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Judicial Review of Commercial Regulation$
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Jaime Arancibia

Print publication date: 2011

Print ISBN-13: 9780199609079

Published to Oxford Scholarship Online: May 2011

DOI: 10.1093/acprof:oso/9780199609079.001.0001

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The Broader Effect of the Principle of Proportionality

The Broader Effect of the Principle of Proportionality

(p.197) 6 The Broader Effect of the Principle of Proportionality
Judicial Review of Commercial Regulation

Jaime Arancibia

Oxford University Press

This chapter supplies a particular explanation concerning the scope of the principle of proportionality. It observes that there are justified reasons to think that this doctrine will be recognized as an independent ground of review within domestic law. First, it is necessary to consider the malleability of English law and its capacity to adapt to legal trends. Secondly, the principle of proportionality prescribes a much more structured approach to regulatory decisions than the Wednesbury doctrine. Thirdly, the broader effect is consistent with equality before the law which lies at the core of the rule of law. Consequently, the courts should be entitled to adopt a more rigorous test to deal with claims arising not only under the Human Rights Act (HRA) or EC law, but also under other areas of national law that have direct impact upon the operation of private businesses.

Keywords:   proportionality, adaptability, English law, Wednesbury, regulatory decisions, rule of law

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