Showing papers in "Modern Law Review in 2015"
TL;DR: In the context of economic crisis, Europe has witnessed a spate of extraordinary political measures pressed by executive discretion as discussed by the authors, and it is worth noting that emergency rule will tend to blend in with normal rule, to the detriment of the political order's legitimate authority.
Abstract: In the context of economic crisis, Europe has witnessed a spate of extraordinary political measures pressed by executive discretion. This article examines what emergency rule of this kind implies for the possibility of normal rule thereafter. Political decision-makers face the challenge of drawing a line under the crisis so that the unconventional measures used to handle it do not compromise the polity's norms in lasting fashion. Based on an analysis of the preconditions for plausibly making such an act of separation, I suggest the principal resources for doing so in the EU case are missing. Emergency rule will tend to blend in with normal rule, to the detriment of the political order's legitimate authority. A more dubiously grounded ‘descriptive’ authority may conversely be enhanced by emergency rule, as may compliance for instrumental motivations, producing a polity that is stable even if weakly legitimate.
45 citations
TL;DR: It is argued that philosophers and social scientists need to work together to understand how the appeal of the idea of proportionality can best be realised through substantive institutional frameworks under particular conditions.
Abstract: The concept of proportionality has been central to the retributive revival in penal theory, and is the main idea underlying desert theory’s normative and practical commitment to limiting punishment. Theories of punishment combining desert-based and consequentialist considerations also appeal to proportionality as a limiting condition. In this paper, we argue that these claims are founded on an exaggerated idea of what proportionality, in itself, can offer, and in particular fail properly to consider the question of what sorts of institutional conditions are needed in order to foster robust limits on the state’s power to punish. The idea that appeals to proportionality as an abstract ideal can help to limit punishment is, we argue, a chimera: what has been thought of as proportionality is not a naturally existing relationship, but a product of political and social construction, cultural meaning-making, and institution-building. Drawing on evolutionary psychology and comparative political economy, we argue that philosophers and social scientists need to work together to understand the ways in which the appeal of the idea of proportionality can best be realised through substantive institutional frameworks under particular conditions.
39 citations
TL;DR: The notion of the constitutional imagination refers to the way we have been able to conceive the relationship between thought, text and action in the constitution of modern political authority as discussed by the authors, and it has been argued that modern constitutional texts come to be invested with a 'world-making' capacity.
Abstract: The constitutional imagination refers to the way we have been able to conceive the relationship between thought, text and action in the constitution of modern political authority. The lecture seeks to demonstrate how modern constitutional texts come to be invested with a ‘world-making’ capacity. The argument is advanced first by explaining how social contract thinkers have been able to set the parameters of the constitutional imagination (thought), then by showing that constitutions are agonistic documents and their interpretative method is determined by a dialectic of ideology and utopia (text), and finally by examining the degree to which constitutions have been able to colonise the political domain, thereby converting constitutional aspiration into political reality (action). It concludes by suggesting that although we seem to be entering a constitutional age, this is an ambiguous achievement and whether the power of the constitutional imagination can still be sustained remains an open question.
36 citations
TL;DR: The Insurance Act 2015 as mentioned in this paper is the first piece of legislation since the eighteenth century to seek to lay down new principles governing the formation and operation of insurance contracts, with important implications for both the pre- and post-contractual duties of the parties.
Abstract: The Insurance Act 2015 is the first piece of legislation since the eighteenth century to seek to lay down new principles governing the formation and operation of insurance contracts. Exactly 250 years after Lord Mansfield articulated the routinely-cited principle of utmost good faith in insurance law in Carter v Boehm (1766) 2 Burr 1905, that principle has been recast, with important implications for both the pre- and post-contractual duties of the parties. The Insurance Act has also imposed important restrictions on the enforcement of policy terms by insurers, and clarifies the law affecting fraudulent claims. The Marine Insurance Act 1906, a codifying measure, looks increasingly outmoded.
22 citations
TL;DR: In this paper, the authors address the vagueness, and the interpretative challenges associated with, international investment agreements (IIAs) and develop a new normative framework for interpreting these treaties, focusing on the historical embedding of investment protection as a means of facilitating economic development as well as upon its synthetic public law nature.
