Category Archives: Fundamental or Human Rights
Manor-Percival and Chambers, ‘Restitution and Unjust Enrichment: Promoting Justice in Business and Human Rights Litigation’
ABSTRACT Using Josiya v British American Tobacco (BAT) as a case study, this article explores the growing potential of unjust enrichment to become an additional route to redress in business and human rights (BHR) litigation. Josiya, in which over 7,000 Malawian tobacco farmers are suing BAT for exploitative practices, marks a significant development in attempts […]
David Erdos, ‘The CJEU limits freedom of expression under the General Data Protection Regulation (GDPR): C-199/24 Legal Newsdesk Sweden’
ABSTRACT Legal Newsdesk concerned a paid search service providing criminal information on individuals. Disclosure was not oriented towards a collective public and so clearly fell outside of journalism. The CJEU further held that journalistic disclosure must be ‘in compliance with the rules and codes of conduct of the profession of journalist’ and ‘factual allegations’ must […]
Marco Pasqua, ‘Towards a SLAPP-Aware EU Private International Law Framework?’
ABSTRACT Strategic lawsuits against public participation (SLAPPs) raise distinctive challenges for European Union private international law. While the Anti-SLAPP Directive establishes a common procedural framework for addressing abusive litigation, it does not provide a comprehensive response to the private international law questions that arise when SLAPPs cross borders. This article examines those questions across three […]
Peter Teunissen, ‘A Fence Full of Gaps: Pastiche and Creative Reuse in EU Copyright Law’
ABSTRACT This article examines how EU copyright law accommodates creative reuse within its closed system of exceptions and limitations. While the reproduction right encompasses a broad range of derivative and transformative uses, the Court of Justice has consistently rejected the possibility of relying on fundamental rights to create exceptions beyond those provided for by the […]
Hanna Churpita and others, ‘Legal Certainty in Substantive Law as a Condition for Effective Civil Proceedings: The Perspective of the European Court of Human Rights’
ABSTRACT Historically, the effectiveness of civil proceedings has been analyzed mainly through procedural guarantees; the case-law of the European Court of Human Rights, however, increasingly shows that the quality of substantive regulation also affects the practical effectiveness of judicial protection. Under conditions of normative instability and broad judicial discretion, legal certainty acquires systemic importance for […]
Paul Rink, ‘Toward New Standards in Strategic Climate Rights Litigation’
ABSTRACT Plaintiffs around the world are relying on carbon budgets derived from the Paris Agreement’s 1.5°C and 2°C global warming temperature targets as proposed metrics for states’ human rights compliance. Although these budgets are an important policy tool in efforts to combat the climate crisis, this litigation trend is misguided. Such emissions allocations are conceptually […]
Matthias Petel, ‘The politics of neutrality in climate adjudication: Scientific consensus, judicial legitimacy and equity in rights-based European climate litigation’
ABSTRACT This article examines two European rights-based climate litigation cases – Klimaatzaak v Belgium and Milieudefensie v Shell – where courts were asked to set quantified climate mitigation targets. Such determinations inherently involve distributive questions, as they require allocating shares of a finite global carbon budget across actors and over time. I analyse how courts […]
Finn and Bhatia, ‘Horizontality in South African Law’
ABSTRACT This chapter provides an account of horizontality in South African law. In it, we trace the normative and historical origins of horizontal application before providing a textual and doctrinal analysis of the relevant constitutional provisions. We then explore key substantive themes in the horizontality jurisprudence before turning to two comparative contexts. We argue that […]
D’Onfro and Epps, ‘Constitutional Rights and General Private Law’
ABSTRACT Public and private law are treated as doctrinally siloed opposites. But the two are surprisingly interrelated in the arena of constitutional rights. Courts must define, for constitutional purposes, various private law entitlements: what interests constitute property, when a contract has been made, and when government conduct constitutes the tort of trespass, among other pervasive […]
Tarunabh Khaitan, ‘Authorial and Authorised Purposiveness: Natural Persons, Organised Agents, and the Public-Private Debate’
ABSTRACT Liberal law rests on a familiar contrast: private persons may do whatever law does not forbid, whereas public bodies must justify action as authorised by positive law. Through legal ‘personhood’, this agentive public-private divide extends a presumption of autonomy-and the fundamental rights expressing it-to most non-state legal persons, including companies, charities, trade unions, political […]