English & Commonwealth Law eJournal最新文献

{"title":"Pith and Marrow is Dead… Long Live Pith and Marrow: The Doctrine of Equivalents After Actavis","authors":"Wissam Aoun","doi":"10.2139/ssrn.3897975","DOIUrl":"https://doi.org/10.2139/ssrn.3897975","url":null,"abstract":"In Actavis v Eli Lilly, the UK Supreme Court overturned its previous Kirin-Amgen decision, ushered in a new U.K. doctrine of ‘extended protection’, and in so doing, proclaimed that it had finally brought U.K. patent jurisprudence in line with the objectives of Article 69 of the European Patent Convention [EPC]. A considerable amount of commentary leading up to Actavis, as well as the Actavis judgment itself, highlighted how U.K. patent jurisprudence of the post-Article 69 era suffered from a flawed, U.K.-centric tunnel vision, instinctively presuming that Article 69 was simply a reflection of existing U.K. patent practice and, as such, U.K. patent law was already in compliance with EPC obligations. The weight of opinion was that Article 69 was meant to stake out a middle ground of claim scope, between literalistic, peripheral-style claiming, exemplified by traditional U.K. patent jurisprudence, and the non-literalistic, central-style claiming, exemplified by traditional German patent jurisprudence. In extending protection beyond literal claim infringement to cover non-literal equivalents, the UKSC declared that it had finally moved U.K. patent doctrine to the desired middle ground of the Article 69. However, what these commentaries overlook is that movement away from literalism was not the only shift in U.K. patent practice that Article 69 intended to achieve. Rather, a historical and comparative analysis demonstrates that in the lead-up to Article 69, commentators and EPC negotiators held similar apprehensions regarding the U.K. ‘colourable evasion’ doctrine. To these commentators, ‘colourable evasion’ embodied many of the concerns surrounding both literalistic, peripheral claiming and non-literal, central claiming. Similarly to literalism, ‘colourable evasion’ relied almost entirely on judicial interpretation, as opposed to the more fact-based and infringement-focused claim scope doctrines of Continental patent practice. Furthermore, like the non-literalistic approach of central claiming, such as the German ‘general inventive concept’, ‘colourable evasion’ could undermine the notice function of claims by permitting the judicial vitiation of claim elements based entirely on a generalized ‘inventive concept’. Post-Actavis jurisprudence demonstrates that the Actavis test, with its reliance on the inventive concept as the point of departure for non-literal infringement, has re-introduced many of the same concerns associated with both the U.K. ‘colourable evasion’ doctrine and the German ‘general inventive concept’. Accordingly, the Actavis test, in many ways, may be a return of ‘colourable evasion’ and the ‘general inventive concept’ rather than the doctrine of ‘pith and marrow’. The irony is that in pursuit of harmonization, German patent practice abandoned the ‘general inventive concept’ only now to see its return in the form of the U.K.’s Actavis test. In this sense, while Actavis took a critical view of preceding jurisprudence’s narrow, U.K.-ce","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-08-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121015023","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"THE ATO TR 2021/D4 - Taxation of Software Payments as Royalties - Comments on the Draft Ruling","authors":"Ganesh Rajgopalan","doi":"10.2139/ssrn.3897521","DOIUrl":"https://doi.org/10.2139/ssrn.3897521","url":null,"abstract":"Taxation of software payments as royalties has been a vexed issue worldwide. The controversy has been settled to some extent by the Supreme Court in India but that ruling has also thrown up new controversies for future litigation. A fresh attempt by the Australian tax authorities to characterise software payments as royalties is interesting but not without problems. This piece deals with the understanding of the exclusive rights available to a copyright owner under the Australian Copyright Act, 1968 and the impact that should have while ascertaining the characterisation of software payments under the ITAA 1936. The conclusions drawn also should apply to interpret the meaning of the term royalties in double tax avoidance agreements. The write up is based on the submissions made by the author to the ATO in response to the Draft Ruling.","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-07-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133249680","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Internal Market: An Historical Perspective","authors":"P. Craig","doi":"10.2139/ssrn.3892677","DOIUrl":"https://doi.org/10.2139/ssrn.3892677","url":null,"abstract":"This chapter is an historical perspective on the internal market. It is a challenging enterprise. To distil a narrative flow from 60 years of development necessitates discretion and choice, the very exercise of which perforce shapes the ensuing story. There are doubtless multiple stories that could be told. I have ‘form’ in this respect, having already had one shot at this twenty years ago, when I articulated a relatively straightforward linear trajectory. This chapter is not, however, an updated version of that penned earlier. It is a different view of the cathedral, which is more accurately regarded as historical-conceptual. The narrative consists of three distinct, albeit related, parts. The first part is concerned with negative integration and the four freedoms, and is dealt with in sections II-VI. The analysis begins by setting out the conceptual frame that is used to explore the four freedoms. It draws on Robert Schütze’s three models of integration, the international, the federal and the national, as the lens through which to view the development of the law in the respective areas. It will be argued that the contours of the internal market have been shaped principally by the interplay between the international and federal models; that the balance between the two is not identical across all four freedoms; and that there are interesting differences in the meaning of discrimination and market impediment that underpin the two models when applied in relation to the four freedoms. The focus in the second part of the chapter switches to positive integration and harmonization, which is examined in sections VII-IX. It begins by setting out