models of land holding adopted by the two
scholars, and, in turn, considering later critiques of Milsom’s arguments, notably
(though not solely) Milsom’s denial of Roman law influence on the early
common law of land holding. While being sensitive to the limitations of the
evidence, a good answer would have sought not only to set out the arguments,
but to provide assessment of their merits and at least a tentative conclusion. A
good answer would also have shown awareness of the possibility that the
meaning of ‘seisin’ was not stable, either chronologically within the period, or
between contemporaries.
2.
This question concerned the purposes and effects of the Statute of Uses
1536 in relation to the execution of uses. A good answer would have sought to
explain the basis upon which Maitland might have come to his assessment of
the statute, noting in particular that the fact that uses upon uses were held not
to be executed, but were enforceable in Chancery as trusts, might seem to
indicate that futility in that the executing effect of the statute could be avoided
simply by adding a few words into a conveyance and thereby creating a trust in
the form of a use upon a use which largely replicated pre-statute uses. In
considering the extent to which such a view of the statute was justified, a good
answer would have noted that alongside trusts in the form of a use upon a use,
other types of uses were also unexecuted, in particular uses of property other
than freehold land, and uses where the feoffees (or trustees) had active duties.
A good answer would have sought to assess the success of otherwise of the
statute by reference to what purpose or purposes those responsible for the
statute sought to achieve, and, in particular, the question of the extent to which
it was desired, or believed, that the statute would apply to uses more widely
than turned out to be the case, making reference to evidence as to the types of
uses which were being created in the period immediately preceding the statute,
and noting that the enactment of the Statute of Wills 1540 altered the position
in respect of how the Statute of Uses was applied, and how the Chancery
responded to unexecuted uses, by moving the burden of defence of the royal
feudal revenue from the Statute of Uses to the Statute of Wills.
3.
This question concerned the benefits, or otherwise, of a system whereby
civil litigation and criminal prosecutions at common law to a very substantial
degree employed jury trial as a mode of proof. A good answer would have
observed as a contextual point that not all civil actions or prosecutions in the
period were tried by jury. For example, in civil ligitation there was a (limited)
role for wager of law until the early seventeenth century, and it was possible for
criminal prosecutions in some cases to be handled summarily, or for the mode
of proof to be trial by battle. These points being made, a good answer would
have recognised the fact that a very large proportion of cases were tried by jury,
noticing, however, the possible distinction between cases being tried by jury,
and the outcome of those cases ‘turning largely, if not soley’ on the decision of
the jury, as the question put it. Discussion of this point might have included
consideration of the degree to which trial judges were able or willing to guide
or control jury verdicts, and the various mechanisms by which, at some periods
at least, it was possible for the judgment not to follow the verdict (e.g. through
motions in banc in civil cases, or the reservation of cases in criminal
prosecutions), and hence changes during the period in the nature of the jury’s
function. A good answer would then have addressed, in light of the points
above, the assertion in the question that jury determination of the outcome of
cases, to the extent that it occurred, was regrettable. This would have included
consideration of possible adverse effects of this situation, such as the effect
upon substantive legal development of judgments following largely
automatically from a verdict on the general issue without opportunity for overt
discussion of the legal principles involved, together with consideration of the
extent to which it would have been practically possible to do otherwise than
rely upon jury determination in many cases.
4.
This question concerned the distinction between two forms of action:
trespass
vi et armis (trespass) and trespass on the case (case). A good answer
would have identified a number of elements in the quotation as requiring
discussion: the suggestion that the distinction between trespass and case was
both ancient and artificial; the suggestion that this distinction was formulated
into a rule, and that this occurred in the eighteenth century; that the formulation
into a rule caused injustice; and that the rule retained its full rigour for little
more than fifty years. In relation to the distinction being artificial and ancient, a
good answer would have directed attention to the emergence of case alongside
trespass in the mid fourteenth century. This is an interesting topic in its own
right, though it would be difficult to give it a full-length treatment in an answer
to this question. A good answer would, however, have addressed Milsom’s
important argument that the distinction between the two forms was originally
jurisdictional rather than substantive. In relation to the formulation of the
distinction into a rule in the eighteenth century, a good answer would have
referred to the leading eighteenth-century cases on the point, and addressed
the question of why it was in the eighteenth century, and not before, that the
rule crystalised (while noting a very limited number of earlier indications of a
possible distinction). On the causing of injustice, a good answer would have
addressed the degree of rigour with which the courts applied the rule, noting
in particular the approach of the King’s Bench between the 1790s and 1820s,
explaining how rigorous application might cause difficulties for litigants. And in
relation to the full rigour of the rule lasting for little more than fifty years, a
good answer would have considered relevant nineteenth-century case law,
notably
Williams v.
Holland (1833), and could usefully have drawn attention
(though without extensive detail) to the significance of that decision for the
development of the tort of negligence. A good answer might also have reflected
upon this story as an example of the broader effects of the forms of action upon
the development of the common law.
5.
This question concerned the so-called specialty rule in covenant, that is,
the rule that in the royal courts a covenant action could be brought only by a
plaintiff who had a sealed writing proving the making of the covenant. The
timing and reasons for the emergence of the rule, and the question of why it
applied to actions of covenant but not to actions of debt, all raised by the
question, have been much discussed, and a number of differing arguments have
been advanced. A good answer would have shown familiarity with the leading
arguments, and would have provided critical assessment of them in light of the
available evidence, showing detailed familiarity with the (relatively small
number of) relevant cases. A good answer would have shown sensitivity to the
limitations of the evidence, but would have sought so far as is possible, to take
a view, in light of the scholarly literature, as to what might be the most plausible
way of understanding the developments, while also noting any points
remaining unclear.
6.
The focus of this question was upon the actions available at common law
in the period 1200 to 1600 by which a remedy could be obtained for breach of
an undertaking by treating that breach as a wrong. A good answer would have
noted that the writ of covenant seems straightfowardly to have been an action
for breach of undertakings, and would have addressed the extent to which (if
at all) actions of covenant could be understood as actions to obtain redress for
a wrong (as opposed to actions asserting an entitlement to performance of an
undertaking). A good answer would have noted that once the specialty rule in
covenant had developed, covenant was excluded by the royal courts as an
action on informal undertakings. It continued to be useable in relation for
undertakings under seal, but in practice was largely superseded by actions of
debt on conditioned bonds, which turned upon the plaintiff’s assertion of an
entitlement to a sum of money, and not upon a wrong. The bulk of a good
answer would then have been devoted to a consideration of the use of the
action on the case called
assumpsit as a substitute for covenant, and, in due
course, for debt, in the case of informal undertakings. This part of the answer
would have considered the relevant case law, showing familiarity with the detail
of the various arguments revealed in the reports, and with a particular focus on
the more difficult questions of using
assumpsit for non-performance of
undertakings (
assumpsit for nonfeasance), which occupied the courts for most
of the fifteenth century, and the question of using
assumpsit for non-payment
of debts in the sixteenth century (drawing attention, in relation to treatment of
breach of an undertaking as a wrong, to the pleading mechanism of asserting
a breach of a promise to pay the debt in question).
7.
This question concerned an aspect of the development of the action on
the case for words (defamation) at common law. A good answer would have
identified for discussion a number of elements in the quotation: that there had
been an ‘old distinction’ between spiritual and temporal crimes which once
determined whether the action should be brought in a spiritual or lay court;
that after
Davis v.
Gardyner (1593) this distinction decided instead in many cases
whether special damage needed to be pleaded in the lay court; and that the
results of this shift were unsatisfactory. In relation to the first point, a good
answer would have considered the development by the common law courts in
the late fifteenth century of a practice of prohibiting church courts from hearing
claims concerning imputations of a secular crime, noting the beginning shortly
thereafter of actions on the case for words at common law, initially frequently
concerning imputations of secular crime, but widening during the sixteenth
century to include a number of other categories. In relation to the second point,
a good answer would have explained the reference to
Davis’s Case as
establishing the position that the common law courts would take jurisdiction
over imputations of spiritual offences, if special damage was proved,
contrasting this position with the position in the earlier categories of case that
while secular harm had to be pleaded, it did not have to be proved. In
addressing the final point, a good answer would have gone on to address the
difficulties caused by the co-existence of these two approaches, and how they
were solved, noting the eventual emergence of a lasting distinction at common
law between imputations actionable without proof of loss and those where
proof of loss was required.
8.
This question was focused in particular on the role of fictions in the
English law of restitution before 1800, but also required consideration of the
role of fictions in English law more broadly. A good answer would have
considered the role of fictions in what might be called the law restitution (or
quasi-contract) before 1800, discussing in particular, with reference to case law,
the development from the seventeenth century of actions on the case based
upon a promise to pay money where no actual promise existed, for example in
relation to payment of customary dues, and in actions for money had and
received and money laid out. A good answer would then have employed the
evidence for the role of fictions in the development of quasi-contractual
remedies to address the broader point in the question that this area provides
an excellent example of the more general working of fictions in pre-Victorian
common law, and of the ways in which lawyers could nudge the forms of action
into new areas. This part of a good answer would have addressed the reasons
why quasi-contract might provide an excellent example of this process, and
would have set that example in a broader context by reference to other fictions
which might be said to have achieved a similar effect, for example the use of
fictional allegations of force and arms in trespass writs before the mid
fourteenth century. In the process a good answer would have given attention
to the point that the assertion may seem to identify the forms of action as an
obstacle to the development of the common law, and to the question of
whether development by nudging in this way had any disadvantageous side-
effects.
9.
This question concerned the operation of the courts of common law and
the court of Chancery, and the relationship between the two, in the period
before 1700. A good answer would have identified two main elements in the
quotation requiring discussion: the suggestion that there was a dialogue
between ‘certainty and justice, law and morals’ in the co-existence of the
common law courts and the court of Chancery, and the suggestion that the
outcome of the dialogue was ‘two systems of certainty, two systems of law’,
noting that the quotation does not give any indication of the suggested
chronology for the shift from one position to the other. A good answer might
have set the scene by seeking to identify the turning point which Milsom had
in mind, most probably locating that turning point in the sixteenth century.
Discussion of the first element then required assessment, with examples, of the
extent to which, or the ways in which, the common law in the period before
1500 could be regarded as a system of certainty, and in which the jurisdiction
of the court of Chancery could be regarded as a system of morals. Points for
discussion here would include, for example, the common law’s insistence upon
formality in certain areas, its unwillingness to allow deeds to be answered other
than by another deed, and its rules of pleading, together with the approach of
the Chancery to these common law positions, and the degree to which the
characterisation in the fifteenth century of the Chancery as a court of conscience
might suggest a link between that jurisdiction and morality. A good answer
would also have addressed the question of a shift to the later position,
considering the various changes in both systems which moved them both
towards becoming more fully bodies of substantive rules. A good answer might
also have addressed the question of whether these developments were
beneficial for the common law, and what might have been lost or gained in the
process.
10.
This question was concerned with education in the common law and the
position of such education in relation to the two ancient English universities.
The first element of the statement required consideration of why it might be
that common law could not have been satisfactorily taught in Oxford or
Cambridge before the eighteenth century, and, by implication, the question of
where it was taught. A good answer would have addressed the question of the
materials which could have been available in Cambridge or Oxford to those
seeking to study common law before 1700, noting the substantial lack in that
period of useful treatise material, the nature of the available law reports, in
particular those of the year book period with their heavy focus on pleading, and
the practical difficulties for anyone studying in Cambridge or Oxford of
attending the common law courts in Westminster to learn by hearing discussion
in court, or by otherwise interacting with practitioners and judges. A good
answer would have compared the position for anyone seeking to study the
common law at the universities before 1700 with the position of those studying
at the inns of court (and, before their emergence in the mid fourteenth century,
and the law school which seems to have been in existence in Westminster from
the second half of the thirteenth century), noting, among other things, the ease
of attendance in court, and the access to practising members of the profession,
and to the judges, outside court, both in the formal learning exercises in the
inns, and in more informal contexts such as shared meals. A good answer would
have gone on to assess the implication of the statement that the position
changed in the eighteenth century, noting, for example, Blackstone’s lectures in
Oxford in the 1750s, the growing range of treatise literature and of printed
reports, and the decline of the inns of court as educational institutions by the
seventeenth century, while also noting that systematic teaching and learning of
the common law in the universities was not securely established until well after
1800. A good answer would also have given attention to the implications for
the development of the common law of the earlier separation of common law
education from the universities, and, in particular, the implications for the extent
to which the common law was influenced in its development by civilian ideas.
EXAMINERS REPORT
LLM Paper 36
: INTERNATIONAL INTELLECTUAL PROPERTY
In 2018/19, 18 LLM candidates sat the International IP exam (in addition to 5
candidates who chose to do a thesis). Out of those 18, 1 achieved a starred First (with
Distinction), 4 achieved a First, 11 candidates got a 2.1 (out of which 6 obtained an
upper 2.1 with marks at or above 130), and 2 obtained a 2.2. The exam offered a range
of essay and problem questions, covering the various IP rights addressed in the
course, their protection under international law, and their interfaces with other areas
of international law addressed in the course. As an open book exam, less credit is
given for simply rehearsing information that can be deduced from material students
can bring into the exam. Instead, applying the relevant knowledge and information to
be derived from the course material to the question at hand had been explained to be
of essence for a good mark.
Question 1 had been attempted by 7 students, with 2 achieving a First. Based on a
quote, it asked students analyse the development of copyright protection, with specific
emphasis on the rules on copyright subject matter and those concerning the threshold
for copyright protection, under the Berne Convention (BC), TRIPS and subsequent
treaties – in contrast to international trade mark and patent law. In relation to subject
matter, the rules in Artt.2 BC, 10 TRIPS and the corresponding ones in the WCT
(including the latter’s Agreed Statements) should be considered. Similarly, the
provisions relevant for copyright thresholds, such as those concerning the idea /
expression dichotomy in TRIPS and WCT and those on intel ectual creation in BC,
TRIPS and WCT, needed to be appreciated. While not required, the question would
also al ow further discussion of copyright rules in Free Trade Agreements (FTAs), such
as the CP TPP or the USMCA, although less relevant for subject matter and
thresholds. Against this normative framework, students were asked to evaluate and
discuss whether the BC provisions comprehensively address these issues, so that
subsequent agreements ‘merely fil some minor gaps’. Depending on the position
taken in relation to the relative importance of the respective BC vis-à-vis TRIPS and
WCT rules, different views could have been put forward in that analysis. Beyond
subject matter and thresholds, the normative development in relation to exclusive
rights (especial y in the WCT) and exceptions (three-step-test under TRIPS and WCT,
including its respective Agreed Statement) could have been addressed. Overal , those
who engaged in detail with the quote and developed a detailed line of argument
accordingly did best.
The second essay question – undertaken by 6 with 2 Firsts – concerned international
IP enforcement, offering a quote by Reichmann and Lange from 1998, predicting right
holder’s disappointment with the TRIPS enforcement regime. It specifical y asked
students to consider (1) the possible reasons for any disappointment with the TRIPS
enforcement provisions; (2) how states have responded to address any
disappointment; and (3) whether such responses are to be welcomed. On the first
aspect, reasons for right holders’ disappointment with the comprehensive TRIPS
enforcement rules could for example be seen in the widespread use of ‘shal have
authority’ commitments under TRIPS (and how that was construed in
China – IPRs),
the general flexibilities set out in Artt.41.5 & 1.1 TRIPS, as wel as the rather flexible
construction of notions such as ‘commercial scale’ under Art.61 TRIPS in the
China –
IPRs Panel Report. State responses have primarily in form of negotiating additional
and much more detailed enforcement provisions in FTAs, e.g. on border measures
(covering a wider range of IP rights, and export & transit) or criminal enforcement.
States have also adopted such kind of ‘TRIPS-plus’ approaches in their domestic
enforcement regimes – which can have the potential for third party effects, as
evidenced for example in the controversial cases of seizing generic drugs in transit in
various EU member states. Depending on the examples students relied on and the
normative benchmark they chose (which for example could be derived from the
general balance between trade and IP enforcement set out in Art.41:1 TRIPS),
different views can of course be put forward on the desirability of state responses
(while a lot of academics have taken a rather critical position on a lot of those
responses, in particular with regard to significantly more detailed and comprehensive
rules set out on the international level).
Question 3, another essay question, had been attempted by 9 students, 1 achieving a
starred First and 2 further a First class mark. The question invited students to compare
and contrast the 2 major trends for additional protections in international IP law post
TRIPS: namely through investment law on the one hand, and through IP chapters in
FTAs on the other. While the quote suggested that these trends are ‘very similar’ and
‘highly problematic’, students should have focused on these assertions and engaged
in a critical discussion on their accurateness and merit. In this context, answers ideal y
identified the extent to which these trends have common elements (for example in that
the affect the policy space left under the multilateral IP system), and showed how they
nevertheless are quite different: on a conceptual level (regulating private law relations
vs. protections essential y against state interferences); with regard to the additional
commitments undertaken by states (detailed rules on how to protect and enforce IP
rights domestical y vs. broad standards of investment protection); compliance with
these commitments and how disputes about such compliance have been settled (WTO
state to state dispute settlement vs investor-state dispute settlement related to IP
rights as investments). A careful discussion of the similarities and differences allowed
students to consider whether these trends are equal y problematic, involve different
contentions, or perhaps are not problematic at al .
The final essay question of the exam offered a quote on international IP vis-à-vis
international human rights protection. It has been the by far most popular one,
attempted by 14 candidates – of which 5 achieved a First. The question essential y
asked students to engage with the proposition that IP and human rights protection, on
the international plane, have ‘nothing in common’ – inter alia because as ‘distinct legal
regimes’ they ‘serve opposing objectives’ and ‘cannot operate in a mutual y supportive
way’. These core aspects of the quote offered one (although not the only) way to
structure one’s answer. Overal , students should engage in a comparative analysis of
the two areas of international law (of course with regard to human rights, limited to the
aspects relevant for IP protection: such as creator’s rights, the right to property and
other human rights interfacing with IP protection such as the right to health, food or
education). In that exercise, the above mentioned aspects of the quote invited to
discuss the extent to which we are actual y confronted with distinct legal regimes
(based on their objectives and principles for protection); the extent to which one can
identify common elements and specific differences (for example with regard to
creator’s rights and the right to property vis-à-vis copyright, trade mark- and patent
rights); and whether there are options for the two regimes to operate in a mutual y
supportive way (for example by human rights serving to protect IP assets, or the
regulation of IP as tool to give effect to human rights).
Question 5 – a problem on international copyright protection – had not been
particularly popular: only 4 students attempted it, with 1 First class result. The question
concerned 2 provisions in the domestic copyright law of a hypothetical WTO Member
which is also bound by the Berne Convention (BC), asking students to consider the
legality of provisions that offer stronger moral rights protection than that afforded to
under Art.6bis BC. In particular, students needed to deal with the relation between
moral rights protection and international rules on exceptions and limitations to
copyright protection (such as the mandatory quotation exception under Art.10 BC and
the three step test set out in TRIPS) which in turn raised questions about the nature
of exceptions and limitations in the context of minimum standards of protection (can
exceptions also serve as maximum standards or ceilings to stronger protection than
required?), and about the extent to which moral rights protections are exempted from
TRIPS (does the exemption under Art.9:1 TRIPS also affect other BC and/or TRIPS
provisions implicated by moral rights?). In addition, students had to consider whether
arguments that the moral rights protection – while formal y not distinguishing on the
basis of nationality of right holders or users – are breaching national treatment
principles under the BC or TRIPS are sustainable on the basis of al eged de facto
discrimination. The arguments set out in the fact pattern offered a useful guide for
students to consider these questions.
Question 6 on international trade mark law was attempted by 10 students, leading to
3 Firsts and 1 starred First. The fact pattern giving rise to this problem question
concerned measures a hypothetical developing WTO Member is taking to tackle high
levels of child obesity, inter alia through a ban of trade mark protected cartoon
characters on soft drinks (as those characters seem to entice kids to buy soft drinks
which in turn account for 50% of al childhood obesity cases in that country). Against
this background, students were invited to consider various arguments on alleged
breaches of provisions of the Paris Convention (PC) and TRIPS in relation to trade
marks. Most saw the similarities to aspects decided in the Australia – Plain Packaging
Panel Report and were able to apply them to the facts at issue. Good and very good
answers careful y distinguished the findings in the Plain Packaging case from the
measure at hand, in particular with regard to the question of (un)justifiability under
Art.20 TRIPS and whether an alternative that might be less intrusive on the legitimate
interests of the trade mark owner must be adopted. The facts al owed for a detailed
discussion of this point, in particular the question of whether the suggested alternative
would be equal y effective, including in light of the resources available to the
developing country at issue.
Final y, question 7 – undertaken by only 3 students of which 1 achieved a First –
focused on international patent protection and IP enforcement rules under the TRIPS
Agreement. At issue in this problem question is a system of discretionary grant of
injunctive relief in patent infringement cases, as operated by a hypothetical WTO
Member. Among the various factors considered by the respective courts, the
wil ingness to engage in licensing requests and local manufacturing of the patented
invention (where possible) were important for either granting injunctions to stop
infringements, or rather to afford adequate remuneration as a form of compensation
for the patent infringement. Students then needed to consider arguments about
breaches of Artt.28, 31 and 27:1 TRIPS. Concerning Art.28, answers should address
the relation between Art.28 (on the exclusive rights of the patent owner) and Art.44
(injunctive relief as a remedy in cases of IP infringement), in particular in light of the
flexibility afforded under Art.44:1 (that merely requires WTO Members to ensure that
their courts ‘shal have authority’ to grant injunctions) and its interpretation in
China -
IPRs. Discussion on the question of compliance with Art.31 (on the conditions under
which compulsory licenses can allow the use of a patented invention) similarly needed
to consider the application of that provision in the context of IP enforcement, as
addressed in Art.44:2 TRIPS, and whether this is in fact a case of Art.44:2 TRIPS.
Final y, regarding the obligation not to discriminate between fields of technology and
whether products are imported or local y produced, students should have focused on
the scope of the non-discrimination rule and whether it extends to IP enforcement
measures. The term ‘enjoyment’ of patent rights hence needed to be interpreted, for
example based on its broad construction in the Canada – Patents case, in relation to
the footnote 3 in Art.3 TRIPS, defining the scope of the national treatment obligation,
or based on the systemic position of Art.27 in Part II of TRIPS. If Art.27 was considered
to be applicable, questions on the proper interpretation of the term discrimination arise,
including the relation between Art.5A of the Paris Convention and Art.27 in cases of
local working requirements.
Examiners’ Report
LLM 2018-19
Paper 39: Legislation
22 candidates sat the examination. On the whole, the candidates demonstrated a good level
of knowledge. However, there were fewer Firsts in this paper than might have been expected.
This was because candidates were less willing to critically engage with some of the literature,
or because candidates were less willing to focus on providing a detailed argument to the
specific question raised.
What was more pleasing was to see that candidates were able to develop answers to the
question in a variety of ways. Some drew on a detailed knowledge of the UK constitution,
whereas other candidates drew on examples from their own legal systems, or drew
comparisons across a range of legal systems.
The distribution of marks was as follows:
First
9%
2(i)
68%
2(ii)
18.5%
Third
4.5%
Fail
0
Specific Comments
Question 1
This was a fairly popular question. Most candidates were able to provide a good account of
the different role of backbench and opposition MPs and pressure groups in the law-making
process. Some candidates focused on providing a detailed account of UK law, using specific
examples, whilst others focused on providing a more abstract account of how different types
of legislature (e.g. transformative, active, or passive) and different types of legislation
influenced the extent to which non-Governmental MPs and pressure group played a role in
determining the content of legislation. Better candidates also provided a detailed analysis of
the extent to which pressure groups and non-Governmental MPs should play a role in the
law-making process, explaining how this may depend on the type of legislation being enacted.
They were also not just to give an account of the literature, but to critically engage with its
accuracy concerning the role of modern Parliaments.
Question 2 This was a less popular question. Most candidates demonstrated a good ability to provide an
account of different forms of ‘constitutional’ legislation – e.g. distinguishing between
foundational legislation and legislation protecting human rights. Better candidates referred
to work by Feldman and by Perry and Ahmed when delineating between different types of
constitutional legislation, criticising these different definitions. Better candidates also
evaluated clearly whether constitutional legislation should be interpreted differently, or
enacted, or modified or repealed, as well as drawing comparisons between the UK and other
constitutional systems – e.g. the USA, Canada, India, South Africa, and Australia.
Question 3
This question was not as popular as other questions. Weaker candidates were able to provide
an account of second chambers, but failed to think more critically about their relative roles.
Stronger candidates were able to evaluate how far second chambers were required to
represent local as opposed to federal interests, or to provide a useful ‘second look’ bringing
in elements of expertise or more detailed technical scrutiny. In turn, better candidates
evaluated different roles of second chambers in the light of these features, looking at their
scrutiny over primary and secondary legislation, in addition to their scrutiny of the executive.
