In Van Gend en Loos and Costa, the Court stated that EU law was an autonomous legal order which limited the sovereignty of member States. These EU law qualities prevent other laws determining central elements of EU law (‘autonomy of EU law’); grant precedence to EU law over national law (‘primacy of EU law’); allow EU law alone to determine when there is a conflict between it and national law and the consequences of that (‘pre-emption’); and require national authorities to ensure that the EU legal system functions effectively and its authority is sustained (‘fidelity principle’). Historically, most national courts have accepted the authority of EU law over national law, subject to three constraints. First, EU law should not violate fundamental rights recognised in their respective constitutions. Secondly, if it generates significant consequences for the national democracy, the EU law must not be clearly ultra vires. Thirdly, a number of courts will not accept EU law primacy on matters that go to that State’s constitutional identity, most notably those issues over which that court believes national parliaments have the necessary democratic pedigree.

This chapter puts the developed theory to the test. First, after outlining the most important case law of the CJEU on the relationship between EU and Member State law, which has introduced primacy of EU law (also over Member State constitutional law) and the doctrine of direct effect, this chapter also displays the most important judgments by Member State constitutional courts generally holding that there are limits to the primacy of EU law. After analyzing the most important theoretical conceptions and doctrines in literature addressing the difference between the CJEU and the Constitutional Courts of some Member States, this chapter shows how consent-based monism can provide for relief. According to consent-based monism, the EU is the larger circle with regard to its Member States. All EU Member States in turn are independent smaller circles which are also part of the EU circle. The EU competence regime is decisive in this regard. It is vital to pinpoint exactly which competences have been shifted to the European level. According to consent-based monism, an “integration resistant core” must not violate any consensus that has been obtained at the level of the larger EU circle. The larger circle must not autonomously add competences without authorization by all of the smaller circles.

This chapter investigates legal accountability of financial assistance from the perspective of borrower countries. It adopts an empirical approach taking the Portuguese case to test how accountability of the financial assistance programme, on the one hand, and of the national measures implementing conditionality, on the other, was exercised. The investigation focuses on the judicial review of austerity measures in different institutional contexts comprising the domestic constitutional court, the Court of Justice of the European Union (CJEU) and the European Court of Human Rights. It aims at assessing in how far these judicial fora have delivered the accountability goods identified in the introductory chapter, particularly publicness, as the good oriented towards ensuring that public action is guided by common goods, namely that it respects the constitutional principles of equality and proportionality.

This chapter reviews the modern cases on the ‘third source’ in England and Wales and around the Commonwealth. This review illustrates that the law is fundamentally uncertain on the legal nature and exact provenance of these powers within each jurisdiction surveyed. It also illustrates that basic questions of legal theory relating to official empowerment and official action are unavoidable in the context of non-statutory executive powers. This demonstrates the gap between theory and practice in a specific context and justifies the need for the basic and wide-ranging interrogation of the law of judicial review undertaken in the book.

This chapter sets out the taxonomy of non-statutory executive powers ultimately adopted. It is a very simple taxonomy that draws a fundamental distinction between statutory and non-statutory executive powers but no distinctions for the purposes of judicial review between non-statutory executive powers associated with the Royal Prerogative and those that are more mundane, and appear to be nothing more than the ‘residual liberties’ of the Crown as a legal person. Once the logic of office, official empowerment, and official action is adopted as a premise, the idea of the ‘third source’ as generally articulated simply falls away. While the distinction may be interesting or useful in a historical sense, it is of no relevance to the ‘how’ or ‘why’ of judicial review.

This chapter explores the different ways of approaching judicial review, and makes some initial criticisms of the historical ‘ultra vires debate’ of the 1990s and 2000s. It argues for a return to the concept of jurisdiction (and jurisdictional error) as a central category of the law, and for a focus on non-statutory executive powers as a primary case for and from which to build a theory of the supervisory jurisdiction. While legislative intention is important, wherever it is relevant, it is not relevant where the official powers in question obviously derive from rules of competence outside of legislation. Further, common law rules of conduct are always central to judicial review in the context of statutory grants of power. This insight is conducive to a simpler and more powerful conception of judicial review based around a common law doctrine of ultra vires.