the classic story of positive integration, which has a Treaty dimension, a legislative dimension and a judicial dimension. There is much in this that withstands scrutiny. It will, nonetheless, be argued that the received wisdom concerning the critique of Article 114 is misplaced in certain respects, when analysed from a constitutional, interpretive and political perspective. It will also be argued that there is excessive concentration on Article 114 TFEU when considering positive integration in the EU. The internal market has been advanced by many regulations and directives enacted pursuant to other Treaty provisions. Some entail harmonization, others do not. It should not, however, be assumed that harmonizing measures are necessarily more efficacious, or more limiting of Member State autonomy, than other legislative provisions designed to advance the internal market. There is, as will be seen, no a priori reason why this should be so. The final part of the chapter considers the tension between the economic and the social in the internal market, which is addressed in section X. The nature of the tension is set out, including the implications for the EU legal order. This is followed by discussion of the ways in which the tension is alleviated, albeit not cured. The factors that are salient in this regard are const","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-07-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132658561","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"AI in the Boardroom: Let the Law be in the Driving Seat","authors":"Joseph Lee, Peter Underwood","doi":"10.2139/ssrn.3874588","DOIUrl":"https://doi.org/10.2139/ssrn.3874588","url":null,"abstract":"This paper discusses the policy goal and the importance of law and regulation in introducing artificial intelligence (AI) to the boardroom. First, the authors argue that AI in the boardroom should be utilised to address the current shortcomings in the corporate governance – corporate short-termism. Secondly, AI can be programmed to assist the board in considering the wider societal interests as AI can digest big data generated daily, beyond the capability of manual processing of such amount of data within meaningful time duration. With well-designed algorithmic steps, AI can provide guidance independent of human subjective judgements focused on shareholder short-termism and board opportunism. Thirdly, company law should be revised to support this AI-assisted corporate sustainable development by mitigating the legal risks of the board so as to encourage the directors to use AI to achieve the ESG goals of the company.","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126052124","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Back to School - and After","authors":"J. Shackleton","doi":"10.2139/ssrn.3850623","DOIUrl":"https://doi.org/10.2139/ssrn.3850623","url":null,"abstract":"School closure has been damaging to the mental health of some children and to the educational progress of many. The long-term costs to individuals and the economy of this hiatus in schooling can be exaggerated, but are still likely to be substantial. The costs of the damage are likely to have fallen most heavily on poorer or otherwise disadvantaged children, and the government is understandably taking particular note of this in designing policies to assist educational recovery. As with the NHS, the COVID-19 crisis has exposed longstanding problems in the educational system, and there is a strong case for government policy to look beyond short-term recovery and temporary changes. Such policies as changing the structure of the school year and school day length, which have been advocated for years, could now be brought forward. The government could consider changing the ages, at which children enter and leave primary school, review teaching practices in light of new technologies and changes in how children learn. It should become easier for a wider range of people to become teachers, and the requirement for Qualified Teacher Status could be dropped. In the short run, some form of examination is needed for A-levels and other terminal qualifications, rather than reliance on teacher assessment. In the longer term, the National Curriculum could be decluttered, and there could be only a limited number of examinations at the age of sixteen. A-levels might usefully revert to a modular structure. The Pupil Premium could be given to parents to spend on tutorial support or other relevant educational provision. Experiments with education vouchers could also be encouraged, with the ultimate objective of making it possible for the distinction between state and independent schools to be broken down.","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"46 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-02-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125462137","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The UK’s Green Paper on Post-Brexit Public Procurement Reform: Transformation or Overcomplication?","authors":"A. Sanchez-Graells","doi":"10.21552/EPPPL/2021/1/4","DOIUrl":"https://doi.org/10.21552/EPPPL/2021/1/4","url":null,"abstract":"In December 2020, seeking to start cashing in on its desired ‘Brexit dividends’, the UK Government published the Green Paper ‘Transforming Public Procurement’. The Green Paper sets out a blueprint for the reform of UK public procurement law that aims to depart from the regulatory baseline of EU law and deliver a much-touted ‘bonfire of procurement red tape’. The Green Paper seeks ‘to speed up and simplify [UK] procurement processes, place value for money at their heart, and unleash opportunities for small businesses, charities and social enterprises to innovate in public service delivery’. The Green Paper seeks to do so by creating ‘a progressive, modern regime which can adapt to the fastmoving environment in which business operates’ underpinned by ‘a culture of continuous improvement to support more resilient, diverse and innovative supply chains.’ I argue that the Green Paper has very limited transformative potential and that its proposals merely represent an ‘EU law +’ approach to the regulation of public procurement that would only result in an overcomplicated regulatory infrastructure, additional administrative burdens for both public buyers and economic operators, and tensions and contradictions in the oversight model. I conclude that a substantial rethink is needed if the Green Paper’s goals are to be achieved.","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-02-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127425386","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Two Conditions for the Part 26A Cram Down","authors":"R. Mokal","doi":"10.2139/ssrn.3742720","DOIUrl":"https://doi.org/10.2139/ssrn.3742720","url":null,"abstract":"This article considers the two conditions that must be met before the Court may “cram down” one or more dissenting classes of creditors or members by sanctioning a plan pursuant to Part 26A of the Companies Act 2006 (inserted by the Corporate Insolvency and Governance Act 2020). Condition A effectively requires that only the restructuring surplus — the value likely to be preserved and perhaps created by the implementation of the proposed plan — be in play in relation to a dissenting class which is sought to be crammed down. This constitutes a key safeguard against expropriative redistribution of value from dissenting classes to others. Condition B appears based on but is different from the US Bankruptcy Code provision that the court may only approve a plan if at least one impaired class has accepted it. This article draws out the similarities and differences between Condition B and its US inspiration, then draws on US and UK jurisprudence to show how Condition B may most efficaciously be interpreted. The cram down jurisdiction as a whole and Condition B in particular are open to harmful manipulation in several ways. Both US and UK jurisprudence potentially provides the resources that UK courts will need to counter such manipulation.","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-12-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121809822","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Comparative Study of Duty of Care (Devoir De Vigilance) in Upstream Petroleum Projects","authors":"Amin Ghanbari Amirhandeh","doi":"10.2139/ssrn.3755192","DOIUrl":"https://doi.org/10.2139/ssrn.3755192","url":null,"abstract":"Present memoire is a comparative study that tries to shed light on the notion of duty of care or as French say, devoir de vigilance of multinationals in their foreign direct investments; it draws a general doctrinal normative map of the duty of care and describes to what extent the two legal systems of France and the United Kingdom resemble or differ in their perspective towards this notion.<br><br>It explains that notion universally consists of two pillars (or sub-regimes): first the duty to conduct and maintain due diligence in order to address, mitigate and prevent risks of an investment project and second, the obligation to redress and amend damages if the endeavors of due diligence fail.<br><br>Doing that, it uses typical facts of an upstream petroleum project, as application of the notion of duty of care is, in many aspects, heavily fact-based, including in its assessment of the concept of control that plays a leading role in connecting default and liability of the operating entity and its principal (i.e. the multinational).","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-09-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122023612","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Critical Analysis of Legal Implications for the Executive Remuneration","authors":"V. Kruglyak","doi":"10.2139/ssrn.3692113","DOIUrl":"https://doi.org/10.2139/ssrn.3692113","url":null,"abstract":"This research examines the legal precedents that allow the disproportional increase in the executive pay at the UK and the US based corporations. At its core, the argument explores incompatibility of the regulatory instruments with the corporate practices used to issue the excessive compensation packages for the Chief Executive Officers and their teams. Starting from the analysis of the authority and information asymmetry, the focus of research narrows on the current regulatory instruments and outcomes they produce. The goal is to discover how CEOs can achieve the higher compensation while violating no existing Government guidelines on the executive pay and regulations of the corporate governance. The existence of legal consequences under study as to the impact that the executive pay creates on the rights of shareholders. Consequently, the question is explored as to what extent the decrease of dividends and retained earnings were affected as a result of a CEO’s pay. By analysing existing regulatory instruments and by showing how they are circumvented, this research considers what changes may be necessary to the executive compensation policies, protection of dividends, and guarantee of voting rights for all shareholders and stakeholders in a publicly traded corporation.","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"271 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-09-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134286486","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Political Economy of Australian Regulatory Reform","authors":"Darcy W. E. Allen, C. Berg, A. Lane, P. McLaughlin","doi":"10.2139/ssrn.3682317","DOIUrl":"https://doi.org/10.2139/ssrn.3682317","url":null,"abstract":"The problem of regulatory accumulation has increasingly been recognized as a policy problem in its own right. Governments have then devised and implemented regulatory reform policies that directly seek to ameliorate the burdens of regulatory accumulation (e.g. red tape reduction targets). In this paper we examine regulatory reform approaches in Australia through the lens of policy innovation. Our contributions are twofold. We first examine the evolutionary discovery process of regulatory reform policies in Australia (at the federal, intergovernmental and state levels). This demonstrates a process of policy innovation in regulatory mechanisms and measurements. We then analyse a new measurement of regulatory burden based on text analytics, RegData: Australia (see Al-Ubaydli and McLaughlin 2017; McLaughlin et al 2019). RegData: Australia uses textual analysis to count “restrictiveness clauses” in regulation — such as “must”, “cannot” and “shall” — thereby developing a new database (RDAU1.0). We place this “restrictiveness clauses” measurement within the context of regulatory policy innovation, and examine the potential for further innovation in regulatory reform mechanisms.","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-08-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121186089","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}