Again, stronger candidates also evaluated the role of second chambers in comparison to the
nature of the first chamber – e.g. the extent to which it was an active, reactive, or weak
legislature.
Question 4
This was a very popular question, with candidates demonstrating a good ability to provide a
good account of the relevant literature and the difficulties of determining the intention of a
corporate body. Stronger candidates were able to focus more specifically on whether
intention alone should guide courts when interpreting legislation, or whether other factors
should also influence legislative interpretation. In particular, they were able to spot how the
relative importance of legislative intention may vary when applied to different types of
legislation, or to remedy distinct problems that may not be able to be resolved by
interpretation alone.
Question 5
This was not as popular as other questions, but did generate some good answers. Weaker
candidates set out the role of delegated legislation, and provided an account of the way in
which delegated legislation was scrutinised by the courts and legislatures, but failed to
provide a detailed evaluation of what was meant by ‘effective’ scrutiny. Stronger answers
focused on different types of scrutiny – to uphold democratic control over policy decisions;
to protect the separation of powers; to ensure measures are accurate; to ensure delegated
legislation is enacted in a legitimate manner; to ensure it is legally valid; to check that it does
not undermine human rights or other fundamental constitutional values – evaluating how
different types of delegated legislation may need different forms of scrutiny to ensure this
scrutiny was effective. They were also able not just to set out legal and political controls, but
to evaluate how these worked together to provide effective scrutiny over delegated
legislation.
Question 6
This was not as popular as other questions on the paper. Stronger answers were able to draw
on and critically engage with the academic literature to support their argument. Moreover,
they engaged more specifically with an evaluation of controls over the making of policies,
circulars and guidelines by front-line administrators in addition to an evaluation of controls
over the content of these policies etc. They were also more able to provide specific examples
to illustrate their arguments.
Question 7 Although this was not a popular question, it elicited excellent answers from candidates who
were able to draw on Polsby and Mazey’s models of legislatures and provide a detailed
evaluation of how recent events surrounding Brexit may have modified the nature of the UK
Parliament. They were also able to link these potential changes to the referendum and the
role of the Fixed Term Parliaments Act 2011.
Question 8
No candidates attempted this question.
Question 9
This was a very popular question. Those who tackled the question drew on the need to think
carefully about the extent to which parliamentary scrutiny over Treaties may depend upon
the nature of the Parliament in question and also the type of international Treaty. However,
whilst most candidates were able to provide this framework through which to evaluate
legislative scrutiny over Treaties more generally, few candidates focused specifically on the
precise issue raised by the question, which looked specifically at the extent to which
legislatures should scrutinise Treaties during the negotiation stage. Stronger candidates
focused more specifically on this issue, using information about other aspects of legislative
scrutiny over Treaties (e.g. over ratification or over the implementation of Treaties in dualist
systems) to evaluate the extent to which legislatures should scrutinise Treaty negotiation.
Question 10
This was not a popular question. Weaker candidates showed a good knowledge of the ways
in which legislatures could scrutinise the enactment of legislation concerning fundamental or
human rights and drew upon the experience of Canada, Australia (Victoria and ACT), New
Zealand and the UK. Stronger candidates provided normative arguments concerning the
extent to which Parliament should play this role, and the limits of its powers of scrutinising
human rights, linking this in to possible further legal controls over human rights legislation.
Question 11
This was an extremely popular question. Candidates demonstrated a good awareness of
different types of emergency or fast-track legislation and how the level of parliamentary
scrutiny over legislation may vary depending on the type of emergency. Stronger candidates
demonstrated a better ability to evaluate this information, as opposed to merely giving an
account of different controls. In particular, they focused more particular on the requirements
of effective scrutiny, focusing on whether this scrutiny should be at the pre or post legislative
stage, in addition to evaluating whether emergencies were best dealt with through the
enactment of legislation that provided for broad powers to the executive, or required specific
legislative responses.
ADVANCED PRIVATE LAW (LLM PAPER 41)
EXAMINERS’ REPORT 2019
The general standard of scripts was very good. At the top end, the quality was excellent: these candidates not
only had a very sound technical grasp of all the relevant information, but were able to bring together various
parts of the course and offer thoughtful insights in responding to the different questions. As ever, we gave
much less weight to the simple serving up of information (even if it was relevant and correct).
The distribution of grades was as follows:
Class
Number of candidates %
1*
0
0
1
11
39
2i
15
54
2ii
2
7
Totals 28
100
In addition, one student was examined by dissertation, and obtained a first class grade.
Commentary:
1. All the questions on the paper were essay questions. With such questions, any number of approaches
might successfully be adopted to provide a good answer. What is essential in every case, however, is to
focus only on material that is relevant to providing a robust answer to the question asked, and to ensure
the level of discussion is appropriately sophisticated (see below). The range of ways in which this might
be delivered is illustrated by the examples from 2017-18 candidates put on Moodle. Note that these are
not ‘model’ answers: any number of approaches could have been equally successful, and notice that even
those answers obtaining very high marks under examination conditions nevertheless contain evident
shortcomings.
2. By far the most popular questions on the 2019 paper were questions 6 and 9. For each of these questions,
marks ranged from 1* to 2ii. A short way behind in popularity came questions 2, 5 and 11, with the
remaining questions attracting still fewer answers. Every question was attempted by someone.
3. This report does not comment on each question, but endeavours to provide generic guidance to
approaching this form of examination paper.
4. The first and obvious point for candidates is to answer the question asked, and do so clearly and
deliberately. It is not possible to award marks for irrelevant material. That means material must be
1
selected carefully, and only the relevant aspects of that material given due attention. But even this is not
enough. The material must be
used to defend your answer to the question asked. Some candidates
presented quite sophisticated descriptions of material that might easily have been put to good work in
answering the question, but no effort was made to take that step and use the material to advance and
defend a focused answer to the question.
5. Secondly, it is essential to manage time effectively. There were no starred firsts this year, yet many of the
top candidates produced answers of starred first class quality or close to that; indeed, those at the very
top produced a majority of such answers, but then their marks fell sharply in their third question. For a
starred first, consistency is necessary.
6. Thirdly, the best answers invariably adopted a clear structure, with the route ahead plainly determined
before the first paragraphs were written, not after, so that each step in the argument was presented in
logical progression so as to persuade the reader of the arguments being advanced.
7. Fourthly, the most successful candidates paid careful attention to the issues of both substance and
approach that they were trying to demonstrate in their answers. The best answers displayed a detailed
and sophisticated understanding of relevant legal rules and how those rules were applied in different
contexts, but kept their mere reporting of this current state of the law concise, enabling time to be
devoted to addressing in detail an appropriate selection of the difficult and contested doctrinal or policy
issues raised by the modern law. (No waffle, no deviations, no rambling.) The aim should be to set out
clearly and defend the elements needed to make out your argument, and explain why the counter-
arguments that might be advanced by others are less persuasive. This robust form of argument and
analysis is rewarded far more than mere assertion of a legal principle or a conclusion. The goal is to
showcase your legal knowledge and your evaluative skills.
8. Continuing this theme, legal knowledge at LLM level is demonstrated by an understanding of judges’
reasoning in the cases, not by simple statement of their conclusions. Similarly with commentators. In
controversial areas it is then necessary to evaluate this reasoning, deciding whether it is compelling or
whether it can fairly be criticised on particular doctrinal or policy grounds.
9. At the top end, candidates excelled on all these fronts. More generally across the entire range the
performance of candidates was impressive, and rewarded accordingly.
2019 Examiner
2
LLM PAPER 1 – LAW, MEDICINE AND LIFE SCIENCES
EXAMINER’S REPORT 2021
This was the sixth year that this paper was offered and there were 21 candidates who sat the
paper. In general, the candidates performed very well: 11 received a first, and 10 received a
2:1. It was clear that the change in format due to Covid-19 (i.e., the 24-hour exam period and
the ability to type) allowed many students to produce better quality answers than in the three-
hour exam. Thus, because the marking standard was not modified (i.e., scripts were graded as
if produced in three hours in an examination hall), there were more firsts than normal.
When reading this report, it should be borne in mind that there are many different paths to an
excellent answer and that not all of them can be identified here. The specific remarks below
focus on the ways of answering the questions that were adopted by those sitting the exam.
1.
‘
Chester v
Afshar and
Gregg v
Scott illustrate the inherent problems with relying on
the law of negligence to protect the interests of patients.’
Discuss.
This question was attempted by around a quarter of the class. Most scored very highly and
offered a wide range of views on whether/how the cases of
Chester and
Gregg illustrate
‘inherent problems’ with relying on the law of negligence to protect the interests of patients.
Regarding the case of
Chester, there are two possible interests to be discussed: an interest in
avoiding physical injury and an autonomy interest. The core question is whether these interests
are adequately protected by the law of negligence (or whether, as the quote states, the case
illustrates an “inherent problem” with the law). With respect to Chester’s physical injury, a
good answer addressed whether she deserved compensation for this injury, whether
compensation was possible under traditional causation rules, and if not, whether it was
desirable to modify the law to provide such compensation. With respect to Chester’s loss of
autonomy, one needed to address whether the law of negligence should provide compensation
for this type of injury, and if so, how; or alternatively, whether an alternative means of
compensation would be preferable. Many students demonstrated deep engagement with the
literature on these challenging questions.
Regarding the case of
Gregg, there were also two core issues to discuss: whether Gregg should
have been awarded damages under his conventional tort claim (which would have required that
the Court create an exception to the but-for test) and/or whether he should have been awarded
damages for his “loss of chance” claim (which would have required that the Court recognize
this as an actionable form of damage in clinical negligence). Both are multi-faceted questions
that could not be fully addressed in an exam answer, so good answers clearly limited their
scope, identifying and engaging with just a few strong arguments against each way of
addressing the alleged problem with relying on the law of negligence to protect the interests of
patients.
2.
‘The high price paid for medicines should not be blamed on the patent system, but
rather on the heavy-handed regulation of safety and efficacy.’
Discuss.
This question was answered by a small number of students; all to a very high standard. The
question expressly raised two distinct areas of the course, and candidates competently traversed
and integrated the materials in their arguments. Most disagreed, at least in part, with the
statement. For example, some argued that despite some literature in line with the quotation,
regulation of drug safety was not heavy-handed and regulation of efficacy was negligible—
and further, that the patent system was in fact primarily the cause of high price. It was also
argued that the prices were justified as incentives for R&D, rather than ‘blameworthy’. Some
candidates added further nuance, such as pointing out that the extent to which they
agreed/disagreed depended on different country’s healthcare systems (e.g., US, UK,
developing countries). Others mentioned that a relevant factor was the extent to which
healthcare buyers properly negotiated prices for patented, market authorised drugs, and praised
the UK system for some of its initiatives.
3.
‘Consent should be obtained before a doctor transplants the organs of dead patients,
provides medical treatment to living patients, or conducts research using the data of either. The
reason in all of these cases is the same.’
Discuss.
This question was attempted by around a quarter of the class, and their marks ranged from a
low 2.1 to a high First. A good answer demonstrated knowledge of the different reasons one
might require consent (e.g., respect for autonomy, bodily integrity, trust, etc.) and explored the
extent to which they provided the rationale for requiring consent in three different contexts
identified.
Regarding organs, several candidates questioned whether the dead have interests in autonomy
or bodily integrity, and one explored whether the same interests are protected when consent
comes from the deceased person versus that person’s family. Good answers also engaged with
the question of whether/how the relevant interests are protected by the switch to “opt-out”
systems in England, Wales and Scotland (which weaker answers failed to recognize).
Regarding treatment, many critically explored the standard view that consent protects
autonomy, engaging with the O’Neill’s critique of this view. Some also explored whether the
consent of adults versus
Gillick competent children protected different interests.
Regarding research using data, some of the best answers critically explored whether bodily
autonomy and informational autonomy are the ‘same’ interest. Weaker answers failed to note
that consent is not necessarily required (e.g., post-anonymization), and a few strayed off-topic,
discussing research on persons and research on tissue without connecting them to the question,
which only speaks to research on data.
4.
‘In resource allocation and other areas of health policy, our aim should not be to
maximize aggregate welfare, but rather to satisfy the strongest individual claims.’
Discuss.
This question was attempted by around a third of students, most of whom received a 2.1. The
question provided students with an opportunity to draw together the sessions on public health
and COVID-19, both of which explored consequentialist vs. contractualist approaches to public
health policy. The best answers demonstrated solid knowledge of ‘competing claims’ approach
advocated in the book chapter by Frick and the article by John and Curran—and did not merely
repeat their arguments, but rather critically engaged with them. However, a surprising number
of students did not seem to understand their arguments at the most basic level. For example,
several conflated “strongest claims” with treatment claims and/or identified lives claims.
These are distinct in subtle but crucial ways that are clearly identified in the readings. Many
students also failed to address the quote directly, focusing instead on related questions from
the sessions on public health and COVID-19 (e.g., questions regarding prevention vs.
treatment, withdrawal vs. withholding, etc.). Students must take care to address the question
that is asked—not the question they studied and wish had been asked.
5.
‘In several areas of medical law, courts have reached the right result by reframing the
question.’
Discuss.
This question, which was not attempted by many students, provided an opportunity to draw
together the ‘framing’ theme from various sessions of the course. There are many examples
that one could discuss. For example, in cases of withdrawal of treatment from PVS patients,
one could argue that courts have authorized withdrawal by focusing on whether continued
intervention (rather than withdrawing treatment) is in the patient’s best interests; and/or that
courts have determined that treatment is “futile” by focusing on whether it will cure the patient
(rather than extend the patient’s life). In cases of capacity, one could argue that courts have
found that children lack understanding of the necessary information by defining the
information at a very high level of specificity. And in cases from various sessions, one could
argue that courts shape the legal outcome (intentionally or not) through their choice of an ex
ante vs. ex post perspective. Finally, after identifying how courts have shaped the outcomes
of cases through their framing, a good answer would address whether this allowed the courts
to reach the “right result” in these cases.
6.
‘Reproduction through sex is generally unregulated. Medically assisted reproduction
should be treated the same.’
Discuss.
This question was attempted by three-quarters of the class, with a wide range of marks. The
best papers made a clear, confident argument demonstrating that they were well-informed
about the law and relevant theoretical concepts. Mostly these papers agreed that coital
reproduction is generally unregulated, giving a small number of examples of the exceptional
circumstances where the law has a role in directing coital reproductive behaviour (e.g.,
requirements for consent and minimal age for sex, and prohibitions on incest). They moved on
swiftly to discuss whether medically assisted reproduction should also be generally
unregulated. They gave examples of regulations that currently apply – drawing extensively on
the Human Fertilisation and Embryology Act, and related case law; and discussed the rationales
(or lack of rationales) for each regulatory example. Common examples included s.13(5), the
requirement for consent from both gamete donors if treated as a couple at the time of
implantation, and the rule that only ‘permitted’ embryos may be implanted in a woman. The
most challenging part of the question was to explain why differences in the extent of regulatory
intervention in each domain (coital vs. medically assisted) was justified. One view was to argue
that procreative liberty was important albeit not absolute in each domain, but that other factors
could weigh differently against procreative liberty in the case of coital and medically assisted
reproduction. These factors might include the privacy of the woman or the man, bodily integrity
of a pregnant woman, and third-party interests (e.g., for a fetus or any child born from the
procedure, health professionals or the State body which may be funding reproduction, obstetric,
neonatal and paediatric care). For instance, disallowing reproduction by adults above a certain
age or who are unlikely to provide a good family environment for a child created by fertilisation
might be too much of a privacy invasion and practically difficult to enforce in the case of coital
reproduction – but otherwise is an important counterweight to procreative liberty in both
domains.
7.
‘The strongest arguments against human enhancement concern the degradation of
values, rather than the violation of rights.’
Discuss.
There were not many answers to this question, but they were all highly competent. In the main,
candidates leaned towards agreeing with the quotation, but argued that claims about the
degradation of values were not particularly strong either. For instance, they argued these
claims tended to be based on unevidenced slippery slope reasoning and to overlook standard
analogies in everyday life. Candidates demonstrated extensive reading in relation to this topic.
In discussing the ‘violation of rights’ half of the quote, students identified various possible
rights at stake, including the right not to undergo procedures without informed consent and the
right to an open future. When discussing these issues, candidates succinctly dealt with the non-
identity problem and refuted the claim that subsequent generations have a right to non-
interference in their genome. Surprisingly, candidates said little about the notion that access to
human enhancement technologies could be rights-affirming. One might have argued that based
on considerations of liberty or autonomy, people should be able to choose how to manage their
own bodies and/or the best interests of their children’s bodies.
In the discussion of degradation of values, candidates tended to focus on assertions in the
literature about loss of dignity, an openness to the unbidden, human agency and the value of
hard work, and solidarity. Other issues were also raised.
8.
‘It is a mistake to think that the withdrawal of ventilation is an omission. It is also a
mistake to think that this matters very much. The legal and ethical complexity of withdrawing
ventilation is not captured by the act/omission distinction.’
Discuss.
This question was attempted by around three quarters of the cohort and the majority did very
well. A good answer systematically analysed the three questions raised by the quote.
The first question is whether the withdrawal of ventilation is an omission, which some
candidates split into a descriptive question (does the law treat withdrawal as an omission?) and
a normative question (should the law treat it as an omission?). Candidates offered very
different answers to the normative question, but the best all demonstrated deep knowledge and
engagement with the rich legal and philosophical literature on this topic.
The second question is whether treating withdrawal as an omission ‘matters very much.’
Several students failed to engage with this part of the quote. Those who did address it generally
challenged the claim, arguing that in law, the act/omission distinction matters a lot (as it shapes
whether withdrawal is murder vs. something that is legally required). However, most also
argued that ethically, the act/omission does not matter very much—and thus that it should not
matter legally either. Again, the best answers drew on the rich literature on the topic, including
the readings on the equivalence thesis.
The third question is whether the legal and ethical complexity of withdrawing ventilation is
captured by the act/omission distinction. Here, most agreed with the quote, arguing that the
legal and ethical status of withdrawing ventilation will often turn on other considerations. In
identifying these issues, many connected the readings from the sessions on end-of-life care and
COVID-19.
9.
‘The law misallocates control over the medical care of children.’
Discuss.
Approximately one-third of candidates attempted this question with mixed success. Better
answers recognized that the question was not limited to mature minors, but also extended to
young children and the issues raised in cases such as
Great Ormond Street v Yates and Gard.
Good answers also gave a concise, well-organised and accurate description of the law
concerning decision-making powers for the medical care of children, referring at appropriate
places to legislation (e.g., Family Law Reform Act, Mental Capacity Act) and case law (e.g.,
Gillick, Re W, Re R, Re E, Re L). Some also referred to human rights law and professional
guidance. Several candidates failed to explain the law coherently; they left a reader confused
about the distribution of control between parents, child, court and doctor at different phases of
child development. Nonetheless, pleasingly, all candidates critiqued their account of the law.
Excellent answers did so with reference to concepts of autonomy and/or liberty (in the
immediate and longer term), paternalism and transitional paternalism. Excellent critiques also
responded to arguments that might challenge their position.
10.
‘In addressing antibiotic resistance, the core challenge does not lie in identifying the
correct normative position, but rather in devising the regulatory technique to implement it
effectively.’
Discuss.
Only a few candidates answered this question. The answers were all a very good standard
despite being very different from each other, illustrating the variety of answers that good
candidates can develop in response to essay questions. The candidates agreed that devising
regulatory techniques to limit the development of antibiotic resistance is highly challenging.
Some candidates then spent most of their words evaluating regulatory ideas and explaining
why they were contentious. Other candidates agreed that identifying effective regulatory
techniques is difficult, but argued that there was also a challenge in identifying the normative
issues; these were an important step for steering policies to address antibiotic resistance.
Critically examining normative issues required originality and sophistication of thought
because it was not covered expressly in course material. For instance, there are
intergenerational normative issues. If antibiotics are too often denied in the name of
conservation of antibiotic effectiveness, today’s patients could be harmed to prevent harm (lack
of antibiotics) for future generations. This echoes some of the treatment/prevention debates in
public health law. An added complexity is that future generations may have the advantage of
new antibiotics if antibiotic innovation is properly stimulated. So the balance of benefit
(consequentialism) may not favour strict conservation. The present day needs of third world
countries also need to be given sufficient value.
LLM Paper 2: International Commercial Tax
This exam attracted 14 candidates; a smallish group by LLM standards. Four
candidates received a I, eight an upper II.1, and two a lower II.1. There were no II.2s
or IIIs. This was an excellent set of results, with an average mark of 136, consistent
with last year but higher than in previous years. I continue to be particularly pleased
with the online assessment. The answers were clear and concise, and it was
particularly noticeable that the answers were more polished and demonstrated the
incredible ability of the LLM students. While the Michaelmas term was taught largely
in person, the Lent term was taught exclusively online. I feel that students particularly
benefited from online/recorded lectures, but online workshops are less than optimal.
One positive aspect coming from the adjusted structure for this year was a weekly
online consultation session, which is likely to be continued in future years.
The exam is usually divided into three essay questions and three problem questions.
In recognition of the difficulties faced by this year's cohort, an extra essay style
question was added at a late stage. This year there was again a preference for problem
questions - there were 17 answers to essay questions and 25 to problem questions. By
comparison, as usual, there was a big difference between those who chose the first
three questions compared to those who chose the last four questions – 25 answers
compared to 17 answers. It seems students particularly took notice of the observation
that the latter questions are usually the more challenging ones (balance of risk and
reward where average result stays the same). The most popular question was Q3
(answered by all students) and the least Q6 (no answers). As usual, three questions
raised EU law issues (Q2, Q6 and Q7). These questions were not so popular, with
answers totalling 11 out of 42 answers. While I am sure that these questions were
favoured by students from the EU, it is also clear that many students from outside the
EU produced very good answers to these questions. The average mark for the final
three questions was about the same as for the first three questions.
To repeat a comment from previous years, I remain intensely proud of how candidates
begin this course with very little experience in tax law and nevertheless perform well
in the exam (while there were no starred firsts this year, the top mark was very high).
In particular, students showed comfort with the difficult issues raised by the BEPS
and BEPS II projects. The learning curve continues to be exponential. I continue to
receive positive feedback as to the practicality of this course from the growing group
of former students who end up in international tax practice (and even from some who
don’t). The special dynamic of this course continues to be aided by the mix of
students with expertise in a variety of subjects and by the dedicated text for the
subject.
Question 1 This was an essay question on the interpretation of tax treaties. It was
answered by six students. Students had no trouble recounting issues arising from
fitting in the Commentary within Arts. 31 and 32 of the Vienna Convention.
Similarly, the interface between Art. 3(2) OECD and the Vienna Convention was
done well. Answers tended to be less comprehensive on issues with specific
definitions (e.g. inconsistency of approaches) and examples were a bit hit and miss.
More might have been made of reference to domestic law which might result in
inconsistent scope for the countries concerned. However, by and large this question
was answered very well.
Question 2 This was another essay question, this time on forms of relief from double
taxation. It drew five answers. Students had no trouble discussing relief under Art. 23
of the Model and all covered the lack of relief from economic double taxation of
dividends. EU Parent-Subsidiary directive and fundamental freedoms were referred
to, but some answers only in a mechanical way without much comparison. Better
answers contextualised relief and noted relief is commonly provided by source
countries. Best answers engaged with relief under Art. 9(2) of the Model.
Question 3 This was the usual PE problem and was answered by all candidates.
Candidates generally analysed the position of DD well accounting for both the
possibility of a physical PE and an agency PE. Fewer candidates engaged with the
attribution of profits to a PE if found. The discussion of T was a bit more hit and miss.
Some answers engaged directly with the difficulty of determining the meaning of
"employment" and most had no trouble in applying Art. 15(2). Better answers
engaged with whether T would become resident in P and then the tiebreaker in Art.
4(2). Some answers were confused by the discriminatory rule (which would not apply
to T) but others used it to show the depth of their understanding, particularly with
respect to Art. 24. Most candidates identified that the UN Model would not make
much difference unless it was found that T was conducting a business, in which case
Art. 12A might be relevant.
Question 4 This was an essay question, answered by six candidates, on the
relationship between Art. 9 and the OECD mantra of value creation. One fabulous
answer engaged with the issue, recounting and referencing the OECD focus on value
creation and then attempted to compare Art. 9 including its relationship with Art. 7.
Other answers struggled in identifying a relationship, some discussed value creation
and Art. 9 separately and the least impressive answers engaged in a common tactic of
not really answering the question at all and just saying a lot (or relevant stuff) about
Art. 9.
Question 5 This problem question, answered by 7 students, required students to
engage with issues in characterising income. Some students presumed the payments
from the subsidiary were royalties, others income from immovable property, others
business profits, others dividends (in part) and even other income. Of course, the best
answers investigated this range. Similarly, were the sales proceeds capital gains,
income from immovable property or business profits. Most students were well
rehearsed on the interest payments although better answers kept the taxation of the
interest (Art. 11) separate from its deductibility (Arts 9 and 24). Taxation and relief in
E were done well, and best answers engaged with difficult issues under Art. 23A
depending on characterisation of the payments.
