https://nilq.qub.ac.uk/index.php/nilq/issue/feed Northern Ireland Legal Quarterly 2018-06-13T14:39:38+00:00 Mark Flear m.flear@qub.ac.uk Open Journal Systems <p>The <em>Northern Ireland Legal Quarterly</em> is a legal research journal published quarterly by the School of Law at Queen's University Belfast.</p> <p>The journal is published four times a year by the School of Law, Queen's University Belfast. The journal considers prospective articles on all areas of law and from all methodologies. Articles become available on an open access basis one year after publication. If you are interested in submitting an article to the NILQ, please see our '<a href="https://nilq.qub.ac.uk/index.php/nilq/information/authors">For authors</a>' section.</p> https://nilq.qub.ac.uk/index.php/nilq/article/view/82 Harmonisation of avoidance rules in European Union insolvencies: the critical elements in formulating a scheme 2018-06-13T14:39:38+00:00 Andrew Keay A.R.Keay@leeds.ac.uk <p><em>Only the harmonisation of laws is seen as being able to solve legal uncertainty resulting from legal diversity, but, notwithstanding the advent of the EC Regulation on Insolvency Proceedings, thus far there is no real harmonisation of insolvency laws in the EU. There are indications that the European Commission (EC) has been considering the formulation of a scheme for the harmonisation of the rules that apply in insolvency proceedings to permit the avoidance of transactions entered into prior to the commencement of insolvency proceedings. On this basis this article identifies and analyses those factors that will need to be considered and addressed in the formulation of any harmonised scheme, as well as ascertaining the problems that these factors may cause in the construction of such a scheme. This is a critical issue, for it is all well and good to say that there should be harmonisation, but how that is done, what must be taken into account and what is included in any harmonised scheme is another matter and requires careful thought and consultation.</em></p> 2018-05-11T00:00:00+00:00 ##submission.copyrightStatement## https://nilq.qub.ac.uk/index.php/nilq/article/view/84 Post-Brexit Britain and the pay culture: challenges and opportunities 2018-06-11T08:25:27+00:00 Demetra Arsalidou ArsalidouD@cardiff.ac.uk Alison Lui A.Lui@ljmu.ac.uk <p><em>This paper examines the impact of Brexit on financial services regulation in relation to three areas linked&nbsp;</em><em>to executive remuneration. They are: the bonus cap; the clawback of pay; and the level of disclosure required&nbsp;</em><em>by shareholders with regard to details of directors’ remuneration. It will be argued that legally Brexit will&nbsp;</em><em>have little impact on any of the three areas. UK legislation has already incorporated a great deal of EU&nbsp;</em><em>legislation. The status quo of retaining such legal restrictions seems sensible in light of public sentiment&nbsp;</em><em>towards unfairness in executive compensation and uncertainty towards the Brexit negotiations. Nevertheless,&nbsp;</em><em>London faces stiff competition from other major international financial centres in a post-Brexit era. The&nbsp;</em><em>loss of single passporting rights is also encouraging major banks to invest in other European financial&nbsp;</em><em>centres. Brexit creates opportunities too. With the integration of digital technology, it is possible to create&nbsp;</em><em>convenient platforms where investors can access reports on executive remuneration.</em></p> 2018-05-11T00:00:00+00:00 ##submission.copyrightStatement## https://nilq.qub.ac.uk/index.php/nilq/article/view/89 Creeping compulsion to mediate, the Constitution and the Convention 2018-06-11T08:25:27+00:00 Ronán Feehily ronan.feehily@canterbury.ac.nz <p><em>The court backlog in some European countries has inspired the introduction of compulsory mediation schemes to deal with various commercial claims. The article reviews the developing jurisprudence from various courts throughout Europe, to assess the seemingly relentless public policy move towards compulsory mediation and the implications that this has for commercial parties in dispute, lawyers involved in the process and the administration of justice in Europe. The potential that such an approach could amount to a violation of the rights guaranteed by Article 6(1) of the European Convention on Human Rights, as enshrined within the European Convention on Human Rights Act 2003, and Article 40.3 of the Irish Constitution is analysed. The article ultimately discusses the optimal approach for the courts and the legislature to follow to strike the appropriate balance between strong encouragement and coercive compulsion that would avoid offending constitutional and Convention rights and foster a mediation culture.</em></p> 2018-06-08T07:07:52+00:00 ##submission.copyrightStatement## https://nilq.qub.ac.uk/index.php/nilq/article/view/90 Do constructive trusts deter disloyalty? 2018-06-11T08:25:27+00:00 Andrew Hicks A.D.Hicks@hull.ac.uk <p><em>Constructive trusts of disloyal fiduciary gain often are justified by the argument of deterrence. For there to&nbsp;</em><em>be effective deterrence, two conditions must be satisfied: first, potentially disloyal fiduciaries must be&nbsp;</em><em>sufficiently informed, directly or indirectly, of the properties of the constructive trust; secondly, fiduciaries&nbsp;</em><em>must respond by accurately weighing the costs/benefits of disloyalty and other options before choosing the&nbsp;</em><em>option that maximises their self-interest. Typically, one or both of these conditions will not be satisfied.&nbsp;</em><em>Drawing upon insights from the behavioural sciences we find that fiduciaries contemplating disloyalty&nbsp;</em><em>generally cannot be expected to be cognisant of the properties of the constructive trust and therefore cannot&nbsp;</em><em>be influenced by them. Even when known, such properties will not necessarily influence fiduciary behaviour&nbsp;</em><em>due to the way well-informed fiduciaries are likely to perceive and process the risk that their disloyalty will&nbsp;</em><em>be detected. The deterrence gains generated by the recognition of a constructive trust are therefore likely to be&nbsp;</em><em>negligible.</em></p> 2018-06-08T07:09:15+00:00 ##submission.copyrightStatement## https://nilq.qub.ac.uk/index.php/nilq/article/view/91 A little Parthenon no longer: the proportionality of tobacco packaging restrictions on autonomous communication, political expression and commercial speech 2018-06-11T08:25:28+00:00 Eoin O'Dell ODELLE@tcd.ie <p><em>This paper evaluates the constitutionality of statutory restrictions upon tobacco packaging in Ireland. It&nbsp;</em><em>concludes that public health and the protection of children constitute pressing and substantial reasons&nbsp;</em><em>sufficient to justify the Public Health (Standardised Packaging of Tobacco) Act 2015 and part 5 of the&nbsp;</em><em>Health (Miscellaneous Provisions) Act 2017 as proportionate restrictions upon tobacco companies’ freedom&nbsp;</em><em>of political expression protected by Article 40.6.1 of the Constitution and freedom of autonomous&nbsp;</em><em>communication protected by Article 40.3.1.</em></p> 2018-06-08T07:10:13+00:00 ##submission.copyrightStatement## https://nilq.qub.ac.uk/index.php/nilq/article/view/92 Regulatory revolution and new competition in the European Union payments industry 2018-06-11T08:25:27+00:00 Rory Copeland rcopeland09@qub.ac.uk <p>N/A</p> 2018-06-08T07:11:16+00:00 ##submission.copyrightStatement##