Abstract: This article addresses the vagueness, and the interpretative challenges associated with, international investment agreements (IIAs) and develops a new normative framework for interpreting these treaties. It focuses on the historical embedding of investment protection as a means of facilitating economic development as well as upon its synthetic public law nature. The analysis shows that a teleological approach to interpretation imposes boundaries on the meaning of substantive IIA provisions. The article then elaborates how the transnational dimension of IIAs provides a benchmark, which is the level of protection offered to economic actors against interference by the state in countries with the highest rule of law standards. The article then shows how the resulting challenges of comparative public law could be addressed through the methodology of re- and pre-statement of transnational uniform ‘principles’: sophisticated and detailed rules striking the proper balance between private economic interests and the public regulatory interest, so as to provide more legal certainty for both investors and host states.
19 citations
TL;DR: In the Google Spain judgment, the Grand Chamber of the EU Court of Justice determined the circumstances in which a search engine is obliged to remove links to data pertaining to an individual from the results displayed as discussed by the authors.
Abstract: In the Google Spain judgment, the Grand Chamber of the EU Court of Justice determined the circumstances in which a search engine is obliged to remove links to data pertaining to an individual from the results displayed. The Court also considered the material and territorial scope of the EU data protection rules. This note argues that the Court's findings, which have been heavily criticised, are normatively coherent. The broad scope of application of data protection rules and the right of individuals to have their data deleted when certain conditions are fulfilled both play a part in granting individuals effective control over their personal data – an objective of EU data protection law.
15 citations
TL;DR: In this article, the authors present the findings of an empirical study examining the impact on practice of the controversial reform of Section 13(5) of the Human Fertilisation and Embryology Act 1990.
Abstract: Section 13(5) of the Human Fertilisation and Embryology Act 1990 requires fertility clinics, before offering regulated treatment services, to take account of the welfare of any child who may be born as a result of the treatment and any other child affected by that birth. This paper presents the findings of an empirical study examining the impact on practice of the controversial reform of this section in 2008. While the broad values underpinning section 13(5) appear well embedded in clinic staff's engagement with ethical issues, there is little evidence that practice has been influenced by the 2008 amendments. A complex picture emerged regarding the implementation of section 13(5), particularly in its interaction with other factors, such as funding criteria and professional norms around counselling, implying a higher level of ongoing attention to likely parenting ability – particularly that of single women – than might be expected from a reading of the statute and guidance alone.
14 citations
TL;DR: In this paper, the legal nature of the nationally determined contributions submitted by the parties to the 2015 Paris Agreement has been investigated, focusing on the legal status, significance and influence of these contributions and their relationship to the core 2015 agreement.
Abstract: The ongoing UN negotiations for a 2015 climate agreement have yet to resolve two fundamental legal issues on which its effectiveness will hinge. The first is the precise legal form this agreement will take. Parties had agreed to work towards a ‘protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties’. This leaves scope for a range of possible legal forms, only some of which are legally binding. Second, they have yet to determine the legal nature of the ‘nationally determined contributions’ submitted by Parties. This article addresses these two critical issues: on ‘legal form’, it identifies the instruments that could form part of the Paris package, focussing on their legal status, significance and influence; and on the ‘legal nature’ of nationally determined contributions, it considers their nature and scope, the range of options for ‘housing’ these contributions as well as their relationship to the core 2015 agreement.
12 citations
TL;DR: In this paper, the authors argue that international publicity standards, based on a registry system, could offer a new strategy for reforming secured transactions laws, and the recently adopted UNCITRAL's Registry Guide is analysed and considered as a possible tool for reforming national secured transactions.
Abstract: Non-possessory secured transactions are key components of market economies. National and international legal reform projects have been advanced to further their use and broaden access to credit. Yet reforms appear to be limited by practical obstacles posed by national legal categories. This article shifts the focus from domestically defined categories to the operational rules that allow secured transactions to perform their economic function of managing credit risk. This shift leads to a reconsideration of the rules governing publicity and an examination of the policy issues underpinning the evolution of publicity. The article argues that international publicity standards, based on a registry system, could offer a new strategy for reforming secured transactions laws. The recently adopted UNCITRAL's Registry Guide is analysed and considered as a possible tool for reforming national secured transactions laws.
12 citations
TL;DR: The Act aims to increase deceased donor organ and tissue donation in Wales by introducing a ‘soft opt‐out’ system to replace the previous requirement of express ‘appropriate’ consent under the Human Tissue Act 2004.