This chapter provides some more detail on the rules of competence and rules of conduct that empower officials to act as such and constrain the scope of their action. The logic of empowerment, and the fundamental distinction between ability and permission, provides a profound insight into the two traditional ‘limbs’ of the ultra vires rule – the ‘narrow’ limb concerned with competence, jurisdiction, or vires in the strict sense, and the ‘broad limb’ concerned with the manner, form, and purpose of an exercise of a competence that the official clearly does have. Not only does this provide a simple and powerful explanation for the ultra vires review of non-statutory executive powers; it provides the foundation for a general theory of judicial review based in the courts’ inherent (common law) jurisdiction to police the bounds of, and constraints upon, officials’ vires – whether statutory or non-statutory.

This chapter introduces the problem of official action beyond statute as a central concern to public law theory. It reviews the most important classical accounts of the Royal Prerogative and the modern notion of a ‘third source’ of executive power besides statute and prerogative. It also introduces a major them in the book, namely the concept of ‘official power’ as a set of ‘legal powers’ and uses this critically to assess common misconceptions about the nature of official action beyond statute – particularly conceptions of the third source as a set of ‘residual liberties’ inuring in the Crown in common with private individuals.

This chapter addresses the vital issue of which law which should apply to substantive proceedings between parties to derivatives contracts. The discussion presumes that the jurisdiction of the English courts has been chosen or otherwise settled, as discussed in the Chapter 8. Accordingly, the impact that a contractual choice of law may have on disputes about jurisdiction is not addressed here.

The previous chapter explored the pivotal role of the ISDA Master Agreement in the evolution of the OTC derivatives markets and highlighted the combination of legal techniques behind the various ‘self-help’ remedies in this contract. These contractual remedies, which culminate with Close-out, are designed to manage disruption arising during the lifespan of a derivatives contract without requiring recourse to the formal procedures associated with enforcing rights under general law. While versions of these self-help remedies appear in many types of financial contracts, including in market standard syndicated loan agreements and in the terms and conditions of debt securities, they have reached unmatched levels of sophistication in the derivatives context. As such they have been referred to in a recent English case as amounting to ‘an exclusive code’ under which parties manage the implications of a breach of contract, to the exclusion of the general law. As is now well-documented in the literature addressing the transnational qualities of modern finance, these arrangements underpin the cross-border markets in OTC derivatives by promoting autonomy from national insolvency law, a strategy which has, in turn, enjoyed generous regulatory treatment. The questions to which this chapter now turns is what role is left for the courts in relation to such a tightly designed, closely maintained and ‘exclusive’ contractual framework, and, as a starting point, why such litigation arises in the first place.

This book evaluates thirty years of cases arising from the global derivatives markets. This period starts with the landmark House of Lords’ decision in Hazell v. Hammersmith and Fulham London Borough Council, takes us through the surge of litigation triggered by the 2008 global financial crisis and up to the United Kingdom’s exit from the European Union. The book details how these cases have evolved in line with the markets themselves, growing more complex, more international and more technically challenging over time, but it also identifies remarkably consistent legal themes. Most importantly, it finds that the process of resolving disputes between participants in the derivatives markets across this period has, after a notorious start, been a source of robust rules for this systemically significant sector of the global financial markets and has helped to shape commercial law more broadly. This study also finds, however, that are important and ongoing challenges associated with this recent manifestation of ‘international business justice’.

Companies have to act through their directors, officers or members and there need to be rules to govern how the internal processes of the company operate. These rules govern a wide range of issues including how shares will be allocated, the rights attaching to shares, the rights and responsibility of members and directors, and how meetings will be held. Historically, it was necessary for the persons setting up a company to adopt a Memorandum of Association and Articles of Association to deal with such issues. The Memorandum of Association contained basic information about the company such as; its name; the amount of its share capital; the number of shares issued; that the liability of members was limited; and the names, addresses, occupation and number of shares taken by each member. Sometimes it also contained an objects clause, which stated the purpose of the company.