Question 6 This essay question was not answered.
Question 7 . This was the usual difficult problem question with the risks involved
with that. All four answers engaged with the question and recounted a lot of relevant
material. Some, however, misfired and struggled applying that material to the facts.
One answer gave a crystal-clear statement of what the structure was trying to achieve
(low taxation in H while avoiding potential of Art. 12A under H-M treaty). Another
answer went further and then proceeded to apply the treaties with meticulous
precision, a starred effort. The risk was that M considered the fee as paid to Sub and
not S and so applied Art. 12A of the H-M treaty. Yes, this would be a mismatch and R
might fully tax the fee anyway. Deductibility of the fee paid to sub was less well done
although most spotted that transfer pricing might be an issue. Some noted the
circularity of the payments between S and Subco, a possible constructive dividend or
application of a treaty or domestic GAAR. Better answers applied CFC rules and
noted the requirements of the ATAD.
July 2021
LLM Examination 2021
Paper 3
INTERNATIONAL COMMERCIAL LITIGATION
Report on the Examination
___________________
General observations __________________ As in previous years, this year’s examination sought to test the candidates’ technical knowledge,
their awareness of the practical dynamics of the subject, and their understanding of underlying
issues of principle. It offered a range of questions intended to test each of those aspects of the
course, and to allow candidates to choose questions reflecting their interests.
A substantial majority of candidates (84%) obtained a 1st or 2.1 in this year’s examination. There
were relatively few egregious errors, and most answers were relevant and on point. The difference
between scripts generally reflected the fact that some answers provided less discussion of the case
law, or lacked technical detail, or omitted to address some key component in a question. In a few
instances candidates did not properly analyse problem questions; they sought to give an account of
the law without answering the question posed, or omitted some aspect of the case. Some answers
to essay questions lacked the overarching analysis, explication of themes, or attention to the precise
wording of the question that might have been expected. The best scripts showed an independent,
critical, reflective view of the material, and a mature understanding of underlying issues of practice
and principle. They were the scripts of candidates who had ‘made the subject their own’.
The questions ____________
Question 1 concerned the extent to which the English court, which has jurisdiction pursuant to
Article 4 of the Brussels Regulation, can stay proceedings to give effect to a jurisdiction agreement in
favour of a third state. The question raised the issue of the English court’s approach to the
controversial doctrine of ‘reflexive effect’ and required consideration of the position both with
respect to an exclusive and non-exclusive jurisdiction agreement. A comprehensive answer would
have considered the issues by reference to the CJEU’s judgment in
Owusu, the English authorities
(including
Ferrexpo,
Catalyst,
Gulf International and
Kolomoisky - and the extent to which the
reasoning in
Kolomoisky might undermine the result in
Gulf International), as well as the Schlosser
report,
Coreck and
Konkola.
This was not a particularly popular question. The better candidates demonstrated a good
understanding of the shape of the law and engaged with the differing approaches adopted by the
authorities on key issues as well as considering the underlying principles which could be deployed to
justify reflexive effect.
1
Question 2 was quite a popular question which focussed on the approach under the Brussels
Regulation to asymmetric jurisdiction agreements, which are widely used in practice. It invited
detailed consideration of the applicability of Article 31(2) of the Regulation and the judgments of the
English court in
Etihad. Comprehensive answers considered each of the four arguments raised in the
question. The question required an examination of the contrasting approaches to the validity of
asymmetric jurisdiction agreements of the English court (in cases such as
Hestia) and the courts of
other Member States (most notably the Cour de Cassation in
Rothschild), as well as consideration of
the effectiveness of such agreements under EU law (Article 25 - and Article 17 of Brussels
Convention – and
Meeth v Glacetal). An important element was analysis of the jurisdiction clause as
two separate agreements - a non-exclusive agreement for the benefit of the Bank and an exclusive
jurisdiction agreement for claims brought by the Borrower - which required separate construction
and application. The access to justice issue directed candidates to consider Article 6 of the ECHR
together with the relevant caselaw (
Hestia, and
The Kribi).
The best candidates addressed the four specific issues in the context of an overall framework which
facilitated discussion of the controversial issues of policy and principle which arise in the context of
asymmetric jurisdiction agreements. Some candidates did not engage sufficiently with the caselaw
or the issues to which the question was directed.
Question 3 was an essay question in two parts which invited consideration of issues of practice and
principle on two important aspects relating to jurisdiction under common law/the CPR: establishing
a jurisdictional gateway when permission to serve out is sought; and seeking a stay of English
proceedings in reliance on a jurisdiction agreement in favour of a foreign court. The first part
required critical engagement with the Court’s approach to the gateways both on issues of scope (a
matter of statutory construction, and the extent to which
forum conveniens should impact on the
approach) and issues relating to the establishment of jurisdictional facts (focussing on questions of
burden and standard of proof by reference to the appellate authorities on the good arguable case
test:
Canada Trust, Brownlie, Goldman Sachs). The second part focussed on the Court’s approach to
an application for a stay in the presence of a jurisdiction agreement. It required examination of the
approach of the court to exclusive and non-exclusive jurisdiction agreements – and whether it differs
from a standard
Spiliada analysis – as well as consideration of the justification for the court’s
approach in each case.
This was a popular question with some excellent answers which demonstrated a detailed
understanding of the legal framework and the tensions inherent in the different elements of the
English court’s approach to jurisdiction. Certain candidates underestimated the need to demonstrate
an understanding of the law as well as to engage with the controversial issues in the caselaw and
commentary.
Question 4 was an essay question concerning two principles underlying cross-border proceedings in
England, justice between the parties and comity. Such questions may be approached in a number of
ways, but a full answer would have addressed both justice and comity, in relation to both
adjudicatory discretion and transnational injunctions. It would have considered the normative
foundations of the
forum conveniens doctrine, as articulated in
The Spiliada, and the equitable
nature of injunctive relief crystallised in Section 37 Senior Courts Act. It would have addressed
inter alia the charge that the doctrine of
forum non conveniens potentially denies access to justice
(addressed in
Lubbe v Cape), and disparages foreign legal systems, not least in the operation of its
second limb (a matter addressed in
Vedanta). It might have considered the potentially exorbitant
nature of Section 25 jurisdiction (addressed in
Mobil), and the familiar problems of comity exposed
in such cases as
Star Reefers and
Refco. The best answers offered not merely a catalogue of problem
2
areas but set the law in a wider analytical framework; the very best went beyond considering the
elements of the question separately and addressed the tension inherent in the question between
achieving justice and respecting comity.
Question 5 concerned an application for an injunction to restrain foreign proceedings. Given that
the English court was already seised in prior substantive proceedings no problem of jurisdiction
arose (although the question required that point to be made). Issues arose concerning the grounds
for any relief: was relief available to enforce the (activated) non-exclusive jurisdiction agreement, or
the governing law clause; if not, were the foreign proceedings vexatious given that they were
subsequent to the English proceedings, were founded on Narnian law, and that Amco was unable to
join Thetaco in those proceedings? Issues also arose concerning the court’s discretion: what was the
effect of Amco’s delay (as a matter of justice to Ramco and comity); what was the significance of the
fact that Ramco was unable to sue Gammaco as a third party in the English proceedings? How would
a court balance the interests of Ramco (unable to join Gammaco in England), with Amco (unable to
join Thetaco) in Narnia?
The question required a detailed exposition of the relevant law and an assessment of how the
English court might evaluate the competing considerations in arriving at its conclusion. It prompted
some excellent answers which analysed the facts with acuity and demonstrated a detailed
understanding of the law. The best answers displayed detailed familiarity with the authorities and
how they might or might not apply in this case. Some properly addressed the enforceability of any
injunction granted on the facts, and noted that Amco would be well-advised to ensure that its
parent, Gammaco, agrees to submit in the English proceedings, thereby removing both Ramco’s
legitimate interest in the foreign proceedings and any injustice to Ramco were the injunction
granted.
Question 6 concerned an application for a worldwide freezing injunction and disclosure order in
support of foreign proceedings. It required especially consideration of the difficult case law
concerning Section 25 jurisdiction, and the practical considerations which concern applicants in such
cases (including those relating to the effectiveness of such relief). These issues would have been
familiar to any candidate; what differentiated answers was the sophistication of their account of
jurisdiction, the application of the authorities to the facts, and their grasp of the pros and cons of
such relief. The best candidates showed an excellent understanding the cases (seeking to explain,
reconcile and distinguish them), and placed the problem in its practical context (emphasising such
matters as the importance of the ancillary disclosure order, an applicant’s exposure pursuant to the
cross-undertaking in damages, and the burden of making full and frank disclosure).
Question 7 was a popular essay question which concerned the English court’s approach to foreign
law. It invited critical consideration of the authorities which reveal inconsistencies in approach and
terminology resulting in uncertainty in the law – and controversy in practice. There were various
possible ways of answering the question. A comprehensive answer would have examined the
inconsistent approaches of the courts at appellate level (
Shaker,
Belhaj,
Opo,
Brownlie 2); considered
the treatment of foreign law as ‘fact’ as well as the different formulations of the rule (default
rule/presumption) - and the extent to which the issue is properly viewed as procedural or
substantive.
3
The question was generally well answered with several excellent answers. The best candidates
demonstrated a sophisticated understanding of the issues and engaged with the authorities and
issues in an analytical and critical manner.
Question 8 concerned a number of issues arising from proceedings to enforce a foreign judgment in
England. At its core were five principal matters: did the English court have jurisdiction to enforce
given that Domco had no assets in England; had Domco submitted to the foreign court’s jurisdiction,
thereby providing a basis for enforcement and removing the protection of the English jurisdiction
agreement; could Domco nonetheless mount a defence, by alleging that the judgment had been
obtained by fraud, or that the amount awarded was arrived at without any calculation of Domco’s
loss; would it have made a difference had Domco’s contract with Comco been subject to Arcadian
law?
The question required a detailed exposition of the law in relation to each of those questions, and an
assessment as to how an English court would answer them. It also required candidates to describe
the procedural context for such proceedings. Most candidates provided comprehensive answers
which engaged with the question, though some omitted to address all of the core issues (surprisingly
given that were clearly cued in the facts provided), or to do so in insufficient detail. The best answers
provided a detailed account of the leading cases, especially on Section 32, submission and the
defence of fraud, and engaged with the facts practically and with acuity. Some noted that fraud
might be alleged against the foreign court had it knowingly accepted incorrect evidence relating to
the jurisdiction agreement; some noted that Domco’s application to strike out might be
characterised as an attempt to rectify a procedural error rather than as submission on the merits.
Question 9 concerned the CPR jurisdiction rules and invited candidates to consider briefly the
ground for establishing jurisdiction (requiring consideration of
Teekay) and to focus on whether
England was the
forum conveniens for the claim against Dandyco.
A comprehensive answer would
have described the relevant law on the court’s approach to
forum conveniens and applications for
stays in general, before examining individually the factors highlighted by the question - in each case
supported by reference to the key authorities. In addition, the novel issues of foreign law invited
engagement with the English court’s approach to foreign law, particularly in the context of the
constraints of interlocutory proceedings (limited evidence, very limited scope for oral evidence/cross
examination). The question required candidates to address whether the English court’s approach
was unprincipled and unpredictable.
This was a popular question which was generally well answered. The best candidates approached
the question analytically (briefly setting out the wider legal framework before considering in detail
the nature of the court’s evaluative task and the extent to which each of the specific factors would
weigh in the court’s assessment of
forum conveniens) and critically examined the Court’s approach.
July 2021
4
LAW OF RESTITUTION
EXAMINER’S REPORT 2021
General observations
Twenty-six candidates took the Law of Restitution examination, which consisted of nine
questions of which candidates were required to answer three. The examination was open book
with candidates given a window of 24 hours to complete the exam, with a limit of 5,000 words.
The quality of the scripts was generally very good, with one candidate being awarded a
distinction mark, 12 candidates awarded first class marks, 12 awarded upper second class
marks (of which a significant majority were over 130), and one awarded a lower second class
mark. The average mark was 138.
The Examiner and Assessor were generally very impressed with the performance of the
candidates. It was clear that most of them had a good understanding of the law, had read widely,
were able to apply the law accurately and were also able to engage critically with the policies
which underlie the law. What distinguished the exceptional performances from the very good
was attention to detail in the exposition of the law (particularly as regards the interpretation of
judgments), the ability to apply the law to unorthodox scenarios, engagement with doctrinal
and theoretical controversies, and a preparedness to express confidently the candidate’s
opinions, sometimes in an original way.
Bearing in mind that this was an open book exam, the Examiner and Assessor expected
candidates to do more than simply restate what they had been told in lectures or read in
textbooks. The questions were designed to test the candidates in their ability to engage with
issues in the law which were uncertain or controversial. Better answers showed that candidates
had considered carefully how they might resolve these uncertainties or what their position was
on a particular controversy, making appropriate use of primary and secondary materials.
Weaker answers tended to list a number of cases or articles, sometimes very extensively,
without providing comment or sometimes even a conclusion.
Further, since the scripts were subject to a word limit, some weaker answers of problem
questions tended to spend too long on the basics, including laborious analysis of the unjust
enrichment ‘formula’, which did not leave the candidate enough time to consider and analyse
the key issues in the question. It is important that candidates are able to identify the central
issues, and then analyse, apply and, where appropriate, criticise the application of the law.
Observations on particular questions
1. Whilst only a few candidates answered this question, some thoughtful answers were
produced which considered carefully whether or not unjust enrichment can be considered to
have a unifying function. The question gave candidates an opportunity to reflect on a variety
of secondary materials. Better answers also considered the benefits or disbenefits, by reference
to the cases, as to whether there is sufficient commonality in areas traditionally treated as falling
within the law of unjust enrichment to enable them to be treated as connected. The Examiner
and Assessor were not concerned whether candidates adopted a sceptical or an evangelical
approach, or navigated between these two extremes; as always, the nature of the argument and
the evidence used to support it was what mattered. The most sophisticated answers adopted a
nuanced approach, accepting that parts of the traditional canon should be treated as unjust
enrichment and that other aspects did not benefit from an unjust enrichment explanation.
2. This was the most popular question on the paper, with all but one candidate answering it.
Candidates were required to consider critically two of three quotations, relating to the
distinction between mistake and misprediction; total failure of basis and absence of basis as a
ground of restitution. Whilst all candidates were able to state the law accurately and identify
the controversies, better candidates went beyond merely describing and engaged critically with
the quotations, by reflecting on how the law should be interpreted and applied often with
reference to the secondary literature as well.
3. Whilst not a popular problem question, this did produce some good answers. Part (a) required
candidates to identify the relevant enrichment and determine whether it would be possible for
the recipient of the service to subjectively devalue it and then whether this could itself be
defeated by being an incontrovertible benefit or freely accepted. Part (b) required candidates
to consider whether the third party recipients could be considered to have been enriched at the
expense of the payer of the money. It was also important to consider whether an appropriate
ground of restitution could be identified and whether a defence of change of position might be
available to both defendants. Some candidates considered whether a claim might lie against
Peter, the direct recipient of the money. Peter was bankrupt and anyway there was a contract
of loan between Hannah and himself, which would negate a personal claim. However, it was
legitimate to consider whether a proprietary claim might lie by reference to a
Quistclose trust,
since the money had been paid for a purpose which had failed. Candidates were not expected
to consider this issue, but were rewarded if they did.
4. This was a very popular question which was considered by most candidates. Unfortunately
there was an error on the paper, with part of a sentence from the third part of the question
omitted in the published version of the paper. The Examiner and Assessor agreed that no
candidate would be penalised if they adopted an interpretation of the question which was
different from that intended. In fact, all candidates interpreted the question as had been intended
and generally answered the question well, especially the third part. Part (i) required candidates
to identify a mistake and consider defences. A number of questions seemed confused as to the
role of Cynthia, assuming that it was her mistake which caused the additional payment to be
made. In fact, Cynthia’s involvement related to a defence, notably estoppel. Some candidates
only considered change of position or estoppel, with only a few considering both and
determining which would be the preferable defence and why. Part (ii) required candidates to
consider whether mistake or
Woolwich was the preferable ground of restitution, which required
consideration of different defences, or defences being interpreted differently, depending on the
relevant ground. Part (iii) required candidates to consider the impact of a mistake as to tax
advantages on whether a voluntary transfer to a trust could be set aside. This required careful
analysis of the decision of the Supreme Court in
Pitt v Holt.
5. This question was attempted by a third of candidates. It elicited some outstanding answers
and some which missed significant issues. Part (a) required candidates to consider whether a
claim in unjust enrichment might lie or whether the claim might be barred because of the
continued operation of the contractual regime. This required particular consideration of the
decision of the Court of Appeal in
Barton v Gwyn-Jones. A surprisingly large number of
students failed to mention this case at all. Others analysed the case very well indeed and
considered whether in each scenario a claim outside the contract might lie. Part (b) required
candidates to unpack the facts carefully and determine whether a total failure of basis might be
identified and whether benefits received might be considered to be collateral or could be
apportioned. It was also important to determine whether it mattered that the contract was
breached by the defendant to the claim or the claimant.
6. This essay question on contribution and recoupment was answered by a third of candidates.
It elicited some very thoughtful answers on whether recent developments in the law of unjust
enrichment had any impact on whether recoupment and contribution could be properly
considered to fall within the law of unjust enrichment. Surprisingly only a few candidates
distinguished clearly in their answers between recoupment and contribution, with many
assuming that they operated in precisely the same way. Better answers considered when
contribution and recoupment applied and how they operated and then considered whether they
could be explained with reference to unjust enrichment. There was some very good analysis of
the meaning of transfer of value. Analysis of incidental benefit was often less good, with some
candidates failing to define precisely what an incidental benefit was and whether a payment to
discharge a liability owed by the claimant might be considered to be an incidental benefit and,
if it was, whether this should operate to defeat a claim in unjust enrichment.
7. Whilst not a popular essay question it did produce some very good answers. Weaker answers
tended to simply narrate what had been said in lectures. Better answers reflected on this
material and made reference to a variety of secondary literature. Part (a) required candidates to
consider whether the language of justice and equity might still assist in identifying and
interpreting defences. Part (b) required candidates to consider whether the ground of restitution
was relevant to the interpretation and operation of defences. All candidates considered the
relevance of a defendant being a public authority relying on
Woolwich or a mistake. But it was
also appropriate to consider whether defences were affected by whether the claim was generally
one in mistake, failure of basis or contribution or recoupment.
8. Only one candidate attempted this question on aspects of proprietary restitutionary claims.
9. No candidate attempted this question on the role and relevance of corrective justice.
Examiner
LLM Paper 5 Economics of Law and Regulation: Examiners’ Report
The focus of LLM Paper 5 is on a set of linked topics in the economics of law. Some of these are
theoretical (the Coase theorem; game theory and the law; behavioural economics and the law;
systems theory and legal evolution; legal origin theory), some are methodological (statistical and
other empirical approaches to law; law and machine learning; law and social ontology), and some
are contextual or topic-specific (the economics of private law, company law and labour law; law and
technology; law and development). Candidates are encouraged to read widely from the core
materials and to do their own research on topics of particular interest to them.
The 2021 exam contained 16 questions addressing the topics covered on the course, from which
candidates were instructed to answer three. The broad scope of the exam and the wide range of
topics covered in the context of the relatively small number of required answers was intended to
provide a flexible format for candidates, enabling them to focus on particular topics of interest at
the same time as giving equal weight to the issues presented on the course.
15 candidates took the exam. Nine were awarded Firsts and six 2-1s so the quality was high. First
class scripts demonstrated a high level of conceptual understanding, an ability to synthesise
different materials, clarity of expression, reading beyond the core texts, and originality of thought.
Question 1, on the Coase theorem, was popular (eight answers, five of them Firsts, three 2-1s). The
question invited candidates to consider not just the range of possible interpretations of the Coase
theorem identified in the very large literature discussing it, but also to reflect on its methodological
implications when discussing precisely why it has proved so highly influential among in both legal
and economic scholarship.
Question 2 was concerned with the debate over the meaning and significance of the rationality
axiom, and as such required a clear analysis of the concept of rationality in neoclassical economics
(noting, for example, that it is not a synonym for ‘selfishness’) alongside an understanding of how
institutional and behavioural approaches have led to its modification. It was well answered (two
Firsts and two 2-1s).
Question 3 invited a discussion of the implications of game theory for an understanding of the
relationship between positive or ‘state’ law on the one hand, and social norms on the other, and of
an the role played by legal rules in facilitating and shaping markets. It was a popular question
attracting a range of answers (one distinction, two Firsts and four 2-1s), with the 2-1 scripts generally
displaying a more descriptive approach.
Question 4 was concerned with theories of legal evolution. It was very well answered (three Firsts
and 2-1), with candidates taking up the invitation to discuss Dennett’s account of evolution and its
application to law.
Question 5 invited discussion of diverse law and economics approaches to private law including
those of Posner, Calabresi and Melamed, and Hayek. It received one outstanding answer (a First).
Question 6 was a methodological question centred on the debate over the feasibility of measuring
legal phenomena through ‘leximetric’ data coding. It received one good answer (a 2-1).
Question 7 required candidates to give a clear account of the theory of legal origins as developed by
Shleifer and his colleagues, explain its theoretical basis, and provide an assessment of various
critiques and modifications of the theory. It was very well answered (four Firsts).
Questions 8 and 9 covered the law and technology topics. Question 8 directed attention to Alarie’s
theory of the legal singularity and was well answered (a 2-1). Question 9 required candidates to
explain the nature of machine learning as a statistical tool or method, and to explain the issues at
stake in its use to automate aspects of legal decision making. It was well answered (two Firsts and a
2-1).
Questions 10 and 11 were on the development and inequality themes and were very well answered.
Question 10 (two Firsts and a 2-1) invited discussion of debates around the role of the rule of law in
underpinning industrialisation in the global North and over its relevance to growth and development
in middle income countries including China. Question 11 (a distinction and a 2-1) required a clear
explanation of Piketty’s hypothesis and its implications for earlier understandings (associated with
Kuznets among others) of the long-run relation between inequality and capitalist economic
development.
Question 12 centred on key issues in the debate around the economics of labour law and specifically
asked candidates to consider the validity of economic arguments in favour of this mode of
regulation. It was well answered (one First class answer).
Question 13 focused attention on the continuing debate over the economic significance of the
corporation as both legal form and economic institution and was well answered (a First and a 2-1).
Questions 14 and 15 invited discussions of method, on statistical approaches to law and the social-
ontological approach to law respectively. No answers were attempted to these questions.
Question 16, on the emerging law and economics literature on the Covid-19 emergency, was quite
popular, with three answers, a First and two 2-1s.
6 July 2021
LLM Examiner’s Report 2021
Paper 6 - Law and Information
Thirty-six candidates took this paper which, for the second year running given the Covid-19 crisis,
was administered in a completely open book online format over a 24-hour window. Ten candidates
achieved a First, two a 2.2 and twenty-four a 2.1 mark (a considerable majority of which were above
the midpoint). As in previous years, those who achieved a high mark answered the precise question
posed in a clearly structured analytical fashion deploying their knowledge of legislation, case law,
regulatory outputs, literature and other sources as relevant.
Question One
ʻInformation of a confidential nature or which affects the privacy of a natural person should only be
published for journalistic purposes when it concerns a matter of manifestly objective public interest.ʼ
Discuss with reference to the law of confidentiality, the tort of the misuse of private
information and data protection law.
15% of students answered this question with an average mark of 68%. The question required a close
analysis of the different tests applicable in the three areas of law as to when material can lawfully be
published for journalistic purposes.
In relation to breach of confidence, there must either be no obligation of confidence or the public
interest in disclosure must outweigh the public interest in enforcing the obligation. Although there
are cases which identify public interests, there is certainly no requirement of “manifestly objective”
public interest. Indeed, the courts tend to consider multiple considerations. These include the
subjective belief of the defendant (even if they were mistaken) as well as the procedures leading to
publication. In relation to the Misuse of Private Information (MoPI), it is clear that journalists might
publish information affecting the privacy of a natural person if either (i) there was no reasonable
expectation of privacy or (ii) if, on an intense analysis of the facts, freedom of expression
outweighed the privacy interests at stake. Under case-law emanating from the European Court of
Human Rights, it is clear that this “ultimate balancing test” requires, inter alia, a contribution to a
debate of general interest (see eg
Springer;
Von Hannover (No 2) (ECtHR) referring to this as the
“essential criterion”). In the context of data protection it was necessary to consider the concept of
“reasonable belief” (DPA 2018, sched 2, para 26(2)) – “the controller reasonably believes that the
publication of the material would be in the public interest”) and the role in that regard of the
specified codes of practice.
Question Two
ʻToday, most individuals receive information about other natural persons from social media sources.