Abstract: The Human Transplantation (Wales) Act became law in Wales in September 2013. The Act aims to increase deceased donor organ and tissue donation in Wales by introducing a 'soft opt-out' system to rep...
11 citations
TL;DR: English courts are frequently criticised for their flexible approach to the finding of implied choice and the use of the escape clause in the context of the Rome I Regulation/Convention on the law applicable to contractual obligations as discussed by the authors.
Abstract: English courts are frequently criticised for their flexible approach to the finding of implied choice and the use of the escape clause in the context of the Rome I Regulation/Convention on the law applicable to contractual obligations. This paper argues that such criticism is misplaced. Based on empirical evidence, the article shows that those choice of law decisions are directly influenced by their procedural context and respond to the need to balance the multiple policy issues generated by international commercial litigation. In particular, English decisions need to be assessed in light of three distinct factors: the standard of proof required at different stages of the procedure in England, the national policy to promote England as a center for commercial dispute resolution and the incentives to export English law in certain strategic industries. The use of implied choice and the escape clause to achieve these ends constitutes a legitimate practice that does not frustrate the aims of the EU choice of law regime.
TL;DR: In this article, the accepted manuscript for a paper published in The Modern Law Review Volume 78, Issue 1, pages 55-84, January 2015, DOI: 10.1111/1468-2230.12106
Abstract: This is the accepted manuscript for a paper published in The Modern Law Review Volume 78, Issue 1, pages 55–84, January 2015, DOI: 10.1111/1468-2230.12106
TL;DR: In this article, the authors discuss the problems that the best interests approach raises in this area, and its incompatibility with the right to equal recognition before the law under the UN Convention on the Rights of Persons with Disabilities.
Abstract: This article addresses ‘statutory wills’ executed under the Mental Capacity Act 2005 (MCA) for persons with impaired mental capacity. The article provides an overview of the historical development of statutory wills, before exploring their rising contemporary significance. It considers the shift from the previous ‘hypothetical substituted judgment’ test to the contemporary ‘best interests’ orientation of the MCA. The article assesses the problems that the best interests approach raises in this area, and its (in)compatibility with the right to equal recognition before the law under the UN Convention on the Rights of Persons with Disabilities, arguing that the pervasive reach of best interests in contemporary mental capacity law requires reconsideration. The paper concludes by suggesting that a more limited framing of the power to execute statutory wills is required in order to appropriately balance the rights of individuals with disabilities with practical considerations around the distribution of assets on death.
TL;DR: In this article, the effectiveness of UK age discrimination law in protecting older workers from claims that such workers are less productive and perform more poorly than younger workers is assessed through an analysis of existing compensation reduction rules and the existing rules which allow for a reduction in compensation payable where there is a chance that the same outcome would have been reached in the absence of discrimination.
Abstract: This article assesses the effectiveness of UK age discrimination law in protecting older workers from claims that such workers are less productive and perform more poorly than younger workers. The article assesses employer perceptions and the incompatibility of such perceptions with existing research and the current interpretation of age discrimination law by the CJEU and the Supreme Court which accords with such research. The effectiveness of age discrimination law in practice is assessed through an analysis of existing compensation reduction rules. The article concludes that the existing rules which allow for a reduction in compensation payable where there is a chance that the same outcome would have been reached in the absence of discrimination ( �chance model�) reduces the effectiveness of the existing protections. A move to a �certainty model� would be less speculative, would serve the objectives of anti-discrimination law and would reduce concerns about compatibility with EU law.
TL;DR: In this paper, the authors argue that the closed material procedure (CMP) can be conceptualised as the product of human rights law, which has developed so as to legalise and normalise its use, and that this process is symptomatic of a deeper inter-relationship between human rights laws and the preservation of states' security interests, which renders the former inherently unsuitable for dealing with security phenomena.
Abstract: Once a legal abnormality that was criticised on human rights grounds, the closed material procedure (CMP) has now become the main mechanism for dealing with allegedly sensitive security information in the UK. This article considers the role of European human rights law in that process. It argues that the CMP can be conceptualised as the product of human rights law, which has developed so as to legalise and normalise its use, and that this process is symptomatic of a deeper inter-relationship between human rights law and the preservation of states' security interests, which renders the former inherently unsuitable for dealing with security phenomena.
