Showing papers in "Modern Law Review in 2021"

The Challenges of Implementing Anti-Money Laundering Regulation: An Empirical Analysis

Abstract: For over three decades, money laundering has been an area of concern for policymakers and law enforcement, with significant efforts undertaken at national and international levels to combat it. Recently, laundering of criminal proceeds using real property has attracted increased attention amongst policymakers. Various efforts are now being undertaken to tackle money laundering in the UK property market, but there are still significant difficulties in its practical implementation. Drawing upon semi‐structured interviews with estate agents and compliance officials, this study identifies critical aspects of AML compliance that are particularly problematic for those involved in it. In so doing, this article delivers a new perspective, by analysing data gathered with the first empirical study on the implementation of AML obligations in practice (in the UK property market) since the introduction of the 2017 Money Laundering Regulations.

Cloud crypto land

Abstract: The supposed disruptive and transformational potential of blockchain technology has received widespread attention in the media, from legislators, and from academics across disciplines. While much of this attention has revolved around cryptocurrencies such as Bitcoin, many see the true promise of blockchain technology in its potential use for transactions in traditional assets, as well as for facilitating self‐executing ‘smart contracts’, which replace vague and imprecise natural language with unambiguous computer code. This article presents a simple legal argument against the feasibility of a meaningful blockchain‐based economic system. Blockchain‐based systems are shown to be unsuitable for transactions in traditional assets, unless design choices are made which render the use of the technology pointless. The same argument is shown to apply to smart contracts. Legal and practical obstacles therefore mean that, outside its original realm of cryptocurrencies, blockchain technology is highly unlikely to transform economic interactions in the real world.

Brexit, Covid‐19, and Possible Frameworks for Future UK/EU Financial Governance Cooperation

Abstract: The EU project is at an inflection point. Intra‐EU alliances are altering following the UK's departure, the EU's financial markets remain segmented, and there is limited appetite for completing the Banking Union. The second stage of Brexit negotiations also collided with the Covid‐19 pandemic, which has strained economies around the world. These issues amount to a ‘polycrisis’ for the EU, raising existential questions about its future. This article focuses on one strand of the debates generated within this polycrisis: future UK/EU policy cooperation with respect to financial governance. The article discusses the importance of the financial services sector to the UK and the EU, and examines potential institutional options for future cooperation. In particular, it advocates harnessing dexterous aspects evident within precedents, including existing EU/third country association agreements, to develop a functional arrangement for future financial governance cooperation, which could also lead to closer UK/EU cooperation than currently appears likely. [ABSTRACT FROM AUTHOR] Copyright of Modern Law Review is the property of Wiley-Blackwell and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

The Presumption of Innocence: A Deflationary Account

Abstract: The presumption of innocence is unanimously considered a fundamental requirement for criminal justice. This notwithstanding, the meaning of the presumption is hotly disputed in the legal scholarship. This article contributes to the debate, advancing a novel theory of the meaning as well as of the justification of the presumption of innocence. It assesses critically the components of the presumption that are discussed and defended in the literature; and it shows that the meaning of the presumption should be unloaded of most of these components. The upshot is a markedly deflationary account, according to which the presumption of innocence consists exclusively of a rule on the allocation of the burden of proof. This rule is justified by appealing to the principle of inertia in argumentation, rather than – as it generally occurs – to the value of protecting the innocent from conviction.

Haley v Haley: Family law arbitration and the new frontier of private ordering

Abstract: Haley v Haley [2020] EWCA Civ 1369 is required reading for anyone interested in family law dispute resolution or issues of access to justice. The case concerns family arbitration and considers the test that should apply when challenging an arbitrator’s decision. The judgment is important for several reasons. First, it changes the test for challenging arbitral awards, making it easier to do so. This is connected to concerns about making arbitration more appealing in the family law context, which has implications for family law dispute resolution more broadly. Whilst separating couples have always been encouraged to settle outside of the court process, connected to an idea of private ordering, Haley marks an important new frontier. Whereas diverting cases from court has always been an inherent concern of private ordering, until now private ordering was also intended to ensure substantively better outcomes. This is no longer the case, and the attempt to divert more cases to arbitration in this judgment may compound existing issues of access to justice.

Fairness and the Challenge of Making Markets Work Better

Abstract: This article explores the revival of fairness as the lodestar of EU competition enforcement. It considers the theory and evolving discourse of fairness, then identifies and evaluates examples of fairness-oriented enforcement activity. Concluding that fairness represents a distinct development from the ‘hipster antitrust’ movement, the article suggests reasons to explain the shift, including a need to rehabilitate the social market economy in an age of market-scepticism, and to facilitate the progressive expansion of competition law to address modern market failures.

Executive Accountability and National Security

Abstract: The protection of national security has traditionally been an exception to general norms of public accountability, based on prerogative powers. The last three decades have seen efforts to bring national security closer to the normal constitutional control mechanisms of parliament and the courts. The design of and changes to mechanisms of accountability have, however, been accepted without discussion of the often narrower purposes for which they were first established (most notably for oversight of surveillance), the extent of their departure from constitutional principles, or their impact in embedding new forms of exceptionalism in the constitutional framework. This article critically assesses these developments, prompted for example by the Law Commission's recommendations to reform official secrets laws, which adopted trusted intermediary and indirect accountability models without full consideration of historical and contemporary concerns or the exceptionalism on which they were based. Though focused on the UK, our account provides a cautionary tale for national security law reform in any modern democracy.