Neither defamation nor data protection law are fit for purpose when it comes to dealing with
allegedly inaccurate and reputation-damaging statements made on such forums.’
Discuss.
Nearly 2/3rd of candidates answered this question. Of these, more than half received first class marks
and the average mark was a very high upper second.
1
Given that the question focuses of statements made on social media forums, an important
preliminary distinction was between the law applicable to the maker of the statement and that
applicable to the operator of the forum (and possibly third parties such as search engines). Most
candidates agreed that the two regimes were not “fit for purpose”, but suggested this was for
different reasons. Many argued that defamation law did not reach all allegedly inaccurate and
reputation-damaging statements, pointing to
e.g. the serious harm threshold as well as the
publication on matter of public interest, honest opinion and truth defences. With respect to
platforms and third parties, candidates frequently referenced the host shield and website operators
defence, and some mentioned the
Metropolitan International Schools decision. The tendency was to
treat any failure to prohibit making (or retaining) of such statements on these fora as problematic. In
contrast, with respect to data protection, most candidates referred to the breadth of the concept of
data protection including that it was not limited to inaccurate or reputation-damaging data.) Many
considered the CJEU’s narrow interpretation of the household exception and constrained
interpretation of the journalistic derogation (as least as interpreted in some of the literature),
concluding that posters of statements containing personal data would oftentimes be caught by the
regulatory regime (and its corresponding duties). Most also considered whether and when
platforms/search engines would be treated as controllers and the potential applicability of the
immunity for hosting services. The overall conclusion was often that as a matter of law, data
protection law covered many more such statements and imposed obligations on many more
relevant actors. In this analysis, there was a tendency to rely very heavily on an article by David
Erdos.
The best candidates considered carefully the notion of “purpose” in the phrase “fit for purpose”.
Some identified that neither defamation law nor data protection law was solely concerned with
preventing the making of “allegedly inaccurate and reputation-damaging statements” made on such
fora. Indeed, the key to a high quality answer was to recognise the distinct purposes of these areas
of law, in particular, appropriately to reconcile the desire to protect privacy and reputation with the
importance of freedom of expression and freedom to conduct a business. Such more nuanced
appreciation of the notion of “purpose,” made it possible to reflect on whether defamation law was
more “fit” in its treatment of (“dealing with”) such statements that data protection law, because the
former took a more targeted approach.
Question Three
ʻThe introduction of the serious harm threshold in section 1 of the Defamation Act 2013 was a
welcome step forward in ensuring that freedom of expression is adequately protected and brought
defamation law more into line with protections afforded to expression under the tort of the misuse of
private information.ʼ
Discuss.
About 1/3rd of the cohort attempted this question.
Most candidates discussed the reasons behind introducing the serious harm threshold, in particular
whether this was done in order to protect freedom of expression and how far it went beyond the
existing jurisprudence (see
Lachaux and the pre 2013 cases of
Jameel and
Thornton (“qualification or
threshold of seriousness”)). They then went on to consider the role of freedom of expression in the
“ultimate balancing test” in MoPI, usually recognising a very significant difference between this and
the “serious harm threshold”, and concluding that the 2013 Act failed to align the two regimes. Only
2
a few – and certainly the best – answers considered whether there was any basis for locating a
serious harm threshold in MoPI’s requirement of a “reasonable expectation of privacy”. Indeed, in
M
v Secretary of State for Work and Pensions [2006], [83], in the HL, Lord Walker explicitly derived a
requirement of some seriousness from the use of the word “respect” in Article 8. The requirement is
concretised in MoPI through the various factors mentioned by Lord Phillips MR in
Murray v Big
Pictures (the JK Rowling case).
Question Four
ʻ[O]btaining consent … does not negate or in any way diminish the controller’s obligations to observe
the principles of processing enshrined in the GDPR [General Data Protection Regulation], especially
[those set out in] Article 5 of the GDPR with regard to fairness, necessity and proportionality, as well
as data quality.ʼ (EUROPEAN DATA PROTECTION BOARD)
Discuss, considering in so doing also why any controller processing personal data may rely on
consent. In your discussion, take account of both the UK General Data Protection Regulation and the
Privacy and Electronic Communications Regulations.
This question was answered by ten candidates with a spread of marks which was similar to the paper
overall. Good answers carefully interrogated the quote and systematically explored why and when
consent was likely to be relied upon. Turning to the first aspect, it is clearly that the case that
securing consent does not displace the data protection principles and so this core ʻpaternalisticʼ
aspect of the regime remains. Nevertheless, notwithstanding the quote, such consent can alter the
interpretation of at least some of the principles. This is clearest in relation to purpose compatibility
which is deemed met if consent for a new processing purpose is secured. However, it is also likely to
arise as regards fairness and could even be relevant to such issues as data minimization.
Nevertheless, given the stringent definition and conditions for consent in the UK GDPR (which
should have been explicitly explored with reference to Articles 4(11) and 7 of that instrument) it may
still be questioned why consent would be invoked by controllers. As regards ordinary processing
whose legal grounds are set out relatively permissively in Article 7 of the UK GDPR there has been
something of a flight from consent. Nevertheless, as good candidates recognised, consent (which
must be explicit) is one of only two broadly available special legal grounds set out in Article 9 and is
also generally required for the storing and accessing information on terminal equipment under the
Privacy and Electronic Communications Regulations (PECR). Weaker candidates often confused
consent with the exercise of mere choice on behalf of the data subject and did not clearly articulate
the specific rationale for using consent when processing sensitive data and under PECR.
Question Five
ʻ[I]n the era of datification, it may be unavoidable that large data sets will contain patterns
coinciding with sensitive traits because they cover “activities resulting from (protected) opinions or
beliefs”. If these patterns can be found in collections of non-sensitive data, the safeguards against
the processing of sensitive data may become less effective.ʼ (RHOEN & FENG)
Discuss, considering how the sensitive data regime within data protection law might work in
this emerging context and how, if at all, the law should be adjusted.
3
This question was answered by fourteen candidates, with three candidates achieving a First and the
rest a 2.1 mark (eight above the midpoint). A good answer depended on a careful analysis of the
quote and, following on from that, discussion of potential law reform. It was vital for candidates to
consider the generally wide
nexi of “revealing” or “concerning” within the sensitive data categories,
as well as the broad meaning of personal data which can include data which is inferred including
through an algorithm. This needed to be considered alongside Rhoen and Feng’s argument that an
important distinction might be drawn between processing and data and suggestion in recital 51 of
the GDPR (which remains relevant also to the UK GDPR) that a somewhat flexible approach might be
indicated at least in relation to photographic data. Whilst legal uncertainty clearly remains, it is
quite possible that correct application of the regime mandates that its safeguards apply in many
instances where big data algorithms are running. The claim that these safeguards might become
“less effective” needed to be analysed in this context considering also other potential risks including
that the lawful utilisation of big data may be impeded especially where measures need to be taken
to guard against any discriminatory aspects. Turning to law reform, alongside additional new legal
grounds for processing based on the substantial public interest, candidates usefully discussed the
potential for a more intention-based or risk-based approach. However, it was vital that they related
this back to the specific issue of datafication and took full account of the nature of other aspects of
the data protection system (e.g. Data Protection Impact Assessments and the possibility of prior
consultation with the data protection authority).
Question Six:
ʻThe understandable conclusion that notice does not work in practice has led skeptics to reject notice
entirely as a regulatory strategy – an action that would send regulators back to the proverbial square
one.ʼ (CALO)
Discuss in relation to the transparency rules on proactive notice established in articles 12, 13
and 14 of the UK General Data Protection Regulation.
This was the most popular purely data protection question on the exam, being answered by twenty
candidates. It was also relatively well done, with six First Class marks, all the rest 2.1s and all but
two of these above the midpoint. Clearly, notwithstanding the quote and understandings put
forward within some of the literature, the UK GDPR has far from rejected proactive notice. Good
answers comprehensively explored the rules developed within the instrument including on
individual proactive notice in the case of direct collection of data (art. 13), individual proactive notice
in other cases (art. 14(1)-(2)) and an expectation of general notice in these latter cases where
derogations of disproportionate effort, serious impairment of objective etc. apply (art. 14(5)(b)).
They further considered purposes of these rules, whether they worked in practice and whether their
abandonment would send regulators back to “square one”. Clearly assessing the potential for notice
to realistically ungird the possibility for some individual choice was central here but it was also
important to explore other purposes linked to notice including instilling controller discipline,
providing information for civil society and providing a starting point for regulatory analysis.
Consideration was often usefully given to potential development of notice in line with article 12
standards including layered notices and the use of machine-readable icons. Poorer answers
generally did not comprehensively analyse the proactive notice rules and/or confused this with
either data subject consent or reactive transparency (subject access).
4
Question Seven
ʻThe principle of purpose limitation – which includes the notion of compatible use – requires that in
each situation where further use is considered, a distinction be made between additional uses that
are “compatible”, and other uses, which should remain “incompatible”. The principle of purpose
limitation is designed to offer a balanced approach: an approach that aims to reconcile the need for
predictability and legal certainty regarding the purposes on the one hand, and the pragmatic need
for some flexibility on the other.ʼ (ARTICLE 29 WORKING PARTY)
Discuss in relation to the UK General Data Protection Regulation, including in your analysis
consideration of how purpose limitation interacts with the transparency rules and data subject
control rights.
This question was answered by eleven candidates with a wide mix of outcomes. Two achieved a
First, two a 2.2 and the rest a 2.1 (with all but two above the midpoint). The question principally
required a close consideration of the UK GDPR’s provisions on purpose limitation including that
purposes be specific, explicit and legitimate and, most particularly, that any processing be
compatible (or in the wording of art. 5(1)(b) as opposed to art. 6(4) “not incompatible”) with the
initial purpose(s). It was important that candidates looked at the test set out article 6(4) in depth,
noting its interpretive override on the basis of consent or article 23 restriction, and considering
whether this could even in principle provide a good balance between predictability/certainty and
flexibility. Some consideration of the limited paucity of enforcement here was also apposite, with
candidates helpfully discussing the management of both Google’s privacy policy changes and the
ongoing issues concerning webmaster notification of deindexing. As regards the interaction with
transparency and control rights, it was necessary to discuss the content and functioning of the rules
concerning renotification where purposes are intended to change (under art. 13(3) and art. 14(4)).
Weaker candidates often failed to focus on article 6(4) and considered transparency and control
rights only in general terms.
Question Eight
ʻThe UK General Data Protection Regulation lacks clear aims and this seriously and negatively effects
both its internal development and its relationship with other parts of information law including
defamation law and the tort of the misuse of private information.ʼ
Discuss.
Only one candidate answered this question. It necessitated a focus on the core purposes of the UK
GDPR including its genealogy in European data protection instruments going back to the 1970s.
Notwithstanding the removal of the EU Charter from UK law following Brexit, the UK GDPR gives
priority to the right to the protection of personal data. Although it is clear that this right has a much
broader informational scope that traditional information rights relating to natural persons such as
privacy and reputation, there is clearly a significant overlap. The core content of the right can be
conceptualised in both a more ʻautonomistʼ and ʻpaternalistʼ form, all other relevant fundamental
rights and freedoms of natural persons also need to be protected and there is also recognition of the
need to take into account the imperative of the “free movement of personal data” (see UK GDPR,
art. 1). These are manifestly wide and complex aims and it was for candidates to consider whether,
and in what ways, that constituted both a negative and a positive for the UK GDPR’s internal
development and also its relationship with other parts of information law.
5
Question Nine
An administrator at the Edinton Institute of Law and Ethics accidentally emails a spreadsheet with
information on thirty participants who attended its seminar on ʻThe Future of Religion and the Lawʼ
to the two hundred members of its event marketing list rather than the conference centre which had
been responsible for organizing this in-person event. The list contains names, email addresses and
special dietary requirements as inputted by these thirty participants. This reveals that Dr Sarah Reed
had specified ʻno meat other than kosher pleaseʼ, whilst several others had variously recorded gluten
and/or nut allergies. Sarah is a prominent academic at the University of Camfens’ Department of Law
and has previously argued publicly that traditional kosher slaughter practices conflict with animal
welfare and should be changed. Later that same day, an account named @animalwelfarenow posts
on Hibook, a popular micro-blogging site, the following message alongside a screenshot of Dr Reed’s
entry on the spreadsheet:
Kosher meat is cruel to animals. Dr Sarah Reed said she agreed with this but is now exposed as a
hypocrite!
Sarah is alerted both to this post and to the earlier distribution of the spreadsheet by email and
immediately contacts Yash Sarkar, the Director of the Edinton Institute of Law and Ethics, to
complain. She includes a copy of both the post and the email in her message. Yash, who was
unaware of either the post or the email prior to Sarah’s message, checks Hibook and can see that the
post in question has been reposted twenty times. He also sees that it has already been indexed on
Loggle, a popular internet search engine.
Provide an analysis of both Sarah’s and the Edinton Institute of Law and Ethics’s legal
position in relation to the above, including any relevant duties, rights and remedies under, as
appropriate, data protection law, the law of confidentiality, defamation law and the tort of the
misuse of private information.
About a quarter of candidates attempted the problem question. The average mark was 66%. As
there are a large number of parties to consider (Sara v Edinton, v animalwelfarenow, v Hibook, v re-
posters, v Loggle), as well as causes of action (or other obligations), good candidates needed to get
to the key points quickly and efficiently.
As regards the GDPR aspects particular aspects which were worthy of note were (1) the provisions
on data breach notification to the ICO (UK GDPR, art. 33) and also the data subject insofar as these
require further details on the measure taken or proposed to be taken to address the breach (UK
GPDR, art. 34), (2) the law on search engine deindexing, especially under Art 17(1)(c), UKGDPR, (3)
potentially other issues such as the application of GDPR to social media including the responsibility
of the platform and individual users in light of the household exemption.
As regards confidentiality, a key question was whether Edinton was under an obligation of
confidentiality, whether the information was confidential (or trivial) and whether third party
recipients would have appreciated there had been a breach of confidence, as well as the public
interest defence (in particular setting the record straight); as well as the host shield in Regulation
19(1), Electronic Commerce (EC Directive) Regulations 2002.
As regards MoPI, there would be questions concerning whether there was a reasonable expectation
of privacy and then the balance with freedom of expression, as well as remedies; with respect to
HiBook, whether it “had knowledge of facts and circumstances … from which it should have been
apparent that private information was being disclosed” and “failed to demonstrate that it acted
6
expeditiously to take the information down” (
CG v Facebook); and whether proceedings could be
successfully brought against a search engine (
NTI NT2).
With respect to defamation, issues would include serious harm; whether @animalwelfarenow can
rely on the defence of honest opinion (Defamation Act (DA) 2013, s 3) or publication in the public
interest (DA s 4; considering
Economou,
Serafin etc); whether Hibook is “the author, editor or
publisher of the statement complained of” (s 10(1), DA2013;
Tamiz); the website operator defence
in s 5
and whether
Loggle is a publisher (
Metropolitan International Schools).
7
Examiner’s Report 2021
LLM/MCL Paper 8: International Financial Law
25 candidates sat this paper (16 LLMs and 9 MCLs). The candidates divided into the
following classes:
1st with distinction = 0
1st = 14
2.1 = 11
2.2 = 0
3rd = 0
Fail = 0
This is an impressive set of results. The candidates generally showed a very good
understanding of the subject matter, and provided evidence of extensive reading of
both primary and secondary sources.
Comments on answers to individual questions are as follows:
Q1 Answered by 11 candidates. There were some very good answers. These
addressed the question and did not simply set out the pros and cons of Basel III.
Q2 Answered by 19 candidates. Again, there were a number of very good answers
that avoided simply setting out the duties and liabilities of facility agent and bond
trustee, but actually engaged in a meaningful ‘compare and contrast’ exercise. The
better candidates did this against the backdrop of the respective purposes and
functions of a FA and a BT.
Q3 Answered by 10 candidates. The better candidates identified what was meant by
‘practical utility’ and gave specific examples of how this might have been
undermined.
Q4 Answered by 7 candidates. A limited number of candidates answered this
question, and some of those that did produced excellent answers that drew together
examples with particular emphasis on default and close-out netting provisions.
Q5 Answered by 7 candidates. A problem question on bonds/notes only answered by
a limited number of candidates. The questions covered a range of issues. Surprisingly,
not all candidates questioned whether Green was a noteholder.
Q6 Answered by 21 candidates. A popular problem question that raised a number of
issues on syndicated lending, including those relating to the impact of the coronavirus
pandemic. It produced some very good answers.
28th June 2021
Examiners’ report for Corporate Finance Law, Paper 9
June 2021
Question 1
In this question, candidates were asked to consider the different options available to B Bank.
B Bank could enter into negotiations with A on the basis of a waiver for breach of the covenant
prohibiting financial indebtedness. If the negotiations fail, A may default, in which case B could
accelerate the loan and enforce security.
B could also consider acceleration now, on the basis of the MAC (material adverse change) clause.
This requires an assessment of whether the MAC clause is triggered in the given circumstances.
Candidates could have discussed the potential consequences if there is no default under the MAC
clause. Candidates could have discussed potential negotiation between B and A on the basis of the
MAC clause.
Candidates could also have discussed any potential enforcement of the security by the security
trustee. This raises questions over the valuation of intellectual property rights, enforcement by
appropriation of shares and whether the charge over receivables is fixed or floating.
Some candidates mentioned other options available to B, such as loan transfer or CDS to protect its
position.
Good answers discussed not only B’s options, but also the desirability for B to exercise any of these
options. For example, candidates could have discussed whether it is advisable for B to exercise any
‘nuclear option’ on loan acceleration and the effects this may have on cross-default clauses, or the
relevance of bargaining power for negotiation options (e.g., depending on current market
conditions).
Question 2
This question asked candidates to assess whether, and to what extent, the existence of agency costs
between different stakeholders of a company can explain its capital structure.
It was important for candidates not to write an essay about agency theory in general, but to relate
the issue of agency costs to the capital structure of companies specifically.
Candidates could have discussed how agency costs affect the amount of debt and equity that a
company raises. In doing so, candidates could have distinguished between different types of agency
costs and how debt or equity financing affects, or is affected by, these different costs.
It was also important for candidates to distinguish between the cost of agency and the cost of debt
or equity. Strong answers engaged with the question of who ultimately carries the agency costs of
debt and equity.
Question 3
This question required candidates to unpack a number of issues.
Answers should have assessed whether disclosure obligations for IPOs are ‘excessive’, as the
statement suggests, taking into account recent changes in disclosure rules (e.g., Growth Prospectus),
exemptions, etc. Candidates could also have discussed whether SPACs, CF and ICOs can indeed be
called a ‘success’ and, if so, whether their appeal is ‘due to’ IPO disclosure obligations or are better
explained by other factors.
Candidates could also have discussed whether corporate finance law should allow experimentation
by market participants and, if so, whether there are good reasons to restrict certain types of
experimentation more than others depending on features, target audience (retail or sophisticated
investor) and risks (should a stricter approach be adopted towards ICOs than towards crowdfunding,
for example, and why?).
To assess whether such market experimentation benefits investors, candidates could have
considered whether there are any benefits to investors in terms of greater investment opportunities.
Good answers pointed out that novel financing options can put pressure on traditional financing
processes to adapt, which could indirectly be beneficial both to capital-raising companies and
investors (e.g., pressure from direct listings and SPACs that force investment banks to make changes
to fee structure and transparency of bookbuilding process).
Some candidates also mentioned the need to take into account competition between different
jurisdictions to become capital market hubs and the UK’s efforts to remain a fintech hub post-Brexit
(Kalifa Review).
Question 4
This question asked candidates to assess the different financing options available to the company
and advise on the desirability of the different options.
Candidates could have assessed different options for debt and equity financing. For debt financing
options, candidates could have discussed the likelihood of obtaining a loan, raising debt securities or
securing another type of debt financing for a company in the position of MEandmyDNA. For equity
financing, candidates could have discussed the impact on existing shareholders of raising more
equity financing (such as dilution for existing shareholders L and A and loss of control).
An obvious starting point would have been to discuss the option of going public (depending on the
amount of financing sought) and the impact this may have on L (and potentially A and other
remaining existing shareholders) in terms of control. Candidates could have assessed for example,
the cost of going public, different listing venues (domestic and abroad), the Growth Prospectus
option, direct listing options (although unlikely to be a good option in this case) or even the
possibility to ride the SPAC-wave to go public. Candidates could also have considered the less costly
option of a private placement, weighing drawbacks (e.g., more limited investment pool) and benefits
(potential exemption from prospectus requirement). Some candidates mentioned crowdfunding
options, although it is unlikely that this would raise the type of financing that MEandmyDNA needs
to achieve its stated goals.
Candidates could also have discussed debt financing options (loan, syndicated loan, private equity,
debt securities, etc.) and whether any of these options are feasible and desirable for the company,
given its current situation and given market conditions.
Question 5
This question invited candidates to consider a number of post-Brexit reforms drawing on various
topics discussed throughout the course.
A good starting point would have been to discuss some of the reforms proposed by the Kalifa and
Hill reviews.
For example, the Kalifa review made a number of proposals to ensure the UK remains a fintech hub,
including reforms on digital assets and green financing. On green financing, candidates could have
compared the (limited) initiatives in the UK and the EU’s Green Deal and could have discussed
whether the UK should consider more ambitious green finance initiatives to ensure it can attract a
slice of the green financing boom. Candidates could have discussed whether the UK should reform
its rules to attract more SPACs (noting, for example, competition with Amsterdam as a listing venue,
or other listing venues worldwide).
The Hill review could have been mentioned, for example proposals on dual class shares or other
changes to the listing rules to increase the attractiveness of the UK as a listing hub. Candidates could
have discussed any tradeoffs between investor protection standards and attractiveness of the UK for
fundraising companies (such as tech unicorns, which may prefer dual class share structures) and the
need to take into account the specifics of UK capital markets (e.g., likely opposition of institutional
investors to proposed reforms such as dual class shares or changes to pre-emption rights).
Candidates could also have added potential reforms of the legal capital rules post-Brexit, for
example changes to dividend and share buyback rules, or abolishing minimum capital requirements
for plc’s.
Good answers noted that changing the laws on the book is only one part of the discussion: factors
such as UK investor preferences (for example, risk appetite) affect how legal reforms are likely to
play out in practice.
Question 6
A good starting point would have been to discuss whether the legal capital doctrine protects the
interests of internal corporate constituencies (and which ones). All candidates discussed the creditor
protection aims, although candidates could also have mentioned that the rules can equally protect
shareholders (e.g., variation of class rights in the context of a formal capital reduction).
Most candidates agreed that minimum capital rules for plc’s provide little creditor protection.
Candidates could have distinguished between adjusting and non-adjusting creditors and could have
assessed any alternatives to minimum capital requirements in order to protect involuntary creditors
(such as mandatory insurance or environmental law).
Capital maintenance rules aim to protect creditors (and also shareholders), although their
effectiveness as a creditor (or shareholder) protection tool could have been assessed critically.
Candidates could have discussed, for example, the complexity of the rules, liability risks for directors
and cost of compliance versus potential benefits.
Candidates could have discussed the different approaches to ltd’s and plc’s and assessed the
desirability of extending the solvency approach to distributions (for ltd’s) or to plc’s.
Regarding the solvency approach, candidates could have drawn on the experiences with the
solvency approach adopted in other jurisdictions and assessed whether this is a desirable alternative
to the current legal capital doctrine (e.g., the short-term assessment period and its impact for long-
term creditors).
Finally, candidates should have discussed whether the legal capital doctrine protects ‘broader
societal concerns’, as the statement suggests, and whether the protection of such broader societal
interests should at all be considered in the legal capital doctrine.
July 2021
LLM, Paper 10: Corporate Governance
Examiner’s Report (2021)
Twelve LLM candidates did the Corporate Governance exam, as did two MCL students. The
marks ranged from 120 to 144. Among the 12 LLM candidates who wrote the exam, the
average mark was 135. There were five first class marks (42%) and seven 2:1s (58%).
There were no 2:2 or third class marks.
With the two MCL students who wrote the exam, the
average mark was 132. Both students were awarded 2.1s.
With the Corporate Governance exam candidates were required to answer each of the four
questions set. Commentary on the performance on individual questions is set out below.
Q1
Candidates generally performed well in this essay, tracing the UK reforms on executive pay
over the last 30 years with discussion as to how those reforms may not have created the
outcomes intended. Most candidates commenced with an outline of the perceived problems
in the UK in relation to executive pay, before charting how reforms had attempted to solve
those problems, and the possible shortcomings of those reforms. Many candidates noted the
controversial aspects of executive pay that reforms may be intended to resolve.
The Greenbury Report of 1995 was obviously a key reform to be noted together with its
consequential changes to the Listing Rules to require greater disclosure of executive
remuneration. Greenbury’s recommendations to prioritise variable performance pay and,
building on the Cadbury Report of 1992, the use of remuneration committees, were critical
reforms that have been reflected in the Corporate Governance Code. Disclosure has also
been enhanced in the years subsequent to Greenbury, with disclosure taking on a statutory
footing in 2002 (reflected now in the Companies Act 2006), leading to more recent changes
such as CEO-employee pay ratio disclosure and gender pay-gap reporting.