TL;DR: In this article, the authors examine the prevailing conceptual forms of jurisdiction in order to retrieve space for the political community that it invokes and authorises and highlight the potential role for jurisdictional arrangements in contemporary public law and constitutional law settings.
Abstract: Jurisdiction is a central concept in the framing of the legal world but it has received short shrift in mainstream legal theory. This article examines the prevailing conceptual forms of jurisdiction in order to retrieve space for the political. The study of jurisdiction is also the study of the political community that it invokes and authorises. The first part of the article examines the three forms that jurisdiction takes in contemporary scholarship (territory, community, governance) to show that each form overlooks some implication of the political community that is tethered to jurisdiction. The second part of the article flips the inquiry to demonstrate the oversight of jurisdiction in theories of sovereign exception. The emergent understanding of jurisdiction as political provides an anchor for the study of jurisdiction going forward and highlights the potential role for jurisdictional arrangements in contemporary public law and constitutional law settings.
TL;DR: In this article, the authors defend a set of exceptions to the general rule in tort law that a claimant must prove that a particular defendant's wrongful conduct was a cause of its injury on the balance of probabilities in order to be entitled to compensatory damages in respect of that injury.
Abstract: This article defends a set of exceptions to the general rule in tort law that a claimant must prove that a particular defendant's wrongful conduct was a cause of its injury on the balance of probabilities in order to be entitled to compensatory damages in respect of that injury. The basic rationale for each exception is that it provides a means of enforcing the defendant's secondary moral duty to its victim. The article further demonstrates that the acceptance of this set of exceptions does not undermine the general rule.
TL;DR: In this paper, the authors argue that in proprietary estoppel, the law is justified in imposing a duty on the right holder to alert a stranger when his actions are based on a mistake.
Abstract: The ‘acquiescence’ category of proprietary estoppel is a rare example of responsibility for pure omissions in private law. On liberal-individualistic theories of ownership, the policy considerations against liability for nondoing are exceptionally powerful in the context of rights over land. Nevertheless, I argue that in proprietary estoppel the law is justified in imposing a duty on the right-holder to alert a stranger when his actions are based on a mistake. Owners of property rights are under what Honore termed a ‘special duty’ to contribute to the social good of efficient market for land by publicising their rights. This ‘duty to speak’ is however relatively weak and cannot completely suppress considerations against liability for omission. While liability in the acquiescence category can be justified in principle, the current law, in which owners who failed to correct the mistake of the relying party incur similar liability to owners who actively encouraged the other party to rely, is untenable.
TL;DR: In this paper, the authors argue that the complete elimination from the law of contract of the restitution interest, which incorporates those remedies into the three interests model, would improve both the coherence of the model of contractual interests and the substantive law of remedies for breach.
Abstract: The attempt to combine the contractual interests properly so-called with the restitution interest in the Fuller and Purdue three interests model of remedies for breach of contract is ineradicably incoherent. Stimulated by reflection on contemporary restitution doctrine’s understanding of the quasi-contractual remedies of recovery and quantum meruit, this paper argues that the complete elimination from the law of contract of the restitution interest, which incorporates those remedies into the three interests model, would improve both the coherence of the model of contractual interests and the substantive law of remedies for breach.
TL;DR: Moore as discussed by the authors argued that corporate laws of the United States and United Kingdom are essentially public and that the majority view of the corporation has been that it is a social institution, which stands in contrast to the nexus of contracts approach, whose roots lie in comparative German-American scholarship from the 1930s.
Abstract: What is 'the fundamental nature of the laws' that govern ‘public corporations in the United States and the United Kingdom’? This review article explores the 'nexus of contracts' view of the corporation, against its critique by Marc Moore in Corporate Governance in the Shadow of the State (2013). While the nexus of contracts theorists are usually thought to align the corporation to the private sphere, and seek to limit government interference, Moore suggests that corporations ought to be regarded as public. His analysis seeks to demonstrate that corporate laws of the United States and United Kingdom are essentially public. This article adds a further level, that the majority view of the corporation has been that it is a social institution. This stands in stark contrast to the nexus of contracts approach, whose roots lie in comparative German-American scholarship from the 1930s. In substance, this approach illegitimately privileges the claims to govern for a 'leadership' body of directors, asset managers, or banks, all of whom gain voice with 'other people's money'. A book review article of Marc T. Moore, Corporate Governance in the Shadow of the State, Oxford: Hart Publishing, 2013, 336 pp. £59.99
TL;DR: The Italian Constitutional Court as discussed by the authors re-opened the debate on the extent of the immunity enjoyed by states for violations of jus cogens and questioned the authority of the ICJ's 2012 judgment in Germany v Italy.
