English & Commonwealth Law eJournal最新文献

{"title":"Limitation of Liability for Damages in European Contract Law","authors":"R. Zimmermann","doi":"10.3366/ELR.2014.0204","DOIUrl":"https://doi.org/10.3366/ELR.2014.0204","url":null,"abstract":"Este artigo faz uma abordagem critica, sob uma perspectiva historica e comparativa, das regras contidas no capitulo sobre danos na proposta de Common European Sales Law – CESL. Chega-se as seguintes conclusoes: (i) a regra de previsibilidade, contida em varios ordenamentos juridicos, tem-se perpetuado no plano europeu, ainda que sem questionamento critico, se e idealmente adequada para os propositos segundo os quais foi projetada. (ii) O art. 161 do CESL nao contem previsao especi- ca para inadimplemento doloso ou realizado mediante culpa grave, o que se torna necessario. (iii) As normas relativas a “perda atribuivel ao credor” e “reducao de perda” sao problematicas em varios as- pectos. Deve-se abandonar tal distincao e ser criado um dispositivo uniforme intitulado “perda atribuivel ao credor”. Podem ser incorporadas concepcoes do direito holandes, direito alemao, dos Principles of International Commercial Contracts/Unidroit e do Grupo Acquis.","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"150 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-05-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134189398","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":"Recent International Commercial Arbitration and Investor-State Arbitration Developments Impacting on Australia's Investments in the Resources Sector","authors":"L. Nottage, S. Butt","doi":"10.2139/SSRN.2340810","DOIUrl":"https://doi.org/10.2139/SSRN.2340810","url":null,"abstract":"This paper highlights two sets of significant developments for businesspeople, legal advisors and policy-makers relating to international arbitration in the resources sector, particularly from an Australian perspective. Part 9.2 deals with international commercial arbitration (ICA), primarily between private firms, pointing out that a ‘legislative black hole’ arises for certain ICA agreements with the seat in Australia which were concluded before amendments to the International Arbitration Act (Cth) (IAA) commenced on 6 July 2010. Such ICA clauses are commonly included in long-term contracts, characteristic of the resources sector, so the IAA required amendment to provide support for ICA and these business relationships. A Bill introduced in 29 October 2014 aimed to fill this black hole. Part 9.3 turns to treaty-based investor-state arbitration (ISA), especially as it impacts on outbound investors from Australia. It reiterates opposition to the ‘Gillard Government Trade Policy Statement’, applied from April 2011 until the Abbott Government took power from 7 September 2013 and reverted to a case-by-case approach to including ISA protections in investment treaties. This Statement changed over two decades of treaty practice by insisting that Australia would no longer countenance any form of ISA in future treaties—even with developing countries with local laws and court systems that may not meet minimum international standards. We highlight problems that arise from such a stance, also proposed in a 2014 Bill in the Australian Senate from a minority Greens Party senator, by discussing two major developments in Indonesian law in 2012, both relevant to the resources sector. They suggest how international investment treaties (including two between Australia and Indonesia—both with ISA protections, which remain in effect, albeit perhaps limited in the earlier 1992 treaty) can help mitigate adverse effects on foreign investors. Part 9.3.1 discusses regulations issued to implement provisions of Indonesia’s Mining Law requiring eventual divestment of majority ownership to locals. Part 9.3.2 analyses a subsequent Constitutional Court decision to disband Indonesia’s regulator for upstream oil and gas exploration. Both examples highlight the need for Australia to retain ISA in addition to substantive law protections in any renegotiated or new investment treaty with Indonesia, including the bilateral free trade agreement under negotiation since September 2012, despite Indonesia’s announcement in March 2013 that it would be reviewing its 67 bilateral investment treaties.","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-04-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115431406","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 Rights and Duties of the Transacting Parties Under FOB International Sales Contract","authors":"Puja Soni","doi":"10.2139/SSRN.2423707","DOIUrl":"https://doi.org/10.2139/SSRN.2423707","url":null,"abstract":"'Free on board' or FOB is a trade phrase frequently invoked in an international as well as domestic sale contracts. The character of fob contract in trade law is to certify that the contract of sale, entered between vendor and purchaser, is followed by the buyer as the seller’s liability is limited to the shipment of goods. Risk of loss and property (title) in goods pass on the buyer when the goods are delivered on board of the nominated ship.","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"87 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-04-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121289115","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":"Is There a Defence of Good Consideration?","authors":"A. Burrows","doi":"10.5040/9781472561350.ch-007","DOIUrl":"https://doi.org/10.5040/9781472561350.ch-007","url":null,"abstract":"This essay examines an unresolved question in English law: is there a defence of good consideration to a claim for restitution of an unjust enrichment? It argues that there is no defence, as such, of good consideration. Rather the main issues thought to be raised by this defence relate to the much bigger question of the interplay between the ‘unjust factor’ and the fact that the enrichment was owed by the claimant to the defendant. It is possible to deal with this interplay by treating enrichment owed as a defence and this approach derives strong support from the United States Restatement Third: Restitution and Unjust Enrichment. However, the preferable strategy is to treat the fact that the enrichment was owed by the claimant to the defendant as an ‘upfront’ matter relating to prima facie liability, with the legal burden of proof being on the claimant, and not as a defence. At a deeper level, this involves recognising that the unjust factors and the civilian ‘absence of basis’ approaches are closer than has traditionally been thought.","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"154 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-04-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127338679","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":"Uses and Misuses of ‘Mutuality of Obligations’ and the Autonomy of Labour Law","authors":"N. Countouris","doi":"10.2139/ssrn.2416697","DOIUrl":"https://doi.org/10.2139/ssrn.2416697","url":null,"abstract":"This