Most candidates noted that executive pay had continued to surge in the years since
Greenbury. In particular, enhanced disclosure may have had the opposite effect than that
envisaged. Furthermore, although the intention with performance-related pay was to reduce
agency costs, candidates noted that, since Greenbury, there was little evidence that increasing
levels of pay have been aligned with improved company performance, and performance-
related pay could perversely have had the effect of contributing to growing levels of pay.
Additionally, many noted the propensity for the complexity of modern day pay packages to
dilute their agency cost mitigation effects, and for performance-related pay packages to
exacerbate short-term behaviour by company managers. Good answers also described the
mischiefs that remuneration committees are intended to solve (and the current Corporate
Governance Code requirements as to composition), but also the concerns that subsist as to
potential back-scratching between directors of companies, a lack of diversity on boards, and
the considerable influence of, sometimes conflicted, remuneration consultants. Some
candidates noted the aspects of the Corporate Governance Code and Companies Act 2006
disclosure requirements that have been included to attempt to temper the unchecked influence
of such consultants.
A crucial element of an answer to this essay was a discussion of ‘say-on-pay’. Good
candidates noted the requirements under the Listing Rules and the Companies Act, and the
evolution of the ‘say-on-pay’ rules from 2002 to 2013. Candidates should have critically
reflected upon the 2013 ‘say-on-pay’ reforms, comprising an advisory vote on the
implementation of directors’ remuneration and a binding vote on directors’ remuneration
policy. Most candidates, to varying degrees of detail, assessed the logic of encouraging
shareholder intervention on executive pay, and the theoretical and practical aspects that limit
the efficacy of shareholder involvement in executive pay. Good answers evaluated the more
recent empirical evidence on executive pay and noted the balance between the desire of
shareholders to ensure that companies can attract the best talent and the need to avoid
regulatory pressures.
Some candidates also described other aspects of the Corporate Governance Code related to
executive pay, and noted that although some of those recommendations seem to have added
substantive value, including in relation to reducing levels of severance payments, the
‘comply-or-explain’ nature of the Code may have hindered the effective operation of others,
including in relation to effective clawback mechanisms. A number of candidates also
cogently explored reform themes in the context of the quote that it is ‘easier to find problems
than solutions’.
Q2
The primary focus in this problem question was on shareholder rights. Insider dealing
regulation also was salient, as was a facet of the UK Corporate Governance Code.
Company law-oriented intervention by shareholders can occur along two basic dimensions,
collectively and individually. Shareholders formally exercise rights and powers collectively
through the passage of resolutions, which require majority (or supermajority) support by
members (i.e. shareholders) casting votes. A shareholder who has concerns about how a
publicly quoted company is being managed can also potentially take action unilaterally by
commencing litigation. Collective and individual rights were both potentially relevant for
Harwich Union.
To exercise the powers they have collectively shareholders of plcs need to operate through
the medium of resolutions passed at general meetings – written resolutions can only be used
in private companies. There are two means by which a meeting can be called in order for
shareholders to move matters forward. One of these, the calling of the company’s annual
general meeting (CA s. 336), is unavailable on the facts because that meeting was held
recently. Harwich Union thus would need to call an extraordinary general meeting under s.
303. Here candidates should have focused on the 5% ownership threshold and considered
whether Harwich Union could satisfy this. They typically did not do this and instead focused
on the combined 12% stake Harwich Union/CCM stake. This was an incomplete approach;
with Harwich Union seeking advice there should have been guidance on whether it could
have proceeded on its own.
Candidates did well in recognizing that the options available to Harwich Union at a general
meeting would depend on whether it could secure sufficient support from other shareholders
to pass merely an ordinary resolution (CA s. 282) or could in fact secure passage of a special
resolution (s. 283). If Harwich Union could get sufficient support to get special resolutions
passed options would include issuing instructions to the Gardens Unlimited board (Model plc
articles art. 4) and orchestrating changes to GU’s articles of association (CA 2006, s. 21).
Candidates also canvassed effectively Harwich Union’s most obvious way forward if it could
only get the backing required to pass ordinary resolutions, namely by shaking up the board by
relying on s. 168. As many candidates noted, a possibility here included forcing out Foster.
If a s. 168 resolution was passed dismissing Foster as a director, GU’s board would in all
likelihood terminate the CEO’s managerial services contract.
Candidates also generally did well in making the point that if Harwich Union has difficulty
gaining support from other shareholders, it could consider litigating by way of derivative
litigation and a petition under s. 994. The analysis of s. 994 usually drew attention to the
salient points (e.g. successful petitions are rare with publicly traded companies). With
derivative suits, most candidates correctly deduced that Harwich Union would need to
establish a breach of duty by GU directors to proceed and identified CA s. 174 as the primary
candidate. The analysis, however, of the factors a court would take into account in deciding
whether to grant leave for a derivative suit to proceed tended, however, to be perfunctory.
A substantial number of candidates appropriately drew attention to the small number of GU
board meetings when discussing s. 174. Many, however, failed to note that GU’s failure to
report on the number of board meetings infringed provision 14 of the UK Corporate
Governance Code.
Most candidates recognized that insider dealing regulation likely compromised Harwich
Union’s ability to sell its shares. The better answers drew attention to the elements of insider
dealing under the EU Market Abuse Regulation (as introduced into UK law) and the Criminal
Justice Act 1993 and described how the facts matched up.
Q3
This question called upon students to assess the extent to which to UK company law and
corporate governance arrangements match up with a set of corporate governance principles
relating to publicly traded companies the European Association of Securities Dealers (EASD)
issued a few years ago.
With principle 4, candidates were invited to consider protections afforded to minority
shareholders under corporate law and corporate governance. Stronger candidates
contextualized their discussion by pointing out that dominant shareholders are the exception
to the rule in the UK because it has an outsider/arm’s length system of control. Minority
shareholder mechanisms to which candidates should have drawn attention included likely
breaches of duty by directors advancing the interests of dominant shareholders, derivative
litigation, the unfair prejudice remedy (CA s. 994), case law restrictions on shareholder
voting (e.g. with amendments of the corporate constitution), rules requiring independent
shareholder approval of director elections in companies with a controlling shareholder
(Listing Rules, para. 9.2.2E) and rules mandating relationship agreements in listed companies
with controlling shareholders (Listing Rules paras. 6.5.1, 6.5.4, 9.2.2AB, 9.2.2AD(1)). Only
a small minority of candidates canvassed all of these points.
As for principle 5, candidates should have drawn attention to aspects of corporate law and
corporate governance that prioritize the running of companies for the long-term, the
accountability of companies to shareholders and the monitoring functions boards can
perform. With the long-term angle, candidates should have discussed CA s. 172(1)(a) and
facets of the UK Corporate Governance that refer to the long-term, most notably Principles
A, D and P. As for accountability to shareholders, candidates should have drawn attention to
shareholders’ status of first among equals under s. 172 and to key sources of shareholder
influence (e.g. the right dismiss directors under s. 168 and veto rights such as those arising
under CA ss. 190-96 and 439/439A). With monitoring by boards, candidates should have
indicated that this is a priority under the UK Corporate Governance Code (e.g. Principles C,
Principle H; Provisions 2, 8, 13) and mentioned aspects of the Code designed to fortify the
monitoring capabilities of boards (e.g. guidance on time provided by Principles I and H and
Provisions 14 and 15 and on resources – see Principles I and F). Only a small minority of
candidates drew attention to most of the these points.
With principle 6, candidates should have focused on board composition and board
committees, with particular reference to balance and transparency. With board committees,
UK Corporate Governance Code provisions dealing with the composition of the key board
committees (nomination, remuneration and audit) should have been discussed, as should the
treatment of audit committees under the Disclosure and Transparency Rules. As for balance,
candidates should have discussed what the UK Corporate Governance Code says about
composition of the board (Principles 9-11) and diversity (e.g. Principles J and L and
Provisions 20 and 23). As for transparency, the most obvious point for candidates to make
was that listed companies must disclose how they deal with UK Corporate Governance
Principles and Provisions dealing with board composition and balance (Listing Rules, para.
9.8.6(5), 6)). Yet again it was rare for candidates to canvass the bulk of these points.
Finally, with principle 9, candidates were invited to canvass aspects of corporate law and
corporate governance pertinent to conflicts of interest. Candidates should have discussed, for
example, duties directors will infringe if they act in a self-interested way (e.g. CA ss. 171(b),
172, 175, 176), canvassed rules governing related party transactions (e.g. CA ss. 177, 182,
190-96; Listing Rules, chapter 11, Disclosure and Transparency Rules Part 7.3) and
mentioned UK Corporate Governance Code Principle D and Provision 7. Candidates dealt
more effectively with principle 9 than the other principles.
Q4
This essay question focused on shareholder activism, with particular emphasis on the impact
of the 2020 Stewardship Code. Candidates should have put their analysis into context by
canvassing various general points regarding shareholder activism. Themes that merited
exploration when providing context included the potentially beneficial governance
contribution shareholders can make, the traditional bias in favour of passivity on the part of
UK investors and the reasons for this passivity. Candidates also should have drawn attention
to pleas made previously for greater shareholder involvement in corporate governance, to
statutory changes that have bolstered shareholder power and to other reforms designed to
encourage shareholder involvement in listed companies. Candidates also should have
acknowledged that a sub-set of investors (primarily hedge funds) routinely depart from the
norm of passivity and pursue an ambitious “offensive” activism strategy where they lobby for
changes in companies in which they acquire sizeable minority stakes.
Candidates performed somewhat unevenly in relation to these themes. Most provided
thorough explanations why passivity was the norm amongst investors owning shares in listed
companies, drawing attention is so doing to various disincentives to activism (e.g. collective
action problems, a temptation to “race to the exit” and the potentially costly nature of
activism). Most candidates mentioned hedge fund/offensive shareholder activism but
typically few details were provided on what was distinctive nature about this form of
activism. Finally, while most candidates drew attention to the fact that pleas for increased
shareholder activism can be traced back at least as far as the 1992 Cadbury Report, only a
small minority considered why shareholder engagement might be beneficial from a
governance perspective. Investor passivity is only a source of concern if shareholder
involvement in corporate affairs is likely to be beneficial. Candidates correspondingly should
have discussed why greater shareholder participation in corporate governance was to be
welcomed. Candidates, in addressing this theme, should have identified the managerial
agency cost problem that is associated with the UK’s outsider/arm’s-length system of
ownership and control and ideally should have acknowledged that market factors, UK
company law and boards of directors address only partially concerns about agency costs.
Only a small minority of candidates addressed these issues in any depth.
Pretty much every candidate addressed the Stewardship Code is some detail and
demonstrated in general an effective understanding of its nature. A common weakness here
was failing to provide a synopsis of the Code’s principles. There also was a tendency to
overrate what was new about the Code, with various candidates saying erroneously that an
innovation with the 2020 Code was that it distinguished between domestic asset managers on
the one hand and other asset managers and asset owners on the other by putting domestic
asset managers under a strong regulatory onus to become signatories. This bifurcation has in
fact always featured with the Stewardship Code. Also, while most candidates drew attention
to the high proportion of UK public company shares foreign investors own and mentioned
that such investors are not ideally positioned to be activist investors, a substantial number
failed to emphasize that neither foreign asset managers nor foreign asset owners have few
incentives to become Code signatories. Most candidates did appropriately draw attention to
the fact that the 2020 Code has little to say about the form of offensive activism hedge funds
engage in and acknowledged that this seems likely to compromise the effectiveness of the
Stewardship Code.
LLM PAPER 11: Players and Processes
Examiner’s Report 2021
Sixteen candidates took this Paper by the examination (one of these being by
the two question exam + long essay route), and three prepared dissertations.
(The course was also attended by a number of students studying for the MPhil
in Criminology. These students are lively contributors to the course; they are
assessed not through exams, but by 3,000 word essays). This Report focuses on
the examination for LLM students.
This is the first time that the paper had been taken in an open book format (I
was on sabbatical leave). Overall, 8 of those who took the exam achieved a first
class result, and 8 achieved Upper Second Class results for this Paper (all in the
top half of the 2.1 range). It is not surprising that all students did well, with such
a wide window of time (24 hours) and access to all lecture and other notes and
online sources. Students appear to find it much easier now that the exam is not
a memory test to provide impressively detailed reference to the statistical,
theoretical and research literature. Perhaps it becomes more obvious this way
which candidates feel confident to think, to reflect, to engage critically with case
law, research findings, statistics, theoretical and policy arguments. Evidence of
critical engagement is certainly required by the examiners.
As ever students, tended to focus on predictable areas in the examination: no
candidate attempted questions 9 or 11. But this was a better ‘spread’ than in
the previous exam (2019-20) when 5 questions were avoided by all students.
As in recent years, the most popular questions were questions on juries (15 of
16 chose to do this) and on lay magistrates (9 answers). The remaining
questions were all chosen by 5 or fewer candidates. Whilst students perhaps
make predictable choices in selecting which questions to answer, the examiners
are not worried by this. The spread of marks suggests that there are no
particularly ‘easy’ or ‘difficult’ topics. Those who fail to engage with the precise
question on the exam paper will inevitably not shine. The standard this year was
impressively high.
Question 1. The two candidates who chose to answer this question made
good use of academic sources and the case law examples to illustrate the
impact of pre-trial ‘events’ on the fairness of the trial. Both explored well how
‘fair’ trials cannot happen if pre-trial processes have not been ‘fair’.
Question 2. Five students chose to explore the legitimacy of out of court
disposals and all made wise attempts to critique Government proposals to
limit the number of options available.
Question 3 was chosen by two candidates. The question required them not
simply to describe the youth justice system, but to develop a ‘vision’ based on
what is known from research evidence (which might be theoretical as well as
empirical).
Question 4. This was the very popular jury questions. Students were all wise
enough to recognise that they had to focus on possible changes to the rules.
Question 5. This very popular question demanded a good knowledge of the
benefits and disadvantages of ‘lay’ magistrates. The best answers made critical
use of a wide-range of sources.
Question 6 was only chosen by two students: perhaps surprisingly, given that
question of discretion and discrimination flowed through the whole course?
Perhaps the fact that the question allowed students to look at discrimination in
criminal justice through such a broad lens put them off?
Question 7. Four students chose to explore the difficulties of sentencing. It
was encouraging to see them choose a wide-range of theoretical and practical
examples to illustrate their answers.
Question 8 was chosen by five students. The best answers focused on
exploring why rights of appeal vary from different levels of trial court, and
explored the tricky concept of ‘finality’.
Question 9. Surprisingly no-one chose this question on ‘smarter’ prison and
probation services – it felt to the examiner to be particularly topical given last
year’s White Paper and the many changes afoot.
Question 10. This question was chosen by only one candidate. The question
gave candidates the opportunity to explore the contentious concept of
discretion.
Question 11. Finally, no student chose the question on advising the Minister of
Justice how to ‘evaluate’ the criminal justice system. Perhaps this felt just too
big? But those of us who taught on the course are confident from the exam
scripts generally that the candidates had all thought critically about these
fundamental questions.
It was a really difficult year for all of us – all the lectures were recorded in
advance, and each week’s class discussion throughout the year was held on
microsoft ‘teams’. Although we look forward very much to returning to face-
to-face teaching, we offer our warm congratulations to this year’s candidates
on completing a difficult year so successfully.
28 June 2021
LLM Paper 12 – Intellectual Property
Examiner’s report
During this difficult year of on-line teaching, students taking this course had 24 hours to complete the
exam paper and were graded in the normal way (i.e as if they had undertaken a three-hour paper in an
examination hall). Students responded well with the final classing list comprising:
1 (50%), 2i (43%) and 2ii (7%).
Question 1
Approximately half the class attempted this question with most obtaining a first class mark. The first
step was to consider if either of the patents could be revoked for not being a patentable invention (PA77
s. 72(1)(a)) i.e. for not consisting of eligible subject matter, or for not being novel, involving an inventive
step or being capable of industrial application at the priority date.
Turning to the laundry ball, relevant prior art included chemical softening and scenting agents and
mechanical tumbling but none of these disclose a spherical device as claimed so they would not
anticipate. Jack’s toy ball for dogs required more careful consideration. Following lower court decisions
such as
Emson v Hozelock and
Folding Attic Stairs it was questionable whether the courts would
consider the toy ‘publicly available’ since Jack used it openly in a forest where it was rare for him to be
seen. But applying the Court of Appeal case of
Green Lane Products v PMS International Group Ltd [2008] 28 FSR 701 (CA) and the House of Lords case of
Synthon, the use was publicly visible even if
it wasn’t seen by anyone, and the question was whether it disclosed the invention and was enabled.
While there was some doubt whether the dog toy amounts to an anticipatory disclosure, it was almost
certainly not enabled (the second element of Synthon) because a person skilled in the art could not
replicate it based on fleeting observations in the wood. They were unlikely to see the toothpaste, the
punctures, or the details of the nodes.
Given this, it was not strictly necessary to discuss the matter of disclosure and it saved time and space
to move on swiftly. However, most students considered it anyway. To do so, one had to apply the
reverse infringement test, and the question was whether the prior art dog toy would fall within the words
of the claim:
A spherical device said device comprising (1) an outer shell with rounded pyramidal
nodes characterised by the nodes having a mean diameter at the tip of between 1mm and 4mm
and a height of between 5mm and 10mm and (2) further comprising within it a replaceable
scented capsule, wherein the outer shell (3) has openings (4) that allow air flow between the
outside of the shell and the capsule.
On the question of whether the patented laundry ball involved an inventive step, students were expected
to show knowledge of the
Pozzoli steps, and to apply them swiftly. For instance they should have
described the person skilled in the art and suggested that they might have been, for example, a small-
appliance engineer, or possibly (but unlikely) a team. As discussed above the prior art did not include
the dog toy because it was not enabled (so it was not publicly available). The key question was whether
the inventive concept of the noded and capsuled laundry ball was non-obvious over mechanical
tumbling and chemical washing agents. The specifically sized nodes were also part of the inventive
concept. Although the invention took many months of testing, it must be remembered that GEC’s
pharmaceutical experts were outside the person skil ed in the art’s scientific discipline so might find an
obvious invention difficult. Students were expected to refer to some of the
ICOS and
Angiotech factors
(eg whether the step was obvious to try and its chances of success, whether the research was routine,
its cost, the necessity of value judgements, the existence of multiple paths and the inventor’s motives),
and to mention the (equivocal) secondary indicia of commercial success. One student argued that it
was not obvious to start experimenting with whether a ball with nodes on it would soften fabric out, and
it was not obvious to decrease the size of the node, as opposed to using several different balls, or
changing its material, or making the nodes larger. The laundry ball involved multiple paths and value
judgements.
1
Accordingly the first patent probably could not be revoked. In contrast the second GEC patent probably
could have been revoked for being anticipated by the disclosure in the laundry ball patent. The words
‘for use’ means ‘suitable for use’ and the first patent claimed spherical devices without excluding metal
devices. Despite the new medical use canonical form (use in the treatment of muscle spasm), this claim
is not cover by the saving provision in PA77 4A(3), since that only applies to ‘substances and
compositions’; not devices.
The second part of the question concerned infringement.
From 2021, Jack was carrying out an infringing act (disposing/selling) and the issue was whether Jack’s
commercialised ball with lego nose cones fell within the claim of the first patent. This ball was not
identical to GEC’s claim, and students were required to work carefully through the two step test set out
by Lord Neuberger in
Eli Lilly v Actavis for normal/purposive interpretation, and infringing immaterial
variants. One question was whether the lego nose cones were ‘rounded pyramidal nodes’ -- probably
under normal interpretation or alternatively the revised
Improver questions. Another question was
whether the mint ball or cinnamon sticks were ‘replaceable’ scented capsules -- possibly under the
revised
Improver questions.
Jack’s continued use of his basic dog ball on forest walks might arguably be an infringement by
equivalence, but the prior user defence would apply (PA 77 s. 64(1)(a)) or private, non-commercial use
defence (s.60(5)(a)). This defence would not apply to Jack’s commercialised bal because the defence
only covers substantially the same action as was carried out before the priority date (
Lundbeck).
The CAD file uploader probably indirectly infringed GEC’s laundry ball patent because s/he supplied
means for putting the invention into effect. Each element of s 60(2) except for those concerning
jurisdiction and intention were clearly pointed out in the facts. The requisite intention is arguable since
it could be assumed that any person supplying complex 3D printing instructions online knows or it is
obvious to a reasonable person that the CAD file could be used to make the balls. A sharp student
noted that the meaning of ‘in the UK’ in the online context has not been considered by the courts, but
would likely depend on factors such as evidence of use in the UK, language, and advertising. It is likely
that a case could be made to block the file being available on-line to UK internet users. The people
printing the laundry balls with 3D printers at home were infringing under s 60(1)(a), however, they could
probably rely on the defence in s 60(5)(a), as long as they were printing the balls for private, non-
commercial purposes.
Aromabits could be argued to be infringing indirectly if selling the capsules meant that Aromabits was
supplying ‘essential means’ for ‘making’ the laundry balls rather than selling spare parts. However, the
factors in
Schutz v Werit suggest not. Furthermore, it could be argued that things like scented wax were
staple commercial products saved by s 60(3) (unless the supply was aimed at inducing infringements.
But nothing in the facts suggests that was the case).
Question 2: ‘To make the UK’s “closed list” approach to the definition of a “work” fit for
purpose, cinematographic works and multimedia works should be added to the list and the
troublesome category of works of artistic craftsmanship removed.’
Discuss.
This essay question was completed to a high standard by two students. Students were expected to
display what they knew about the challenges in the UK copyright system for protecting cinematographic,
multimedia and artistic craftsmanship works. When forming an argument in response to the statement,
it was sensible to critique or at least define what makes the definition of a work “fit for purpose”. Both
students considered requirements of EU law as being indicators of whether the definition was ‘fit for
purpose’, but that wasn’t the only approach that could be taken, especial y in the post-Brexit
environment. Students were also welcome to discuss alternative ways that the issues might be resolved
such as adopting an open-ended list of works.
Question 3: ‘Sufficient protections for commercial freedom of expression are guaranteed
through the defences against trade mark infringement. Accordingly, there is no need to take the
public interest into account when examining the inherent distinctiveness of a mark or to
consider “due cause” in relation to the enhanced protection offered to marks with a reputation.’
Discuss.
2
Four students attempted this question with most achieving solid 2i marks. The starting issue was
whether defences against trade mark infringement sufficiently preserve
commercial freedom of
expression? There was clearly an argument that the defences are narrow. But the sensible scope of
commercial freedom of expression is open to debate. Query whether and when commercial freedom of
expression includes using another company’s marks without authorisation? Subsidiary issues included
whether these points (and/or other points) meant that the public interest should be taken into account
when considering a mark’s inherent distinctiveness and whether ‘due cause’ for a defendant’s actions
should be considered when deciding whether a defendant’s actions amounted to infringement of a mark
with reputation through tarnishment, blurring or free-riding. It was also open to candidates to indicate
whether, in their view, UK law has achieved the right balance. Students were expected to use case law
and secondary literature to develop or illustrate their points.
Question 4: Describe and justify two reforms you recommend for patent law. In your answer you
should also address important counter-arguments and refer to either utilitarianism or ‘mid-level
principles’.
(For the purposes of this question, you may assume that international law imposes no
restrictions on the reforms you suggest, and no credit will be given for discussing relevant
aspects of international law.)
This was a straightforward question for which solid answers were provided by a small number of
students. The answers would have been much improved if the students had more knowledge of their
selected patent law controversies and possible policy solutions, and integrated their knowledge of
utilitarianism or Merges’ mid-level principles to
justify their proposals.
Question 5: ‘I find myself wondering if patent law could learn something valuable from the law
on copyright infringement. Imagine for example if, instead of interpreting written claims at the
end of the patent document, patent judges were simply required to ask one question: whether
the defendant had taken the inventor’s intellectual creation without authorisation. Would that
be a helpful reform?’
Discuss.
This question called for an imaginative response. It was attempted by one student only. A good answer
would have discussed how an inventor’s inventive concept might be appropriately protected without
setting out claims at the end of a patent document. For instance a patent document might simply include
a description or drawing of the invention. And one could discuss the extent to which the law on patent
infringement more or less operates in this way when the courts apply a doctrine of equivalence, and
what might be advantageous about formally departing from claim-drafting. Alternatively, if the student
thought that an inventive concept could not be appropriately protected in this way, the essay could have
discussed why this approach was too challenging in patent law, but feasible for the protection of original
expressions in copyright law. What makes the two areas of property protection for intellectual creations
so different when it comes to testing whether the boundaries of the property have been transgressed?
Question 6: ‘Articles 54(4) and 54(5) should be removed from the European Patent Convention.
They create more problems than they solve.’
