Abstract Comparative trust scholarship has long recognised that ‘ownership’ is an unstable comparator across civilian and common law systems, yet it has not supplied an affirmative replacement independent of any one tradition’s doctrinal vocabulary. This article proposes a three-axis framework — control, administration and benefit — as an alternative unit of comparison. The axes distinguish functional capacities without first deciding who holds ownership or title. The legal vesting of title is then considered separately as part of each system’s doctrinal implementation of that allocation. The framework is applied to the civilian bewind in its South African, Dutch and Belgian forms, to the Quebec and French fiducies and to the common law trust. The bewind is used not as an analogy or a normative model, but as a diagnostic contrast: its allocation of control and administration to the administrator, while locating benefit with the beneficiary, exposes the different combination of legal title, control and administration in the common law trustee. On this account, the trustee’s indemnity-backed lien, priority disputes and related insolvency and third-party liability problems are reconstituted as consequences of a structural allocation rather than as isolated doctrinal anomalies. The article situates structural contrast within the functional tradition and alongside the formants and transplant approaches. Its claim is methodological rather than reformist: structural allocation, not ownership, is the proper unit of comparison.
Following the International Court of Justice's (ICJ) Advisory Opinion on the Obligations of States in Respect of Climate Change, not only have States' obligations and responsibilities regarding climate change come into greater focus, but so too have those of private corporate greenhouse gas (GHG) emitters. The ICJ opinion adds to an array of recent legal and regulatory developments that are shaping the accountability of corporate actors for climate actions and impacts. This article aims to provide a basis for critical analysis of the role of law and regulation in contributing to global corporate climate accountability, thus responding to a significant gap in the literature and practice. Underpinned by greater appreciation of carbon major companies' role in driving climate change-and growing scientific evidence attributing specific impacts to their emissions-the article argues that a legal 'ecosystem' for global corporate climate accountability is emerging and seeks to map its core characteristics and inflection points. Developments across this ecosystem are taking place at and between the levels of international, domestic/regional and transnational law, including the ICJ's advisory ruling, transnational climate cases, harmonised standard-setting processes and findings in domestic and regional corporate climate litigation. As interactions between these legal developments increase, the resulting ecosystem of applicable norms and implementation mechanisms is becoming denser. This article discusses hypothesised implications of these interactions across the global corporate climate accountability ecosystem, asking to what extent the ecosystem's growing density may amplify corporate accountability for climate harms or, conversely, dilute companies' accountability for the climate effects of their activities by fragmenting the legal response across a multitude of forums.
Abstract Four leading corporate-law jurisdictions, the US state of Delaware, England, Australia and Japan, recognise some form of ‘corporate compliance duty’ requiring company directors to facilitate corporate compliance with domestic law, the breach of which may result in personal civil liability to the company. However, they differ in how the duty responds to corporate non-compliance with foreign law. Choice-of-law analysis under private international law poses a potential obstacle because it mainly treats directors’ duties as governed by one lex societatis (typically the law of the state of incorporation, lex incorporationis) and excludes all other laws. This article proposes that the emerging private international law technique of ‘taking into consideration’ be used to facilitate better engagement with foreign law when adjudicating directors’ duties, and to increase corporate law’s permeability to foreign legal norms to better respond to demands for accountability in globalised business.
Abstract This article investigates the legal consequences of treaty signature not followed by ratification, focusing on France’s 64-year-old signature of the 1961 Convention on the Reduction of Statelessness. France’s engagement with the 1961 Convention is unusual, raising multiple questions. One question relates to the customary status of Article 18(a) of the Vienna Convention on the Law of Treaties (VCLT). This provision requires States to refrain from acts defeating a treaty’s object and purpose prior to ratification. However, France is not a party to the VCLT, and in any event the VCLT post-dates the 1961 Convention and does not apply retroactively. Therefore Article 18 does not apply to France unless equivalent obligations exist in customary law. Another question relates to France’s international obligations rooted in customary international law on statelessness. These obligations include rules of customary law which are codified in or have crystallised as a result of the 1961 Convention. After outlining the customary status of Article 18(a) VCLT and of key provisions of the 1961 Convention, the analysis turns to the role of France in drafting the Convention, its reservations, legislative practice and judicial engagement, and persistent failure to ratify despite legislative reforms and parliamentary debate. The article concludes that during the period between signature and ratification, France remains bound by two distinct sets of obligations arising from customary international law: those triggered by its signature under the obligation of a customary character reflected in Article 18(a) VCLT and those triggered by the customary obligations of States in relation to statelessness. Furthermore, the mere passage of time does not extinguish those obligations.
Abstract Until quite recently, the question of the scope of States’ duty to cooperate with the United Nations, as enshrined in Article 2(5) of the Charter of the United Nations, had remained largely confined to academic discussions. According to the prevailing view in the literature, this duty is limited to the action undertaken by the Security Council under Chapter VII of the Charter, and there has yet to be any meaningful practice to either support or challenge this interpretation. The humanitarian crisis in the Gaza Strip has, however, reshaped the landscape by bringing the duty to cooperate under Article 2(5) into sharp practical focus, with the issue making its way to The Hague in the context of advisory opinion proceedings before the International Court of Justice. This has permitted the first comprehensive insight into States’ understanding of the scope of this provision through their submissions to the Court. This article argues that these submissions demonstrate subsequent practice that supports an interpretation of Article 2(5) that is significantly broader than that advanced in the prevailing scholarship. It further suggests conceiving the duty to cooperate as a broad and flexible obligation of conduct–not exclusively triggered by action undertaken by the Security Council under Chapter VII–whose implementation may take a variety of forms and which must be fulfilled in good faith.
