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Edited by Yariv Brauner
Anne Peters, Heike Krieger and Leonhard Kreuzer
As a standard bridging law and other spheres of normativity, due diligence is pervasive across numerous areas of international law. This paper defines the features and functions of due diligence, illustrating how the concept's development reflects structural changes in the international legal order. Concerning their content, due diligence obligations can be separated into two overlapping types: procedural obligations and obligations relating to States' institutional capacity. Thus, due diligence serves to manage risks, compensate for States' freedoms being circumscribed through legalisation, expand State accountability and possibly stabilise the international order through ‘proceduralisation’. However, it is argued that due diligence cannot be characterised as a general principle of international law due to its diverse content in different fields of international law and its dependence on accompanying primary rules. Finally, it is contended that due diligence introduces certain risks, particularly by diluting States' substantive obligations and contributing to the rise of ‘informal’ international law.
Catherine Drummond and Patrick Simon Perillo
Sophie Lawrance and Aimee Brookes
In May 2020 the Court of Appeal gave judgment in Competition and Markets Authority v. Flynn Pharma and Pfizer, which adjusted the starting point for costs awards following successful appeals of Competition and Markets Authority decisions. Following this judgment, such awards by the Competition Appeal Tribunal must start from the position that no order as to costs should be made against the CMA, rather than the standard approach of ‘costs follow the event’ that had been the CAT's established practice. This article examines the rationale for the CAT's past practice, the basis for the Court of Appeal's judgment altering that approach, and considers the potential implications the judgment may have.
Prior to the Arab Spring uprisings in 2011, no constitutional protection for intellectual property (IP) existed in the many earlier constitutions of Egypt or Tunisia. It is remarkable and surprising therefore that, in 2014, IP clauses appeared in the post-revolutionary constitutions of both countries. This raises the key question: why add to the existing regulation of IP in this way. Is constitutional protection just another example of the inexorable strengthening of IP rights (IPRs) or could it be a means of constraining them, where necessary, to protect other rights? This article argues that including IP in a constitution may, rather than merely strengthening IP owners' rights, open IPRs up to competition against more fundamental constitutionally protected human rights and, for example, support the prioritization of the right to health. This could be a valid explanation for and potential use of the inclusion of IP in the Egyptian and Tunisian Constitutions.