Discuss.
This question was answered exceedingly well by a handful of candidates. They discussed the purpose
and value of the special novelty rules for first and second medical use patents (Articles 54(4) and 54(5)),
and the relationship between these rules and the exclusion of methods of medical treatment in Article
53(c). In doing so, they showed a good understanding of the public interest arguments in favour of
offering patent incentives/rewards for re-purposing research when scientists identify new medical uses
of known substances and compositions. The students also described difficulties with first and second
medical use patents. Some of these involved difficulties internal to patent law on patent acquisition (eg
whether the development was obvious and plausible at the priority date), or patent infringement (eg
what amounts to direct and indirect infringement, whether a skinny label avoids infringement, whether
doctors or pharmacists might be liable). Other difficulties include more external social issues, such as
3
whether the patent incentive/reward is disproportionately large compared with the effort and risk
typically involved in developing first and second medical uses and leads to problematic ‘ever-greening’.
Some students agreed with the proposition; others disagreed offering a variety of different policy
response. For instance, one suggestion was that Articles 54(4), 54(5) and Art 53(c) should be removed
from the European Patent Convention and a defence added to protect doctors from patent infringement.
Question 7
This trade marks problem question was selected by all candidates sitting the exam. Most answers
achieved a 2.1, with a handful attaining a first. Overall the question was handled well, though some
significant nuances appeared to escape otherwise competent candidates.
Sub-question (i) centred on absolute grounds. Most candidates considered issues of subject matter,
representation, inherent distinctiveness and bad faith. Better answers noted that the application
concerned the clip rather than the yoga pose per se. With regard to bad faith, the
Lindt factors were
sometimes applied reflexively and sometimes reflectively.
Sub-question (ii) raised issues of infringement on three fronts: R’s mark EXERCISE LUNATIC, R’s
listing for his Lunar Yoga Mat and S’s mark LUNAR WHISKEY. Good answers addressed each of these
in turn. The best answers attempted to identify what mark R had used in the listing for his mat in order
to determine whether this was a case of double identify or confusing similarity. Most candidates
discussed the jurisdictional elements competently. A handful suggested that the UK is no longer “in
Europe”. This may have cost them points in a geography exam, but was not penalised in this instance
– except where it caused them to abandon the analysis of key issues. Confusing similarity and dilution
were generally handled well, though many candidates appeared to miss the potential antagonism
between yoga and whiskey.
Sub-question (iii) focused on revocation and on passing off as a relative ground for refusal. With regard
to passing off, good answers focused on foreign goodwill, sometimes with a brief discussion of
misrepresentation and damage. With regard to revocation, genuine use had to be addressed. The best
answers distinguished between the various goods and services for which the mark had been registered
and considered the possibility of rewriting the specification. Occasionally answers questioned whether
a variant had been used by T in relation to certain goods. Less compelling answers found that the mark
was descriptive.
Question 8: ‘In recent decades trade mark protection has become overly broad. A good
way to rein it back in would be to strengthen and expand the absolute grounds for
refusal to register trade marks, and to abolish passing off entirely.’
Discuss.
This question was chosen by one candidate. The need for the protection of unregistered marks was
one potential avenue to explore. The UK’s international obligations, as well as policy questions related
to the interests of consumers and traders were worth examining here. Recent changes to the absolute
grounds were also ripe for discussion (e.g. the expansion of the shape exclusions into functionality
exclusions or the narrowing of the requirement of graphic representation into one of clear and precise
representation).
Skykick and the issue of overly broad specifications were another thing to consider.
Whether or not the opening proposition is correct (i.e. that trade mark protection has become overly
broad) could also be dissected.
Question 9:
Question 9 was a copyright problem question. It was attempted by half of all candidates. Approximately
40% obtained a first, 30% a high 2.i. and 30% a 2.ii. Competent answers identified the relevant works
and their authors and proceeded to work through questions of subsistence, infringement and defences.
In this case, there was a potential artistic work in the doodle, a potential literary work in the lyrics and a
4
potential musical work in the tune. The animated film could have been a film and/or a dramatic work,
as could each episode of the series. Questions of joint authorship (with D and Prof. T) and employment-
based ownership (for the College via Prof. T) had to be explored. With regard to infringement, the better
answers picked up on the relevance of s. 17(4) CDPA. Less impressive answers failed to consider
whether D owned any copyright-protected works and, if so, whether R had infringed this copyright –
does taking the body of a cartoon character amount to a substantial part? What about the simple lyrics
or the cheerful tune? Better answers considered potential accessory liability for MamaBaba.com. With
regard to defences, a variety of options were worth considering, including parody (for M and S), private
study (for S) and quotation and/or criticism and review (for the College). Good answers also examined
moral rights: would a reasonable person consider that S’s drawing amounted to derogatory treatment?
5
Report – Paper 15 International Environmental Law – 2021
Overall, 26 LLM students took this exam. Each student had to select three out of
seven proposed questions.
Each one of the seven proposed questions was selected by a minimum of 3 students.
The distribution of question selection is as follows: question 1 (3), question 2 (5),
question 3 (9), question 4 (16), question 5 (15), question 6 (19), question 7 (9).
The overall distribution of classes was slightly higher than in previous years, with
approximately 35 per cent (1st, none with distinction), 62 per cent (2:1), 0 per cent
(2:2) but unfortunately 4 per cent with a failed mark (1 student). The highest mark
awarded was 144 and the lowest 35. A dissertation was awarded a high 1st.
General comments:
This was an extraordinary year of teaching and class interaction. Against this
background the exam yielded very good results and many students had at least one
first class answer.
Common challenges were a tendency to be overly descriptive or to lose sight of the
legal context which was being discussed. This may be linked to the take-home
format of the exam, which was implemented as a result of the pandemic strictures.
With a 24h take home exam there is the temptation to pre-prepare essays and
skeletons which will not have been helpful this year. Because knowledge is of
course available in such a format, students may have a tendency to rely more on
providing knowledge that is less directly relevant for a question rather than
processing it through their own informed and considered judgment. Closer
attention to the question asked would be recommended.
Specific questions:
Question 1 was not very popular and just attempted by three candidates but
yielding one of the highest single mark with 150. This question concerned the
design and critique of the design of treaties concerning biodiversity protection.
Some of the weaker answers will just have focussed on the CBD and how its design
differs significantly from the Vienna Convention on the Ozone Layer or the UNFCCC.
The very best answers offered a broad review of different treaties concerning
biodiversity protection, such as the UN World Heritage Convention, the Ramsar
Convention, CMS, CITES or the Whaling Convention. Many of these treaties have
standalone mechanisms and differ slightly. All work and observe COP decisions of
the CBD but there is as of yet no formal governance mechanism to ensure effective
implementation and application of the rules.
Question 2 concerned the difficult question of the regulation of plastics in
international environmental law. The question itself suggested two possible
regulatory approaches as downstream, i.e. as a waste management problem or
1
upstream, i.e. as production or waste generation problem. Most candidates were
aware of the negotiations in the Basel Convention on transnational waste shipment
and its Basel Convention Plastic Waste Amendments. They also discussed
associated problems that many plastics polluting rivers and the oceans don’t
formally enter the waste stream. This question thus required a bit of creative
associations, such as using the regulatory approach of the Minamata Convention
which regulates all stages of the use of mercury. Very good students also
highlighted the interaction with WTO law and trade rules.
Question 3 proved to be one of the most popular questions. It concerned the well-
known debate about ICJ advisory opinions concerning international climate change
obligations. Many candidates divided their essay into two (sometimes not clearly
articulated) parts discussing advisory opinions in abstract (which was not
necessary for the question) and then the question of the failure of states to reduce
their GHG emissions. Only the very best students seemed to recognise that the two
parts of the question are intrinsically linked. The findings and their usefulness
would depend on the request and the interpretation of the ICJ of such a request.
Several students rightly discussed the impact of the Paris Agreement and its
obligations on the question. Only the best students recognised that 2021 was a year
in which Advisory Opinions on Chagos and on Palestine where cited as authority in
contentious cases, which in turn should have a bearing on the question asked.
Again, this was not necessary, but the ability to integrate different strands of
knowledge and bring it to bear is, itself, particularly valuable.
Question 4 concerned the difficult question if IIAs do leave enough space for green
industrial policies and instruments. Unfortunately, too many students saw this
question as an invitation to broadly discuss investment law and sustainability
which was not really the question asked. The question specifically required
students to reflect on green industrial policies and instruments and in detail assess
their compatibility with current IIAs. The better candidates proposed several green
industrial instruments, such as creating green champions or green banks and
highlighted that the current discussions in IIAs focus on sustainable development
chapters, which don’t provide broad exceptions or carve out from otherwise
discriminatory policies.
Question 5 also proved a very popular question with nearly all candidates providing
an answer. Some of the answers unfortunately seemed to use pre-prepared
sections to a slightly different question. This was not a general question about
human rights and the environment, nor a question only about the recognition of the
right to a healthy environment. This question specifically asked about the different
adjectives, i.e. health, clean, sustainable etc environment. The better students
discussed not just the comprehensive proposal by the Special Rapporteur but also
how the case law on human rights and the environment influences this area and
how the ‘environmental minimum’ that the Strasbourg court has recognised. Other
good answers made references to national constitutions and the different
adjectives used.
Question 6 was the third most popular question. Again, this question was
unsuitable to pre-prepared sections. It did not require a long discussion about
principles in international environmental law in general nor about customary law
2
in particular. The question required a nuanced discussion relying on case law as to
the content of the prevention principle, its impact on the different environmental
media and a discussion as to obligations beyond national jurisdiction. Very good
students used the ITLOS seabed advisory opinion, its due diligence discussion and
its discussion of areas beyond national jurisdiction to enrich their discussion. Other
students brought the BBNJ treaty negotiations into their essay or tried to provide
legally structured arguments to flesh out the prevention principle’s scope.
Question 7 concerned the Paris Agreement Compliance Committee. It followed an
extensive discussion of the matter of compliance in the lecture which highlighted
the different and innovative nature of the Paris Agreement compliance and
enforcement regime. This question attracted fewer answers but several of a high
1st class quality. It did not require a general discussion of compliance and
enforcement in IEL but rather specifically of the Paris Agreement. All students
realised that the difference in regulatory structure of the Paris Agreement
necessarily had an impact on its compliance and enforcement regime which
according to the Agreement itself had to be facilitative in nature. Several essays
discussed this approach in comparison to other IEL but also other international law
regimes and highlighted its potential shortcoming. The very best students realised
that even with the Paris Agreement, the Katowice Rulebook, the rules of procedure
of the new Committee will require careful attention by lawyers and legal advisors.
3
PAPER 18: EXTERNAL RELATIONS LAW OF THE EUROPEAN UNION -2021
This exam contained ten questions. Candidates were required to answer any three
questions in 24 hours. This was an open-book take home examination and substantive
answers were expected. Out of seven candidates, four achieved a First class result and
three obtained 2.1s (none lower than 126). In general, the answers were very pleasing
but students are reminded not to try to prepare entire draft essays as the questions will
necessarily require different weight and emphasis.
Question 1
This question required analysis of the TCA and the issue of mixity in EU
constitutional law and as explored by the Court of Justice. Many highlighted issues
that could have led to mandatory mixity, for example investment protection and how
the current TCA might not fall into that category. All students realised that the TCA
was ratified by the EU as an EU only agreement. The better students highlighted the
history and the legal discussions that existed in the Council declaring the TCA to be
an exceptional situation of a former Member State leaving and entering an new
relationship for why mixity was not chosen for this important agreement.
Question 2
No student attempted this question. This question required careful engagement with
both the TCA and the Northern Ireland Protocol and their similarities and differences
with regards to other EU FTAs. Especially the TCA sets a new standard with regards
to sustainable development, climate change and fundamental rights cooperation. The
Northern Ireland protocol keeps Northern Ireland effectively in the single market for
goods while it belongs to the customs territory of the UK, i.e. benefits from the UK’s
FTAs.
Question 3
This question required a discussion of direct effect of international law in the EU legal
order distinguishing the different forms of international law and their potential direct
effect. The best candidates disagreed with the premise of the question but offered a
detailed discussion of the high hurdles set by the Court of Justice in cases like
Intertako
for the application of direct effect to especially individuals and would have critically
assessed and commented on the most recent case law.
Question 4
This was a very popular question, which produced some strong answers.
Unfortunately, some had anticipated an institutional question and while some aspects
of the EEAS were required, this question focussed on the constitutional position of the
High Representative, especially with regards to CFSP. It required a detailed
discussion of the HR’s role, especially with regards to CFSP instruments and their
preparation. The best candidates also included the most recent history of those who
occupied the office.
Question 5
No student attempted this question. This question required careful engagement with
the most recent case law and a solid understanding of the legal bases jurisprudence of
the court. In particular a short
Achmea discussions and reference to the
CETA
Opinion, the issues concerning the Northern Ireland sea border and how to overcome
it as well as a short analysis of the draft CAI which arguably makes the EU and
Chinese NDCs under the Paris Agreement binding.
Question 6
No student attempted this question. It required a nuanced view of the review of
legality and the hesitation by the Court of Justice to use international law as a
yardstick. Also, a discussion of the increasing emphasis by the Court of the autonomy
of the EU legal order to the arguable detriment of compliance with international law
and the constitutional challenges this creates for the Member States.
Question 7
This question was required a detailed discussion of the AG Opinion in the
Achmea
case. Given that some commentators interpreted the Court’s decision in the case as
undermining international arbitration and given the protracted discussions about intra-
EU BITs which ultimately resulted in the Agreement for the termination of Bilateral
Investment Treaties between the Member States of the European Union, this question
required a nuanced evaluation of the AG’s argument and why the Court felt that it
could not follow him.
Question 8
This question invited candidates to explain and analyse the TCA rump investment
chapter, which does include several innovations but does not include any ISDS (also
to avoid mandatory mixity). It should have been discussed in the context of existing
UK BITs with several Member States and how the UK did not participate in the
termination treaty for intra-EU BITs because it had already left the EU. The better
candidates also highlighted the Energy Chapter and its investment provisions as
somewhat
surprising.
Question 9
This question was chosen by only by one candidate. It required a discussion of the
new provisions on climate change and trade in the TCA and its elevation to an object
and purpose of the TCA along side the material breach provisions; its relationship
with the Paris Agreement and the long-term ambition of net zero. It also required a
discussion of the non-regression provisions and how the TCA sets the level of
protection on climate change (slightly less ambitiously than the current NDCs by the
EU and UK) and a short discussion on the process of invoking these provisions
unilaterally.
Question 10
This question was comparatively popular but also suffered to a certain degree from an
anticipation of the question. It did not require a general discussion of the sanctions
regime or case law but rather a more focussed engagement with the arguments by the
General Court in the
Kadi case and as repeated by the UK representative in
Kadi about compliance with UN law which is obligatory for the Member States. The best
students offered a nuanced analysis of the most recent case law and related
discussions about the autonomy of the EU legal order.
LLM Paper 20 (2021) The Law of Armed Conflict, Use of Force and Peacekeeping
Most questions were done at a high standard, with students making a discernible effort to submit answers
that were polished, thoughtful and well referenced. Less successful answers lacked in cogency and/or
focus, failing to provide an insightful discussion of the issues and materials covered in the course. It bears
emphasising, as ever, that a key principle of exam-taking is to engage with the question asked, as opposed
to rehashing previously written essays or taking the ‘this is all that I know about this topic’ approach.
SECTION A
Question 1
The second most popular question in Part A invited students to consider methodological issues relating
to the identification of the law in areas where states disagree and to appraise attempts made by powerful
states to interpret the right to self-defence expansively. Curiously, a majority of students attempting the
question focused on a single example of expansionist interpretation, missing the chance to compare and
contrast different arguments which the ‘letter’ or the ‘spirit’ of the UN Charter can be said to support or
undermine.
Question 2
This was by far the most popular question in Part A, and it attracted some excellent answers. Stronger
essays thoughtfully considered the similarities but also the differences in the practice surrounding the
two most important debates over the scope of the prohibition of force. Based on that comparison, they
also discussed the normative issue of whether the
jus ad bellum is too formalistic, critically reflecting on
the anxiety, shared by some scholars, that there is a problematic gap between doctrine and practice in
the field. Weaker answers were excessively descriptive and offered little analysis.
Question 3
There were surprisingly few answers on this provocative statement that suggested that the system for
collective security established under the UN Charter is prone to abuse and fails to lead to greater legality
than unilateral uses of force by states.
Question 4
There were no answers to Question 4.
Question 5
Another unpopular question, it invited students to consider the extent to which the prohibition of force
is a
jus cogens norm, and whether such a status plays a role in the interpretation of the prohibition and
of its exceptions.
SECTION B
Question 6
Several candidates attempted this question that invited them to explore the significance of the prohibition
to deny quarter and whether there was a duty to capture combatants instead of killing them. Successful
candidates addressed the text of API as well as contemporary state practice and military manuals to
examine the scope of the positive obligations that militaries have toward enemy combatants, and
whether the prohibition of denying quarter implies any positive duties toward enemy combatants.
Question 7
This popular question invited an examination of the different ways to interpret direct participation in
hostilities in the context of civilians who “voluntarily” participate by either physically or “legally” shielding
combatants. A few essays mentioned a different proportionality analysis that may or may not apply to the
latter. This question demonstrates the difference between the approach of the ICRC and that of the Israeli
court. Successful candidates offered doctrinal and policy considerations with respect to the proper
approach to this question.
Question 8
This very popular question required an analysis of the types of armed conflict and the ways to identify
them. It further invited an assessment concerning the difficulties in applying the legal definitions,
essentially raising the questions whether the difficulty of application result from lack of clarity or from
parties’ interest to deny that applicability of the relevant type of conflict (in the latter case, an
independent assessment might assist), as well as whether it was plausible that such independent
assessment would be feasible.
Question 9
Few responded to this question that sought an assessment of the usefulness of an intricate set of legal
rules that must be interpreted and implemented by young rrecruits with no legal background in the height
of battle. Simplistic responses emphasised complexity as an avoidable situation. Others. Recognising the
unavoidable complexity explained the division of labour within the military echelon and the role of legals
advisers and commanders to translate legal rules into simplified rules of engagement.
Question 10
This quite popular question invited candidates to explore the divide between the legal sources of the laws
concerning IACs and NIACs and to ask whether humanitarian values as interpreted and applied by
international tribunals can and should bridge the textual gap, and whether state practice reflects that
judicial effort.
LLM Paper 22 Advanced Labour Law: Examiners’ Report, 2021
The Advanced Labour Law course explores a number of linked topics in labour law, including: the
history and evolution of the contract of employment; the law governing wages in general and the
minimum wage in particular; the rise of the platform economy and its implications for the future of
work; theories of justice in the context of labour law; theory and method in labour law, with specific
reference to critical realism and theories of social ontology; statistical and empirical approaches to
labour law; comparative perspectives on collective labour law; the role of the concept of the
corporation in labour law; the development of international labour standards with specific reference
to the ILO and Council of Europe; EU social policy; labour law and climate change.
The 2021 exam consisted of sixteen essay questions drawn from the topics presented on the course,
with candidates instructed to attempt three answers. The broad scope of the exam was intended to
reward candidates who had studied particular topics in depth while also ensuring that all topics on
the course were covered in the exam. The essay format enabled candidates to display a range of
skills including the ability to synthesise diverse legal materials, compare and assess a range of
theoretical and disciplinary perspectives, and demonstrate familiarity with different disciplinary
perspectives on the subject-matter of labour law.
Eight candidates took the exam, six of whom were awarded Firsts, so the standard of answers was
very high. The most popular questions were those on the minimum wage (question 3, six answers),
gig work (question 4, four answers), and labour law and climate change (question 14, three
answers). Answers were otherwise evenly divided between the questions attempted (although
there were no attempts at questions 6, 7, 10, 11, 12, 13 and 16).
The better candidates did not simply reproduce arguments presented in the reading materials, but
drew on those materials to advance novel, innovative and interesting arguments of their own that
were structured in a mature, and convincing manner. Those candidates that clearly targeted the
question, and demonstrated a wide-range of contextual knowledge, and depth of analytical insight,
were rewarded for their efforts.
Question 1 invited candidates to consider the origins of the concept of the contract of employment
and to consider the influences on its evolution including industrialization and the welfare state. It
was very well answered by the candidate attempting it.
Question 2 was concerned with the role of social justice arguments for labour law and directed
attention to the growing literature on philosophical approaches to the subject. It received one
outstanding answer.
Question 3, on the minimum wage, was, as noted above, particularly popular with candidates (six
answers, three of them Firsts and three 2-1s). The stronger answers were able to give a clear
account of the different economic theories underlying wage regulation and to consider the relative
importance of efficiency-based and distributional arguments concerning the issue of wage
regulation. The best answers did not reproduce the articles on the reading list, but were able to
advance their own critical analyses.
Question 4, on the implications of gig work for the definition of the employment relationship, was
also popular, and very well answered (three Firsts and one 2-1). The best answers drew on the
secondary literature and made an attempt to contextualize gig work and the employment
relationship historically.
Question 5, inviting discussion of collective labour law from a comparative perspective building on
Kahn-Freund’s seminal observations, was well answered (one First and one 2-1).
Question 6 was concerned with the application of statistical techniques associated with leximetrics
and econometrics to the study of labour law.
Question 7 invited discussion of the literature applying legal origin theory to labour law and to the
related argument of the World Bank that labour laws had the potential to cause harm to workers in
the form of unemployment.
Questions 8 and 9 were concerned with aspects of the operation of the ILO, focusing, respectively,
on the issue of enforcement and on the debate over the role of international labour standards in
shaping global trade. Both questions were well answered (two Firsts and a 2-1 in the case of
question 8, and a First and a 2-1 in the case of question 9). The better answers used the secondary
material creatively, rather than merely reproducing the views of commentators.
Questions 10-13 were concerned with aspects of European labour law and social policy (respectively,
the legal regulation of the posting of workers; the scope and functioning of the European Social
Charter; the proposed EU minimum wage directive; and the social policy implications of the
Eurozone crisis).
Question 14, on the relationship between labour law and Anthropogenic climate change, was very
well answered (three First class marks). The answers drew on readings from the seminar on social
ontology and the legal form so as to place arguments about the Anthropocene in its wider context.
Question 15, on labour law in developing countries with specific reference to the issue of informal
work, was well answered (one 2-1 answer).
Question 16 invited candidates to consider the relationship between labour law and capitalism with
reference to the tradition of critical legal theory and scholarship.
6 July 2021
Paper 23
The Law of the World Trade Organization
2020/21
Examiner’s report
1. This question was very well done by all of those who attempted it. It required an
analysis of whether the measure at issue violated the national treatment obligation in
Article III GATT (yes), if so, whether it could be justified under Article XX GATT (no),
and whether such a claim could in any event be brought by a WTO Member whose
imports are not directly affected by the measure (yes). A point that could have been
dealt with better, on occasion, was the central relevance of the chapeau to Article XX.
This cannot be treated as an afterthought; it is often central to the analysis. One
candidate also nicely analysed the effect of
EC - Bananas (Art 22.6) on the retaliation
rights of Wellington, although this was optional rather than mandatory.
2. Most candidates that attempted this question did well. Good answers would explain
the absence of general exception clause in TRIPS, and consider various arguments as
to whether such a clause is necessary in the context of TRIPS. This in turn raises the
issue of IP rights as mere negative rights, the provisions on IP limitations in TRIPS, and
an interpretation of the agreement in light of its objectives and principles, as
mandated by the Doha Declaration. In light of the above, the question invited to
discuss whether these aspects offer a ‘real alternative’ to a general exception clause
as in Article XX GATT, or whether its absence in TRIPS is a ‘clear indication that IP
owner interests prevail over those of IP users, competitors and general societal
welfare’. Top answers could go further and question whether that might in fact be
welcomed for an agreement that is meant to protect the interests of IP owners
abroad.
3. This question was reasonably done. However, it was not sufficiently noticed that the
core of the quotation was precise: it was about the obligation of the respondent to
specify its ALOP, rather than leaving an ALOP to be ascertained based on other
evidence (including the measure at issue). The question was not about the right of a
respondent to choose its own protection, nor about necessity tests (either there, or
elsewhere) in general. Good answers emphasised the apparently contradiction in
Australia – Salmon on this point, along with subsequent cases. Other elements of the
necessity test were only relevant insofar as they shed light on the ability of the panel
(or AB) to carry out its functions in the absence of a clearly stated ALOP.
4. This question focused on the Appellate Body’s jurisdiction to make determinations on
municipal law. As such, it required an analysis of municipal law as fact or law, and an
analysis of the Appellate Body’s jurisdiction. Answers were reasonable, and one was
particularly good, going into some detail on the Appellate Body’s treatment of
municipal law in various reports, and referring to the controversy this has provoked
within the WTO General Council.
5. This question was not answered by any candidate.
6. This question (based on the EU-UK Trade and Cooperation Agreement) required an
analysis of FTA-authorised trade restrictions in violation of specific WTO obligations.