Abstract: Judgment 238/2014 of the Italian Constitutional Court reopens the debate on the extent of the immunity enjoyed by states for violations of jus cogens The decision, which questions the authority of the ICJ's 2012 judgment in Germany v Italy, could certainly have effects on the formation of customary international law In addition, it revives the discussion on the relationship between national and international law and on the supremacy of the latter over the former, especially if read in light of the previous Medellin and Kadi I decisions Judgment 238/2014 is an opportunity to reappraise the role played by international law in domestic courts, particularly in cases where international law conflicts with core domestic constitutional values
TL;DR: In this article, the authors assess the extent to which it is "fair" for the government to require owner-occupiers to draw on the equity accumulated in their home to fund their social care costs.
Abstract: This article assesses the extent to which it is ‘fair’ for the government to require owner-occupiers to draw on the equity accumulated in their home to fund their social care costs. The question is stimulated by the report of the Commission on Funding of Care and Support, Fairer Care Funding (the Dilnot Commission) and the subsequent Care Act 2014. The enquiry is located within the framework of social citizenship and the new social contract. It argues that the individualistic, contractarian approach, exemplified by the Dilnot Commission and reflected in the Act, raises questions when considered from the perspective of intergenerational fairness. We argue that our concerns with the Act could be addressed by inculcating an expectation of drawing on housing wealth to fund older age: a policy of asset-based welfare.
TL;DR: In this paper, the authors look at Schmitt's work The Nomos of the Earth and propose that it is the process of bracketing war called Hegung which takes the place of the sovereign in the international order Schmitt describes.
Abstract: Carl Schmitt's notion of nomos is commonly regarded as the international equivalent to the national sovereign's decision on the exception. But can concrete spatial order alone turn a constellation of forces into an international order? This article looks at Schmitt's work The Nomos of the Earth and proposes that it is the process of bracketing war called Hegung which takes the place of the sovereign in the international order Schmitt describes. Beginning from an analysis of nomos, the ordering function of the presocratic concept moira is explored. It is argued that the process of Hegung, like moira, does not just achieve the containment of war, but constitutes the condition of possibility for plural order.
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TL;DR: In this paper, the status of foreign precedents in national courts is examined and it is shown that, absent some incorporating convention, judges cannot ever be said to have an obligation to refer to them.
Abstract: This article considers the status of foreign precedents in national courts. It examines possible reasons for courts referring to them and concludes that, absent some incorporating convention, judges cannot ever be said to have an obligation to refer to them. But it also shows that there is nothing unprincipled about national courts choosing to treat foreign precedents as persuasive authority, notwithstanding that there are some good reasons, especially in the context of constitutional adjudication, for cautioning against this. It is also suggested that no satisfactory argument can be adduced to support the proposition that a national court must never rely on foreign precedent as the sole reason for modifying the indigenous common law – though it seems very unlikely that judges would ever need (still less want) to rely on foreign precedent in this way.
TL;DR: In this paper, the authors present a principled approach to develop a justifiability criterion by which policy considerations can be taken into account to preclude an application of the tort, in line with the existing jurisprudence concerning human rights and with the policy limitations as developed in the context of other torts.
Abstract: The decision in OPO v MLA [2014] EWCA Civ 1277 causes confusion to the rule in Wilkinson v Downton. A strong line of authorities indicates that the defendant must either have an actual intention to cause physical injury or be reckless as to the causing of such harm, the latter being determined by the likelihood of harm being caused by the defendant's act. ‘Imputed intention’ does not form a separate category of mental state. There was also a missed opportunity to develop a ‘justifiability’ criterion, by which policy considerations can be taken into account to preclude an application of the tort. This criterion ought to be developed in a principled manner, in line with the existing jurisprudence concerning human rights and with the policy limitations as developed in the context of other torts.