There were several points to address. One was whether the complainant who is an
FTA party was precluded from bringing an action in the WTO. This required
consideration of
Peru – Agricultural Products. Another, albeit less critical, concerned
the question whether Article XXIV provided a defence to such violations on the basis
that retaliatory measures might be necessary for the formation of the FTA. The single
answer to this question was reasonably good.
7. This was a popular question. The best answers considered what it means for a rule to
be an exception in WTO law, including the allocation of the burden of proof, and the
relevance of the intention of the regulating party. Others remained at the level of
setting out what the Appellate Body has said about the ‘legitimate regulatory
distinction’ in Article 2.1 TBT without much analysis of the question itself. But on the
whole the question was well done.
8. Four students attempted this question of which most did well. Good answers showed
an understanding of the content of ‘level playing field’ obligations (such as certain
minimum standards plus ‘non-regression’ on labour and environmental standards), as
well as of the fact that these obligations concern, at least in part, production
standards. Very good answers might then point out that the regulation of production
standards contradicts the notion of free trade that sees such regulation in a producing
country as entirely its own business. Additionally, answers could draw on an analogy
with the regulation of subsidies and the protection of intellectual property in the 1995
WTO agreements.
LLM Paper No 24 International Criminal Law 2021
Question 1
This question invited students to compare three decisions dealing with the same
legal question in a different manner. A good answer would put the emphasis on
comparing the different methodologies in terms of sources of law/treaty
interpretation. This required fairly abstract analysis and a good understanding of
the underlying issues of international humanitarian law. It being a challenging
question, few students attempted it.
Question 2
No one attempted this question.
Question 3
This question invited reflection on a rather detailed technical legal question and
to discuss its implications in practice. A good answer identified the practical
problem and compared the different approaches that have been proposed in the
jurisprudence of the ICC, both in terms of their methodological soundness and in
terms of how well they did in terms of solving the problem. On this basis a
suggestion was made for how to tackle the danger of overcriminalisation
Question 4
Question 4 posited a broad and open-ended proposition that could be tackled from
different angles. A good answer would identify the main weaknesses in the system
of cooperation, as they have surfaced in the practice of the Court and the Assembly
of States Parties. It would then focus on some key problems, like refusal to
surrender suspects or rebuffing of requests to provide evidence/information and
illustrate this on the basis of specific cases. Weaker answers tended to get lost in
details that were not properly put in context and the relevance of which was not
sufficiently explained.
Question 5
This was a very popular question inviting a discussion of the principle of
complementarity and its relationship with the number of cases that reach the ICC
as a measure of its efficiency. The weaker answers offered a general overview of
the principle of complementarity. The stronger ones engaged with the terms and
claims in the question using as reference both scholarly authorities and the case
law of the Court. They addressed the tension between the theory and practice of
complementarity in light of its normative function.
Question 6
Several students answered this question, which invited a comparison between the
interplay between criminal justice and politics on the domestic and international
planes. The best answers gave a definition of ‘politics’ and engaged critically with
both claims in the question using a wide range of scholars but also the terms of
the Rome Statute allowing political considerations to come into play. Strong
1
answers also discussed the role of self-referrals in the practice of the Court and
critically evaluated the roles of the Prosecutor and the Security Council.
Question 7
This was another popular question asking the students to engage with the
reasoning of the ICC Appeals Chamber in the Jordan Referral with respect to the
absence of immunity of Heads of State before international courts. The stronger
answers evaluated critically the different reasoning adopted by ICC Chambers and
other international courts on this point. The best answers also addressed the
normative reasons for granting immunity
ratione personae and the underlying
methodological question regarding the formation and identification of customary
international law.
Question 8
No one attempted this question.
Question 9
Question 9 was a very popular question that was attempted by almost all
candidates. A good answer would discuss the facts in light of the legal criteria and
clearly identify the different duties of the several military superiors. Given the
complexity of the fact pattern and the word limit, this required focusing on the
most determinative elements. Weaker answer would mainly flounder in this last
regard and get lost in discussing issues that were less relevant. Some would also
‘simplify’ the analysis by making assumptions about the facts that were not given
in the question.
Question 10
This question was relatively popular and required students to demonstrate their
understanding of the basic principles of international humanitarian law on the
basis of a set of facts that provided some but not all the information that one would
ideally like to have. The best answers would integrate this uncertainty in their
analysis and indicate what its implications were. The weaker answers would try
to avoid the uncertainty by making assumptions or largely ignoring the problem
of imperfect information.
Question 11
Question 11 was not a popular question. It required students to analyse a fact
pattern on the intersection between international humanitarian law and the
crime of aggression. Good answers would clearly distinguish between the two
legal domains, identify which factual elements were relevant for each, and
analyse them in some detail. The weaker answers would revert to providing a
summary overview of the law and a rather shallow discussion of the facts.
2
LLM Paper 25 (2021) International Human Rights Law
The best answers addressed the question asked, provided a detailed, focussed and
structured argument, were analytical in their approach, demonstrated insight and
independent thinking and made good use of legal material and academic commentary.
Weaker answers tended to avoid answering the question directly (i.e. failing to engage
with the precise terms of the question, often as if following a prepared text), provided
only a superficial analysis of the issues, were muddled in their argument, replicated
current positions of treaty bodies, and/or were highly descriptive (i.e. gave an uncritical
textbook-style account of the legal material and secondary literature).
Question 1 This was a very popular question, that almost invariably offered the argument that both
mainstreaming of women’s rights and specialised bodies were necessary. The
difference among the best essays and the rest was the use of examples to demonstrate
the points made (very few essays referred to examples), the careful treatment of the
relevant scholarship, and the critical treatment of the matter.
Question 2
This was one of the most popular questions, attempted by half of the candidates. It
invited a discussion about whether much ink has indeed been spilt over the history of
human rights and whether history matters. The expectation was that candidates would
engage with the plurality of histories of international human rights law and that they
would evaluate critically whether and why they matter. The stronger answers engaged
with both parts of the question, evaluated critically the different histories of human
rights and linked them to the present state and the future development of the field.
Question 3 Only one candidate attempted this question which invited a discussion of the unique
role of UN human rights treaty bodies, and the HRC acting under the Optional Protocol
in particular. The expectation was that candidates attempting this question will engage
critically in an analysis of the expected role of the HRC – whether it should function as
a judicial body.
Question 4
This was a popular question. Most essays examined critically the use of the deferential
doctrines by the ECtHR and discussed whether the same approach should be adopted
by the HRC. The best essays explored the unique role of the HRC as an international
(and not regional) body that preforms a function that is not exactly judicial.
Question 5
Several candidates attempted this question that called for assessing the need for
protection of the rights of members of minorities beyond individual rights. The
lack of a formal definition of a minority in international law was rightly not seen
as an indication that such protection was not necessary. The best essays explained
how IHRL protects the collective dimension without being bothered by the non-
1
existence of a legal definition of minority and, in fact why the lack of definition is
conducive to an evolutive approach open to including more groups as protected.
Question 6
A good number of candidates attempted this question, which invited candidates to
assess the territorial scope of states’ obligations in general and in the context of
pandemics in particular. The best essays showed acquaintance with recent scholarship
and positions of treaty bodies and other global actors, but didn’t take them for granted
and instead independently weighed whether they reflected good reading of the law.
Very few addressed the last point raised by the quote concerning debt reduction.
Question 7
A few candidates attempted this question, which invited discussion of the justifications
and theories of human rights. The best answers engaged critically with all claims in the
question and with the scholarly debates on equality situating them in the broader
context of the possible justifications of human rights. Some candidates also
successfully integrated various critiques of human rights and applied them to the quote.
Question 8
A number of candidates answered this question, which invited engagement with the
Marxist critique of human rights by reference to the other critiques. The best answers
offered a nuanced interpretation of the question and situated it in the broader economic
and normative contexts unpicking the tensions between protecting the individual and
the collective in international human rights law. Some made very good use of modern
day examples to illustrate the continued relevance of the critiques.
Question 9
This was a popular question asking for a critical evaluation of the so-called generations
of human rights with a focus on the second generation of economic, social and cultural
rights and the right to benefit from science as an example of this generation. The best
answers questioned the usefulness of dividing human rights into generations in the first
place and the underlying assumptions that this entails. They proceeded to apply these
assumptions to the current state of development of the right to benefit from science in
order to draw conclusions as to the present day accuracy of Lauterpacht’s quote. Some
used excellent examples from the COVID-19 pandemic to illustrate their points.
Question 10
Another very popular question attempted by over half of the students. The weaker
answers engaged in a general discussion of the right to life. The strong answers
2
analysed the nuances in the language of the question and engaged critically with the
progressive understanding of the right to life that it offered. The best answers discussed
what is the original status of the right to life and compared and contrasted the meanings
of a right to subsist and a right to self-development. There was also discussion of the
relevant concept of the right to a dignified life.
3
Paper 29
International Investment Law
2020/21
Examiner’s report
Question 1
This question attracted a handful of answers. On the whole, it was tackled well. The quote
raised two principal issues, namely (1) whether the
only justification for investment treaties
is that they lead to greater foreign investment; and (2) if they do not, whether they should be
abandoned. Although there was no single ‘correct’ structure, most answers rightly structured
the essay along these lines. The weaker answers discussed backlash to investment arbitration
in general terms without linking the points made to the particular quote set.
Question 2
This was a popular question and, on the whole, addressed appropriately. There were some
excellent answers which demonstrated deep knowledge of this area of the law. The best
answers addressed a range of points, including: the status of the police powers doctrine;
whether it is a rule or an exception; the consequences that follow from whether it is a rule or
an exception, for example, relating to the burden of proof; and whether the doctrine applies
beyond the expropriation context. Some answers did not address this last point and were
marked accordingly.
Question 3
This was another popular question and also addressed well. It was a problem question on a
fair and equitable treatment and full protection and security provision in a mock BIT, applied
to a series of different fact patterns. The best answers discussed (briefly) whether the FET
clause in the question incorporated the international minimum standard (
Neer), and, if so,
whether this made any difference. Better answers also dealt with each fact pattern on its
own, rather than bundling them under legal headings: that risks an imprecise analysis of how
the law applies to the facts. Most answers dealt competently with the caselaw (especially the
majority vs dissent in
Bilcon). The better answers were also able to evaluate rather than
simply reflect different lines of interpretation, and give a reason for preferring one over the
other, where possible.
Question 4
This problem question was only attempted by one candidate. The answer was very well done,
dealing concisely and accurately with a series of complicated issues involving the question
when a dispute arose, the application of an MFN clause to procedural issues, and the
application of an MFN clause to treatment granted under a treaty incorporating a third treaty
by reference.
Question 5
This was a question on whether ICSID jurisdiction covers investors who are owned by
nationals of the host state. All answers discussed the award (majority and dissent) from which
the quotation was taken. The better answers sought to understand these different
approaches. Some discussed interpretative methodology, especially whether a teleological
approach to interpreting the ICSID Convention could justify piercing the corporate veil to deny
the benefits of a BIT to an investor owned by host state nationals. One particularly good
answer focused on whether the ICSID Convention should defer to the expressed choice of the
treaty parties on this point. As usual, the best answers sought to make a case for one reading
over another, rather than recording the views of others and then offering some brief
concluding thoughts.
Question 6
Some of the answers to this question were relatively weak. A number of answers did not
engage with the quote, instead, taking the opportunity to provide a rather general critique of
ICSID arbitration. Answers needed to engage at the very least with whether states permit
private adjudicators to review public policies and whether adjudicators may ‘effectively
annul’ acts of the ‘legislature, executive, and judiciary’. Addressing the ‘effectively annul’
aspect of the question required engagement with the case law on reparation.
Question 7
Question 7 was attempted by a handful of students. It required analysis of the difference
between a treaty claim and a contract claim; and, in particular, the impact, if any, of an
exclusive jurisdiction clause. Stronger answers engaged fully with the relevant (and varied)
case law, structured their answers well, and considered a broad range of points such as
jurisdiction v admissibility, waiver and abuse of rights.
Question 8
The quality of answers to this question was mixed. All answers dealt with the
Neer award, but
not all managed to present a coherent argument about what this means for the international
minimum standard today. Some candidates, perhaps, had an insufficient background in public
international law to realise how customary international law is formed, and how it relates to
treaty law (in this case BITs). The best answers were able to discuss how an international
minimum standard is able to change over time. In terms of the developed/developing country
dichotomy, some answers also confused the meaning of the
Neer standard in 1926 (pro
capital importing country) with its meaning now (in context, pro capital exporting country).
The best answers showed evidence both of understanding not only of the law and of the
policy implications of different legal interpretations: one without the other is not sufficient
for a question of this nature.
Question 9
Answers to this question were mixed in quality. The best answers dealt not only with the
literature on the question (survival clauses) but also mentioned the most important recent
award:
Bahgat v Egypt, and provided a critique. Issues to consider: the relationship between
interpretation and termination provisions in the Vienna Convention; the relevance of the
Vienna Convention provisions on third party rights (and whether investors qualify); and more
generally the position of states as ‘masters of their treaties’.
Question 10
This question was on the whole well done. It required a discussion of the different ways in
which the rules on reparation had been treated in ISDS awards, distinguishing between
tribunals applying them directly and those applying them by analogy. Better answers
discussed whether the implications of seeing investor rights as direct or derivative, and some
very good answers also discussed the possibility that customary international law might have
evolved to encompass reparation rights for investors. Most answers discussed the different
reparation rights and how these might apply to investors; the better answers linked this to
the question at issue, rather than just running through the caselaw.
Examiner’s Report for Paper 30 – LLM Jurisprudence – 2020/2021
The results in this year’s examination in LLM Jurisprudence, as in the last year, were very pleasing
indeed. A fair proportion of candidates achieved a First, and no candidate fell below a 2.1. Many of
the 2.1’s were high and fairly close to the borderline for a First. There was not a single script that
exhibited serious gaps in knowledge of the content of the course. Many of the scripts gave evidence
of excellent preparation, of great enthusiasm for the topic, and of a capability to address key
jurisprudential questions in original and creative ways.
It may be that the online format of this year’s exam is responsible, in part, for the strong impression
left by the scripts, together with the fact that this was a strong and highly engaged group of
participants. It may be that the hybrid teaching format in the LLM this year offered ample
opportunity for discussion and revision. At any rate, the format of teaching and examination seems
to have helped all candidates to showcase their strengths more effectively. The examiner has not
identified any instances of plagiarism or collusion in the scripts.
Since this paper has no rubric, candidates were free to choose any three questions (out of 10
questions in all). In contrast to previous years, some questions generated much stronger interest
than others. Questions 1 (on the usefulness of the concept of sovereignty as a jurisprudential
concept), 2 (on whether Hart’s talk of a minimum content of natural law constitutes a serious
concession to natural law theory) and question 4 (on the Hart-Fuller debate) drew by far the largest
number of responses. There were fewer answers to the questions on Radbruch, Dworkin and Finnis,
though it should be said that almost all of the answers on these questions were quite good, slightly
better on average than for the more popular questions. The pattern may suggest that the in-person
lecturing in the Michaelmas term generated greater engagement – or else it may indicate a relative
lack of interest in natural law theory.
The answers that were given do not suggest, then, that candidates had problems with any particular
topic. One quality that many successful answers exhibited was a combination of good knowledge of
the material (including primary and secondary sources) and of the ability to offer a well-reasoned
critical assessment. It was refreshing to see that candidates were not at all shy to present their own
arguments and ideas, at times to rather good effect.
Responses to question – on whether Hart’s critique of Austin shows that the concept of sovereignty
is jurisprudentially useless – tended to exhibit a very good understanding of Hart’s critique of Austin.
However, there were few answers that did take the issue forward, for instance by asking whether
sovereignty needs to be understood in Austinian terms, by investigating where Hart’s critique might
leave the notion of parliamentary sovereignty, or by discussing Hart’s attempts to accommodate
some aspects of sovereignty in his theory (for instance in the discussion of the idea of legislative
supremacy).
Discussion of the minimum content thesis in question 2 was generally competent and well-informed,
the same holds for responses to question 4 on the Hart-Fuller debate. Some of the answers to
question 3 on Radbruch were very strong and did provide evidence of good background knowledge
going beyond the content of the assigned readings. There were not very many responses, as pointed
out above, to the questions on Dworkin’s conception of adjudication (questions 5-7), but the
responses given were generally insightful and showed good understanding. The same holds for the
limited number of responses to questions focusing on Finnis’s natural law theory (questions 8-10).
Only two candidates chose the essay option, which was offered for the first time this year in Paper
30, and will be discontinued for the LLM next year. Both candidates acquitted themselves well and
submitted strong essays.
Candidates in this course should be congratulated for their strong performance overall.
EXAMINER’S REPORT, 2021
LLM PAPER 31
TOPICS IN LEGAL & POLITICAL PHILOSOPHY
Nineteen students underwent the examination in this course. On the whole, the results were
excellent. There were eight first-class marks, and two other students attained 139 marks that
might be raised to the first class in advance of the Examiners’ Meeting. There were no marks
below the 2:1 level, and there was only one mark below the level of 130.
In short, the performances this year on the examination were better than in any typical year.
The take-home format works extremely well in this course, and I intend to retain it even after
the COVID-19 catastrophe has been fully overcome. (The standards for marking were the
same as in any previous year.) Given the perspicacity and enthusiasm of the questions which
the students posed during my office hours, I am not at all surprised that the results attained by
them on the examination are outstanding.
June 2021
LLM Paper 34 (2021) Exam Repost
The best answers addressed the question asked, provided a detailed, focussed and
structured argument, were analytical in their approach, demonstrated insight and
independent thinking and made good use of legal material and academic
commentary. Weaker answers tended to avoid answering the question directly (i.e.
failing to engage with the precise terms of the question, often as if following a
prepared text), provided only a superficial analysis of the issues, were muddled in their
argument, replicated current positions of treaty bodies, and/or were highly
descriptive (i.e. gave an uncritical textbook-style account of the legal material and
secondary literature).
Question 1 This popular question invited an assessment of the legal and policy grounds that
creates a disjunction between the IO and the member states’ responsibility. Several
responses focussed only on the first part (IO personality) implying that the lack of
state responsibility is part and parcel of that independence, but stronger questions
explored the potential and consequences of expanding member states’ human rights
responsibility for IO’s failures, e.g. by the doctrine of equivalent protection.
Question 2 The statement invited candidates to refer to the accuracy of the claim that states are
bound by their consent only, as well as the accuracy of the claim about sovereign
equality, and the additional claim that these two initial claims ensure that
international law reflects all states’ interests. Several strong essays explored the
Lotus principle and suggested that the constraint about sovereign equality is in fact
in tension with state consent and in fact limits states’ freedom of action quite
significantly, to the extent that it questions the validity of the assertion that states
are only bound by their consent, and further limits at least somewhat the power of
powerful states to shape the law.
Question 3 Several candidates attempted this question which invited an assessment of the
potential and limits of IOs in correcting political market failures within states and
within IOs. Successful essays engaged with the literature critically while offering
helpful examples.
Question 4
A few essays addressed this question which examined what is “cyberspace”, whether
international law applied to it, and if so how. Successful responses addressed recent
state practice and scholarship as well as theoretical and policy arguments.
Question 5
This popular question invited candidates to reflect on the ways by which
international tribunals can address ‘the problem of disregard’ by adapting their
standard of review of decisions by domestic actors (legislators, regulators, courts) as
well as global actors (IOs, other international tribunals). Successful essays
demonstrated the various permutations of review by offering examples from exiting
cases.
Question 6
A few candidates attempted tis question which invited them to examine the impact
of the Weiss judgment on the functionality of the EU, and to generalize this discussion
to IOs in general. Successful candidates argued about the pros and cons of the German
court’s position after elucidating its approach.
Question 7
Strong answers to this question explored not only the role being played by private
actors in monitoring health risks but also whether this meant that states were
actually relieved of their traditional role in this area (considering, for example, what
that role might have been and whether that role has simply changed). Very good
answers thought about the reasons why private actors are involved in this area and
what this means for global governance and the role of the state today.
Question 8
Weaker answers tended to consider only whether international law does and/or could
apply to global digital platforms, often focusing exclusively on free speech. Stronger
answers engaged critically with the proposition that platforms have become
“transnational sovereigns”, and showed that they have a very strong grasps not just
of the literature but also of recent developments. Some candidates argued for a more
expansive view of international law while others thought about creative ways in which
international law may in fact be useful for (if not also a constraint on) digital platforms.
Question 9
This was another popular question and one that was generally done very well. Most
candidates demonstrated an excellent grasp of the relevant jurisprudence and recent
developments. Strong drew comparisons between courts and thought critically and
creatively about why courts differed in their approach (although some found
consistency among the decisions) and how obstacles to securing responsibility could
be overcome.
History of English Civil and Criminal Law
Fifteen candidates took the paper. Overall the paper was very well done, with seven candidates
achieving first class marks. Most candidates displayed evidence of having understood the issues
thrown up by the subject. The commonest faults were: too heavy reliance on the standard textbook
or lecture handouts; a failure to focus on the question asked; and a failure to think hard about the
question asked, to see if there might be a sting in the tail inviting deeper analysis.
Question 1 (Statute of Uses) was popular. A number of decent answers went through the standard
arguments that Henry VIII’s purpose in pushing through the Statute was to increase his revenue as
well as improving security of title; and the main mechanisms for the avoidance of the Statute were
well described. A minor issue with several answers was that the Statute of Enrolments was a
response to a drafting blunder recognised late in the day; but to the understanding of the examiner
and assessor it was from the start an intended part of the legislative programme. More seriously,
few candidates thought to ask what Francis Bacon – no slouch as a lawyer – must have thought the
purpose of the Statute was if he could describe it as perfectly penned; nor to ask whether its
purpose was being subverted by 1600.
Question 2 (Magna Carta clause 34) was less popular, but those who were brave enough to attempt
it did so well. Our normal understanding of the developments of the late 12th century is that the
assizes of novel disseisin and mort d’ancestor had provided channels to move litigation from lords’
courts to the king’s; but in that light, it is not easy to see why cl. 34 should focus on the writ of right
praecipe. There is no clear answer, but those who attempted the question faced squarely up to the
problem.
Question 3 (alienation of land) attracted only one answer. Alienations to an unrelated neighbour and
to the church are (relatively) straightforward to deal with; the sting in the tail is the alienation to
one’s eldest son. The prohibition against being lord and heir was recognised, and it may be that it
would be caught by the Statute of Marlborough chapter 6 (which should have been known from a
later seminar). A perfect answer would have dealt with the suggestion in
Bracton that the father
might simply accelerate the inheritance by allowing the son to step into his shoes.
Question 4, a well-known quotation from Maine’s
Ancient Law, required candidates to discuss
fictions, equity and legislation. It attracted a few answers, most of them good. The crucial thing was
to consider the relationship between these three phenomena, as most candidates saw, which
required collecting together information from several seminars.
Question 5 (‘Not doing is no trespass’) was relatively straightforward. It attracted only three
answers, perhaps because candidates recognised that it was too easy for comfort. Those who did
attempt it did so very well, demonstrating a depth of knowledge going beyond the standard
textbook and lecture material; they were duly rewarded.
Question 6 (assumpsit and debt) attracted no answers.
Question 7 (libel), by contrast was hugely popular, with answers ranging from the mediocre to the
very good. The topic is very much a minor part of the history of defamation, and it reflected well on
those who produced good answers that they had studied and reflected upon this later by-way of the
subject. The pitfall, not avoided by all, was to begin with the ecclesiastical legislation of 1222 and
then tarry too long in the sixteenth century. Some introduction to the seventeenth and eighteenth
centuries was essential, but it needed to be kept to a minimum so as not to blunt the focus of the
answer.
Question 8 (crime) was straightforward, with most answers comfortably at the upper-second level,
showing a good understanding of the current orthodoxy. One or two candidates were able to dig
rather deeper and were rewarded accordingly. More than any other question on this paper, it
revealed the fundamental truth in open-book exams that the easier a question is, the harder the
work required to produce an answer at the distinction level.
Question 9 (Roman Law) attracted two competent answers. The difficulty with the first alternative,
dealing with the period before 1250, was to integrate the two principal elements: the extent to
which Roman law had influenced the twelfth-century property legislation and the role of Roman law
in
Glanvill and
Bracton. The second alternative, between 1250 and 1500, invited candidates to
evaluate and make sense of such evidence as there is in this period.
Question 10 (quasi-contracts) required candidates to lift their eyes from ‘restitution’ and ‘unjust
enrichment’ and focus rather on non-contractual assumpsit generally, with ‘unjust enrichment’
forming one element within this. The temptation, which had to be resisted, was to rely too heavily
on the mainstream texts on the history of unjust enrichment from the Middle Ages onward rather
than on the situations described as quasi-contractual by John Cowell and William Blackstone.