TL;DR: This paper questions the narrow way in which the patient's decision was characterised by the Court in this and previous cases, which led to an application of the Mental Capacity Act 2005 that is incompatible with the UN Convention on the Rights of Persons with Disabilities.
Abstract: The Court of Protection decided in A NHS Foundation Trust v Ms X that an anorexia nervosa patient lacked the capacity to refuse treatment for her eating disorder, but that it was not in her best-interests to be subject to force-feeding to prolong her life. The Court, vindicating previous judgments in similar cases, considered that the eating disorder rendered the patient incapable of deciding on nutrition and, therefore, that she lacked the capacity to refuse treatment for anorexia nervosa. This paper questions the narrow way in which the patient's decision was characterised by the Court in this and previous cases, which led to an application of the Mental Capacity Act 2005 that is incompatible with the UN Convention on the Rights of Persons with Disabilities because, based on a diagnosis only, anorexia nervosa patients were denied the right to decide where the balance lies between quality and duration of their own lives.
TL;DR: In this article, the authors examined the specific reforms of the Cartel Offence and argued that, although considerable improvement has been made, the UK authorities currently have at their disposal a criminal offence that is fundamentally flawed and unworkable in practice.
Abstract: On 1 April 2014, section 47 of the Enterprise and Regulatory Reform Act 2013 (‘ERRA’) entered into force, ensuring significant changes to the criminal UK Cartel Offence That particular criminal offence, contained in section 188 of the Enterprise Act 2002, was enacted in order to secure the deterrence of cartel activity affecting the UK Following almost ten years of its enforcement, the Cartel Offence had failed to live up to its expectations Consequently, following a public consultation it was reformed in substance As a result of section 47 ERRA, the (controversial) definitional element of ‘dishonesty’ has been removed from the offence, a number of ‘carve outs’ from the offence have been created, and three additional defences now exist This article examines in detail the specific reforms of the Cartel Offence and argues that, although considerable improvement has been made, the UK authorities currently have at their disposal a criminal offence that is fundamentally flawed and unworkable in practice Further reform is therefore advised
TL;DR: In this paper, the authors examine the relationship between law and finance and suggest that previous accounts have overlooked the adaptive capacity of the finance market to legal environment and the implications of such structural adaptation for the prospects of convergence in law.
Abstract: This article examines something of a puzzle: increasing access by UK issuers of high yield bonds to US investors notwithstanding substantive differences in the approach to valuation of the issuer in financial distress in US and UK restructuring law and, therefore, in anticipated return on default. It examines the development of the market in the context of existing theories on the relationship between law and finance and suggests that previous accounts have overlooked the adaptive capacity of the finance market to legal environment and the implications of such structural adaptation for the prospects of convergence in law. Three states are identified: a state in which the market is poorly adapted to the legal environment and reinforces other pressure for change, a state in which the market is adapted to the legal environment and is a neutral influence on, or even dampens, other pressure for change and a state in which both legacy and adapted structures exist, potentially pulling in different directions at the same time.
TL;DR: The nature of legislative intent, by Richard Ekins, Oxford: Oxford University Press, 2012, xiii+303 pp, hb 36.99 pounds as mentioned in this paper, has been studied extensively.
Abstract: The nature of legislative intent, by Richard Ekins, Oxford: Oxford University Press, 2012, xiii+303 pp, hb 36.99 pounds.
TL;DR: In O'Keeffe v Ireland, the European Court of Human Rights found that Ireland failed to protect the applicant from sexual abuse suffered as a child in an Irish National School in 1973 and violated her rights under Article 3 (prohibition of inhuman and degrading treatment) and Article 13 (right to an effective remedy) of the European Convention on Human Rights as discussed by the authors.
Abstract: In O'Keeffe v Ireland, the Grand Chamber of the European Court of Human Rights found that Ireland failed to protect the applicant from sexual abuse suffered as a child in an Irish National School in 1973 and violated her rights under Article 3 (prohibition of inhuman and degrading treatment) and Article 13 (right to an effective remedy) of the European Convention on Human Rights. This note argues that the decision is important in expanding the Court's jurisprudence regarding positive obligations under Article 3 to child sexual abuse in a non-state setting where there was no knowledge of a ‘real and immediate’ risk to the applicant. It also argues that the case raises concerns about the Court's methodology for the historical application of the Convention and about the interaction of Article 3 positive obligations with vicarious liability in common law tort regimes.