LLM Paper 36 – International Intellectual Property Law
EXAMINER’S REPORT
Question 1: Just under half of the cohort attempted this essay. Candidates were expected
to identify the “traditional fora”; explore whether rightholders had been dominant in such
fora; whether the effect was that the rules developed were not equitable or balanced; to
consider what other international for a were available; and whether developing countries
had an increased chance of gaining equitable or balanced rules in such fora. Most answers
identified WIPO (and its predecessor BIRPI) as a traditional forum, and considered
rightholder influence on the development of the Paris and Berne Conventions. Many
answers drew on the academic literature and the better answers gave examples where the
outcomes might be seen as inequitable or unbalanced, exploring both those concepts.
Good answers also acknowledged that the story was not simple; as former colonies became
independent states, rightholders represented by governments of developed countries did
not find it easy to get their way, leading to something of a stalling in international law making
in the 1970s and 1980s. Some consideration was expected as to how different voices are
accommodated within the WIPO structures. Turning then to the alternative fora, some noted
the potential benefits for developing countries from regime-shifting to specific fora e.g. the
WHO or Food and Agriculture Organization, or instruments such as the Convention on
Biological Diversity and its Nagoya Protocol, or international organisations such as
UNESCO on education. Most candidates recognized some potential wins and explored why
these fora were better at accommodating the interests of developing countries or producing
more equitable outcomes. The best candidates noted that regime shifting was equally a
rightholder tactic: classically with the shift from WIPO to GATT/TRIPs to overcome
stalemate at WIPO, but also from TRIPS to FTAS, IIAs, bilateral and regional arrangements.
In so far as technical expertise in treaty negotiation etc is one part of the explanation for
imbalanced international laws, additional regimes seems to favour the better resourced.
Some candidates also noted “wins” for developing countries in traditional fora represented
by eg the Marrakesh Treaty at WIPO or the Doha amendment of the TRIPS. The best
answers offered a clear argument from the start and used examples. The average mark
was 69%.
Question 2 has not been very popular among the candidates. It concerned the expansion
of non-discrimination rules in the TRIPS Agreement and their application by WTO Panels,
as compared to the system of national treatment found in previous treaties such as the
Paris- or Berne Convention. Good answers would explain the nature and effect of the
expansion, including with reference to WTO case-law (including not only EC – GIs, but also
Canada – Patents, since the notion of ‘non-discrimination is broad enough to encompass
the non-discrimination rule in Art.27:1). The quote invited candidates to evaluate this
expansion as to whether it constitutes ‘ill-conceived and one-sided intrusions of trade law
concepts into a nuanced system of national treatment’. Here, good answers would include,
for example, the issue of de facto discrimination and whether that then requires the
possibility of justification, as well as the role of MFN next to national treatment.
Question 3: Half the cohort answered this question, which was done very well. The average
mark was 71%. Good answers broke the question down into its component elements. Is it
a core aim of trade mark law that all marks should be used in commerce, or merely a
premise that trade marks will be used in commerce? What alternative goals might there be
(eg minimising consumer confusion)? Is protection by trade mark law meaningless without
this purpose of promoting use of marks? How far does the purpose need to be recognised
in Article 20, and other international TM rules (e.g. Art.16, 17 TRIPS, Art.6qq PC)? If the
purpose does need to be recognised, how could this be achieved (especially on Art.20, 16
which are specifically addressed)? What would it mean for the scope of those provisions?
Do findings of Panel and AB on Art.20, 16 TRIPS not sufficiently recognise this essential
purpose? Does this hence not amount to a balanced interpretation under Art.7 TRIPS? The
better answers addressed these points, carefully analysing the Panel and Appellate Body
decision, within a structured argument.
Question 4 had been attempted by almost half of the candidates – most of which provided
decent answers. It concerned the relationship between intellectual property protection and
human rights, invoking examples of addressing human rights considerations via IP treaties
(the Marrakesh treaty and its references to the three-step-test), and protection of IP rights
via the right to property under the 1st Protocol to the ECHR, as applied by the ECtHR. Good
answers included conceptual distinctions between IP rights and human rights, considered
the issue of ‘subordinating’ human rights to IP protection in the case of integration into IP
treaties, and contrasted that with the consideration given to IP rights and other (public as
well as individual) interests and rights under the ECHR, as primarily evidenced in the case
law of the ECtHR on IP rights as ‘possessions’. The question then invited for a normative
evaluation where candidates should address which of the two (or yet other) approaches is
‘better and more viable’ – which in turn required to investigate how such a judgement was
to be made: perhaps as a question of which system is better designed for accommodating
the interests of the other? Or in terms of how much discretion is left for national law-makers
and domestic decision-makers?
Question 5 had only been chosen by few candidates who all did well, some exceptionally
well. It concerned the right to regulate in customary international law and its role under the
TRIPS Agreement. Based on how it had been relied upon in PMI vs Uruguay, candidates
should focus on its role as an interpretative tool, and how this would fit with the objectives
and principles of TRIPS, and the broader approach for recognising and giving effect to
public health considerations, as set out in the Doha Declaration on TRIPS and Public
Health. In this regard, the quote explicitly invited for a discussion on whether TRIPS forms
‘exhaustive lex specialis’, hence barring any invocations of a right to regulate, even if merely
via treaty interpretation. Good answers would question whether the TRIPS consistency test
in Art.8:1 actually confirms the lex specialis approach – including by discussing how Art.8
(and this test) has been relied on in WTO dispute settlement and by WTO Members in the
Doha Declaration.
Question 6 :This question was done by 33% of candidates. Most gained mid 2:1 marks,
though there were a couple of first class performances. It was important to explore all the
provisions of Freedonian law and arguments raised by Authoria. The best answers were
clearly familiar with the structure and detail of Berne, the TRIPs Agreement and WCT, as
well as the commentaries thereon. On (i), one could consider three distinct potential
objections: (a) the requirement of registration – in particular is this a formality, that is a
condition on the existence or exercise of the right?; (b) the aspect on non-assignability; and
(c) the fact that protection after 50 years pma was not in form of an ‘exclusive’ right (but to
obtain adequate remuneration). On (ii), candidates should discuss Freedonia’s obligation
under Art 9 BC to recognise a right of reproduction “in any manner or form” as well as the
scope of this obligation and status of the Agreed Statement to Article 1(4) WCT, and its
implications. It was also expected that candidates would recognise the significance of
Article 8 WCT, as well as the Agreed Statement to Article 8 WCT. However, the key
question here is how far these treaties serve to identify who is responsible for the act: who
“reproduces” and who “makes available”? On (iii) it was expected that candidates would
discuss Article 10(1) BC, in particular its mandatory status and scope; its relationship with
Article 9(2) BC as well as with Art 10 WCT and TRIPS. This in turn allowed to discuss
questions such as what is meant by quotation? Is it sufficient to constitute a “quotation” of
musical or audio-visual works that it is included for the purpose of entering into dialogue?
Are there other requirements of quotation eg distinctness or relative shortness? Does a
fixed rule (less than 1 minute) meet the proportionality and fair practice requirements of Art
10(1) BC (irrespective eg of what a user adds)? What about attribution (BC Art 10(3))?
Might revised section 40 satisfy Art 10(1) BC but not Art 10 WCT or Art 13 TRIPs? If the
provision does not comply with Art 10(1) can it be brought within Art 9(2) or the minor
exceptions doctrine?
Question 7 was one of the most popular questions in the exam, undertaken by more than
half of the candidates. As a problem question, it concerned issues of scope of international
IP treaties, obligations to offer national treatment, as well as IP enforcement – with the
principal issues to be addressed raised in the arguments of the parties. On the scope of
TRIPS vis-à-vis utility models, good answers would adopt a nuanced approach that
carefully considered the relevant provision at issue (including Articles 3, 41, 51-60),
including in light of the relevant WTO dispute settlement case-law (in particular US –
Sec.211). Non-discrimination arguments in turn should have been discussed not only under
Art.3 TRIPS, but also Art.2 of the Paris Convention. In the case of the Paris Convention, a
key issue relates to the inclusion of de facto discrimination arguments (unless one would
find convincing argument for a de jure discrimination); while as for TRIPS, the inclusion of
utility models along the lines of US – Sec.211 should be problematised. Similar issues of
scope arise under Article 41 and the specific border measure provisions invoked (in
particular Articles 52 and 55). In addition, good answers would carefully consider the notion
of ‘barriers to legitimate trade’, and the specific conditions set out in Articles 52 and 55, and
apply them to the facts in the problem question.
Question 8 finally has also been quite popular, with about 40% of all candidates opting for
it. With the fact pattern describing a shift in the position of domestic courts on a specific
matter of patentability, the question concerns the protection of IP owners as investors under
international investment law. Based on the arguments made by the parties, candidates
where expected to discuss breaches of the denial of justice, fair and equitable treatment,
and expropriation standards set out in the BIT at issue. Good answers would address the
role of any ‘dramatic change’ (as per Eli Lil y vs Canada) in the decisions of domestic court
for the denial of justice standard; the extent to which investor’s can legitimately expect the
host state to comply with the TRIPS Agreement, and the operation of the ‘safeguard clause’
under Article 5.2 of the BIT in the context of expropriation (which in turn raised questions of
compliance with Articles 32 and 27.1 TRIPS). Such answers should not only rehearse the
relevant legal doctrine, but carefully apply these doctrine to the facts at issue. A further
issue that some spotted was whether the investor could actually invoke any of the standards
of protection mentioned above, since Article 1 of the BIT refers only to IP rights ‘granted in
accordance with the law of the host state’ – where different arguments about how this
clause applies to the facts at hand could be made.
Examiners’ Report
LLM 2020-21
Paper 39: Legislation
22 candidates sat the examination. The standard this year was high. Most candidates were
able to provide detailed accounts of relevant information and, more importantly, to critically
engage with the material and to provide their own arguments in response to key issues. They
also demonstrated an excellent ability to focus on providing an argument in response to the
specific question asked, as well as placing these arguments in their wider contexts, drawing
on material from across the range of topics studied on the course. Candidates also drew on
detailed accounts of UK law and evaluations of their own legal system. All candidates also
demonstrated a very good ability to keep up to date with recent developments in the law,
drawing on current examples studied through the year (e.g. the legal response to the
pandemic and the Brexit process). A number of outstanding candidates produced some truly
outstanding answers, developing their own arguments whilst critically engaging with a wide
range of secondary as well as primary materials. Weaker candidates still demonstrated an
excellent knowledge of the material but were less able to use this to provide an argument in
response to the specific question asked.
The distribution of marks was as follows:
First
32%
2(i)
59%
2(ii)
9%
Third
0
Fail
0
Specific Comments
Question 1: ‘The object of statutory interpretation is to ascertain the intention of Parliament.’
(EKINS). Discuss.
This was one of the most popular questions on the paper, producing a range of outstanding
answers. The question focused on an assessment of the role of the intention of Parliament
and the interpretation of legislation. Candidates were able to evaluate a range of criticisms of
the determination of the ‘intention of Parliament’, drawing on theories of interpretation and
of constitutional law. Stronger candidates also focused on the extent to which ascertaining
the intention of Parliament was an object, if not the object of statutory interpretation,
explaining other factors relevant to statutory interpretation and their relative importance.
They also drew on comparisons between the work of Ekins and of Lord Burrows.
Weaker candidates were able to give good accounts of different theories of interpretation,
but spent less time explaining how and why the object of statutory interpretation is to
ascertain the will of Parliament.
Question 2: ‘The balance of power between the legislature and the executive lies at the heart
of any constitution. However, this balance of power is often undermined by the lack of scrutiny
over delegated legislation.’
Discuss
This was a fairly popular question. The question required candidates to evaluate the extent
to which the lack of scrutiny over delegated legislation could potentially undermine the
balance of power between the legislature and the executive. There was a wider range of
answers in response to this question. Stronger candidates provided a good evaluation of
different types of delegated legislation, providing examples of skeleton Bills and Henry VIII
clauses, as well as providing a detailed evaluation of the reality of scrutiny over delegated
legislation in the Westminster Parliament. These answers also evaluated the extent to which
legal controls may be able to remedy some of the potential undermining of the balance of
powers. Very strong answers were also able to evaluate the extent to which the balance
between the legislature and the executive lies at the heart of any constitution, assessing the
further constitutional consequences of the lack of scrutiny over delegated legislation. They
were also able to evaluate whether there were other forms of executive power which may
provide a further undermining of this balance, looking at the role of administrative rule-
making, guidelines and advice.
Weaker candidates were able to provide a good account of the lack of political scrutiny over
delegated legislation, but did not provide an evaluation of the extent to which the separation
of powers between the legislature and the executive is at the heart of any constitution and
the extent to which a lack of scrutiny over delegated legislation
Question 3: What would amount to ‘effective scrutiny over primary legislation’ and how far, if
at all, can this be achieved?
This was not a popular question. Those who tackled this question tended to do very well. The
question required candidates to explain what is required for effective political scrutiny over
primary legislation, looking at pre-legislative and post-legislative scrutiny in addition to
scrutiny during the process of enacting legislation. It also required a candid evaluation of how
far such scrutiny is possible, either focusing on legislatures generally or the Westminster
Parliament more specifically.
Stronger candidates not only provided a detailed evaluation of the requirements of effective
scrutiny, but also evaluated how far this could be achieved and the extent to which legal
controls over legislation (either in systems with a power to strike down unconstitutional
legislation or through principles of interpretation) could compensate for this lack of political
scrutiny.
Question 4: ‘Emergency legislation is only dangerous when it restricts human rights.’
Discuss.
This was another popular question. It required candidates to evaluate the extent to which
emergency legislation is ‘dangerous’, recognising that, at least in the UK, this can apply to
fast-tracked legislation as well as legislation devised to deal with emergency situations. It also
invited candidates to evaluate whether these dangers outweighed the need for emergency
legislation and the extent to which they may be mitigated. Most candidates answered this
question well, with the question also attracting some outstanding answers.
Stronger answers provided a detailed evaluation of the problems that arise when enacting
emergency legislation, explaining the extent to which these dangers were comparable to
situations that arise when emergency legislation restricts human rights. They also provided a
detailed evaluation of measures that may mitigate these dangers – for example sunset
clauses, reporting requirements, greater mechanisms to ensure that fast-track procedures
are only used for emergencies and a greater scrutiny over the delegation of executive powers.
These answers also explained how far legal controls may help mitigate some of these
problems, as well as providing detailed examples of emergency legislation – and safeguards
– from a range of legal systems.
Weaker answers had good, detailed accounts of emergency legislation and the problems
created by emergency legislation but failed to provide a detailed evaluation of how these
difficulties compared to the restriction of human rights and did not provide an evaluation of
how these difficulties may be mitigated.
Question 5: How far is the real content of legislation determined by front-line administrators?
How far should it be?
This question was not as popular as other questions on the paper. It produced a wide range
of answers.
Stronger answers were able to explain how far front-line administrators were able to modify
the content of legislation, particularly through their exercise of discretionary powers. They
explained how this could occur both as regards the content and the enforcement of
legislation, as well as explaining the extent to which front-line administrators produce
guidelines and advice. They also provided a detailed evaluation of the consequences of the
influence of front-line administrators, focusing on how far legal controls can cross-
compensate for the lack of political scrutiny, as well as evaluating the extent to which the role
of front-line administrators is valuable given their relative expertise.
Weaker answers were able to provide an account of the role of front-line administrators but
tended to focus on providing a detailed account of the rule of the Data Guardian (the example
used in lectures) and did not distinguish between the different ways in which front-line
administrators can determine the content of legislation, nor evaluate how far this was
desirable.
Question 6: ‘The current level of political scrutiny over international treaties is unfit for
purpose.’ How far do you agree with this statement and what changes, if any, are needed to
ensure effective political scrutiny?
This was not a popular question. However, those who provided an answer produced some
very good arguments. The question required an analysis of the current level of scrutiny over
international Treaties. Outstanding answers were able to provide a detailed account of
current scrutiny in the UK, as well as drawing comparisons with scrutiny in other legal
systems, particularly Australia. Moreover, they provided a detailed evaluation of how scrutiny
could be made more effective, recognising the role of multiple layers of Government, the
need for greater involvement in the negotiation of Treaties – and its potential pitfalls – as well
as greater involvement in the ratification of international agreements. They did so against a
detailed understanding of the backdrop of the growing role of international law in national
legal systems.
Question 7: ‘The best way to protect human rights is to ensure courts can strike down legislation
that contravenes these rights. The legislature has no legitimate role to play in the protection of
human rights.’
Discuss.
This was one of the more popular questions, which elicited a wide range of response. Stronger
answers were able to evaluate the extent to which legislatures could play a role in the
protection of human rights, focusing on their ability to provide positive measures to protect
rights, as well as their ability to balancing competing rights. Moreover, they also evaluated
the extent to which a strike-down power was the best way to protect rights, drawing on
comparisons between legal systems with a strong constitutional protection of rights and
those that provided a different legal protection of rights. Stronger answers were able to
provide a detailed evaluation of different means of protecting rights.
Weaker answers provided less detail in their answers and were less able to draw comparisons
between different means of protecting rights. They also did not provide as detailed an
evaluation of the potential legitimate role of legislatures in the protection of human rights.
Question 8: The UK constitution appears to have a worrying tendency to grant broad executive
powers as opposed to regulating through detailed legislation. This has been demonstrated
most clearly by legislation enacted to facilitate the UK’s exit from and future relationship with
the European Union.’ Discuss.
This was not a popular question and was only answered by one candidate. The question
required an evaluation of the extent to which the UK constitution granted broad legislative
powers to the executive and whether this was best demonstrated through the granted of
broad powers through legislation enacted to facilitate Brexit, or whether there were other
better examples of the delegation of broad powers to the executive. The question also
required an evaluation of whether detailed legislation would be a better solution, given the
pressures on Parliamentary time and the relative potential lack of expertise of politicians as
compared and contrasted to potential expert members of the executive. Candidates were
also required to evaluate how far this delegation of powers gave rise to constitutional
difficulties, both in general and specifically as regards legislation designed to implement
Brexit. This required an ability to determine how far political and legal controls may alleviate
these difficulties.
Question 9: ‘The UK constitution’s recognition of “constitutional statutes” has focused too
greatly on the legal consequences of this classification. More needs to be done to ensure there
is a distinct political control over constitutional legislation.’
Discuss.
This was another unpopular question, probably explained by the fact that this issue was
discussed in a seminar earlier on in the course and there was no specific workshop designed
to look at this issue. Those who answered this question, for the most part, did very well, again
suggesting that this was chosen by those who had decided to focus on this issue for the
examination.
The question required an assessment of the development of constitutional statutes in the UK,
explaining how far there had been a focus on the legal as opposed to the political
consequences of classifying legislation as ‘constitutional’ and the potential consequences for
the UK constitution. Stronger answers provided a detailed evaluation of the extent to which
there existed different political and legal consequences for constitutional as opposed to
ordinary legislation. They explained what the political consequences may be and whether
these were desirable, given both the difficulties of distinguishing between constitutional and
ordinary legislation and the nature of the UK constitution.
Weaker answers were able to point out the difficulties of distinguishing between ordinary
and constitutional statutes, as well as providing an account of the legal consequences of this
distinction. However, they were less able to explain the potential consequences of this
classification and the desirability of these consequences in the UK.
Question 10: ‘Second chambers rarely, if ever, perform a useful function.’ Discuss.
This was a moderately popular question. This required candidates to focus on the extent to
which second chambers can perform a useful function, focusing on their composition and
powers when contrasted to primary chambers. The question produced a range of answers.
Stronger answers provided detailed accounts of the role of second chambers, explaining how
this may be different in federal and unitary states. They explained how there could be
different elements of democratic representation, as well as, potentially, the need for specific
expertise in the scrutiny of legislation. They also evaluated the specific powers needed for
these second chambers to perform this function and the ways in which second chambers may
fail to perform a useful function.
Weaker answers were able to give a detailed account of the potential role of second
chambers but were less able to evaluate when second chambers did and did not perform a
useful function or did not provide as many specific examples to help illustrate and reinforce
their argument.
Analysis of Papers; LLM
28-Jun-21
2021
Code
Paper
Average
No. of
Class Distribution
Mark and Candidates
Range
*I
%
I
%
II i
%
II ii
%
III
%
F
%
L1
Law, Medicine and Life Sciences
140
021
1
4.76%
10 47.62%
10
47.62%
0
0.00%
0
0.00%
0
0.00%
120
160
L2
International Commercial Taxation
136
014
0
0.00%
4 28.57%
10
71.43%
0
0.00%
0
0.00%
0
0.00%
127
151
L3
International Commercial Litigation
129
050
0
0.00%
18 36.00%
24
48.00%
7
14.00%
1
2.00%
0
0.00%
095
150
L4
The Law of Restitution
138
026
1
3.85%
12 46.15%
12
46.15%
1
3.85%
0
0.00%
0
0.00%
116
160
L5
Economics of Law and Regulation
140
015
0
0.00%
9 60.00%
6
40.00%
0
0.00%
0
0.00%
0
0.00%
125
150
L6
Law and Information
135
036
0
0.00%
10 27.78%
24
66.67%
2
5.56%
0
0.00%
0
0.00%
114
150
L8
International Financial Law
137
016
0
0.00%
8 50.00%
8
50.00%
0
0.00%
0
0.00%
0
0.00%
128
150
L9
Corporate Finance Law
137
030
0
0.00%
12 40.00%
18
60.00%
0
0.00%
0
0.00%
0
0.00%
123
147
L10
Corporate Governance
135
012
0
0.00%
5 41.67%
7
58.33%
0
0.00%
0
0.00%
0
0.00%
120
144
L11
Criminal Justice: Players and
139
016
0
0.00%
8 50.00%
8
50.00%
0
0.00%
0
0.00%
0
0.00%
Processes
130
146
Analysis of Papers; LLM
28-Jun-21
2021
Code
Paper
Average
No. of
Class Distribution
Mark and Candidates
Range
*I
%
I
%
II i
%
II ii
%
III
%
F
%
L12
Intellectual Property Law
136
014
0
0.00%
7 50.00%
6
42.86%
1
7.14%
0
0.00%
0
0.00%
116
152
L14
Competition Law
137
028
0
0.00%
13 46.43%
15
53.57%
0
0.00%
0
0.00%
0
0.00%
126
146
L15
International Environmental Law
128
026
0
0.00%
9 34.62%
15
57.69%
1
3.85%
0
0.00%
1
3.85%
035
144
L18
EU External Relations
137
007
0
0.00%
4 57.14%
3
42.86%
0
0.00%
0
0.00%
0
0.00%
126
141
L20
Law of Armed Conflict, Use of Force
138
021
0
0.00%
9 42.86%
12
57.14%
0
0.00%
0
0.00%
0
0.00%
and Peacekeeping
126
152
L22
Advanced Labour Law
142
008
0
0.00%
6 75.00%
2
25.00%
0
0.00%
0
0.00%
0
0.00%
131
150
L23
The Law of the World Trade
138
007
0
0.00%
3 42.86%
4
57.14%
0
0.00%
0
0.00%
0
0.00%
Organization
132
145
L24
International Criminal Law
137
015
0
0.00%
11 73.33%
3
20.00%
0
0.00%
1
6.67%
0
0.00%
094
149
L25
International Human Rights Law
134
031
0
0.00%
9 29.03%
21
67.74%
0
0.00%
1
3.23%
0
0.00%
080
153
L29
International Investment Law
138
030
0
0.00%
11 36.67%
19
63.33%
0
0.00%
0
0.00%
0
0.00%
130
148
Analysis of Papers; LLM
28-Jun-21
2021
Code
Paper
Average
No. of
Class Distribution
Mark and Candidates
Range
*I
%
I
%
II i
%
II ii
%
III
%
F
%
L30
Jurisprudence
138
020
0
0.00%
9 45.00%
11
55.00%
0
0.00%
0
0.00%
0
0.00%
125
147
L31
Topics in Legal and Political
138
019
0
0.00%
9 47.37%
10
52.63%
0
0.00%
0
0.00%
0
0.00%
Philosophy
123
144
L34
International Law of Global
135
017
0
0.00%
7 41.18%
9
52.94%
0
0.00%
0
0.00%
1
5.88%
Governance
071
147
L35
History of English Civil and Criminal
135
015
0
0.00%
7 46.67%
8
53.33%
0
0.00%
0
0.00%
0
0.00%
Law
122
151
L36
International Intellectual Property
138
018
1
5.56%
8 44.44%
8
44.44%
1
5.56%
0
0.00%
0
0.00%
Law
110
160
L38
Seminar Courses
138
012
0
0.00%
5 41.67%
7
58.33%
0
0.00%
0
0.00%
0
0.00%
120
155
L39
Legislation
132
022
0
0.00%
7 31.82%
13
59.09%
2
9.09%
0
0.00%
0
0.00%
114
144
LT
Thesis
143
029
3
10.34%
19 65.52%
6
20.69%
1
3.45%
0
0.00%
0
0.00%
117
160