paper critically reviews the way in which English judicial decisions have developed the labour law concept of ‘mutuality of obligations’. The paper suggests that the primary purpose of this concept, as originally developed by Mark Freedland, was intended to be that of bringing to the fore of labour contract law analysis some relational aspects of work contracts that traditional contract law elements, such as contractual consideration, had typically failed to acknowledge. It argues that subsequent English court judgments have instead used mutuality as both i) a synonymous term of contractual consideration and ii) a pre-requisite of contractual continuity (in a vast range of personal work relations) in a way that clearly defeats the purpose of the concept as originally intended and unduly and adversely affects workers in precarious and atypical employment relations.","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"68 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-03-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121571618","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":"IEA Submission to the Budget","authors":"P. Booth, R. Bourne","doi":"10.2139/ssrn.3903870","DOIUrl":"https://doi.org/10.2139/ssrn.3903870","url":null,"abstract":"Abolish the budget in its current form Summary The annual budget should be abolished in its current form. It should be replaced by a simple statement outlining the tax rates, allowances and borrowing levels required to finance the government’s spending obligations as outlined in the previous Autumn Statement. New tax legislation should be introduced to parliament separately and debated by both houses of parliament. The government should commit to maintaining the current system of income tax relief for pension contributions, rather than creating a so-called ‘equalised’ rate of tax relief. The tax-free lump sum available from pension funds should be abolished. The government should not introduce a so-called ‘mansion tax’. Furthermore, marginal rates of stamp duty land tax should be significantly reduced over a five year period. Eventual abolition is desirable. The government should either replace council tax with a tax on imputed rent for homes worth more than £1 million, or introduce a tax on imputed rent on all but primary residences and for all foreign-owned residences. Child benefit should be abolished. It should be replaced with a system of fully-transferable household tax allowances. This system could be integrated with means-tested payments for lower-income households. Inheritance tax should be abolished in its current form. A lower rate of tax of 20 per cent should be introduced on lifetime gifts received over £500,000, with generous allowance for small gifts received by low earners in individual years. The 40p income tax threshold should be increased significantly. The government should correct for significant fiscal drag seen in recent times by imposing a ‘double-lock’ on the uprating of thresholds over the next parliament (raising thresholds by the rate of increase in prices or wages, whichever is higher). Thereafter, thresholds for all taxes (not just income taxes) should be automatically updated in line with wage growth.","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"39 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-03-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125204231","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 United Kingdom","authors":"P. Eeckhout, M. Waibel","doi":"10.2139/ssrn.2507141","DOIUrl":"https://doi.org/10.2139/ssrn.2507141","url":null,"abstract":"A range of complex factors affect the writing of a national report, from the UK perspective, on EMU governance questions. The first set of factors concerns the inherent complexity of the EU response to the financial crisis. A broad mixture of legal instruments have been employed, partly on the basis of the EU Treaties, but also partly outside the strict EU law framework. Those instruments involve the EU institutions, the Member States, but also novel institutions and bodies, such as the EFSF and the ESM. It is, indeed, trite that the EU's current economic and monetary governance system is a result of a lot of ad hoc bricolage. A second layer of complexity is a function of the UK's very special position vis-à-vis EMU governance. Here is a Member State with a permanent opt-out from the single currency, with no prospect of ever joining the euro on any perceptible political horizon. It is a Member State which refuses to participate in the construction of a Banking Union, but which depends on its financial services industry for prosperity and has a keen interest in the internal market for such services, and in protecting the City of London as a global financial centre. It is a Member State whose current government subscribes to austerity, but has declined to sign up to the Treaty on Stability, Co-ordination, and Governance (hereafter referred to as the Fiscal Compact). It is a Member State which preaches greater EU flexibility, but dislikes that EMU governance may be shifting towards the Eurozone, with the attendant decision-making confined to the Eurozone Member States. It is a Member State with a strong economic interest in a thriving Eurozone, but which stands on the sidelines watching the construction of the Eurozone’s governance system. A third element making the writing of this report more complex is the unsettled nature of the emerging governance system. It is true that, at the start of 2014, many parts of the system have, in political terms, been put in place. But for purposes of a constitutional and institutional assessment, from a legal perspective, the system continues to be in its infancy. Many legal instruments are not yet finalised, others have hardly been implemented as yet, and important case law is no doubt still to come. In the face of this range of complex factors, the aims of this report are modest. It is not our intention to analyse every conceivable issue regarding the UK's position towards EMU governance. We aim to discuss some of the main issues, with a view to introducing, and occasionally clarifying, the core debates. We do this from an academic perspective - as academics based in the UK (but not UK nationals!). With that hat on we do not shy away from personally commenting on some of the constitutional and institutional questions which the new system of EMU governance throws up. For a couple of those, the \"UK\" perspective is present in the sense that those questions have also been considered by other UK academics. Obviously,","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"49 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-02-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129327445","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":"Attribution in Company Law","authors":"Ernest Lim","doi":"10.1111/1468-2230.12091","DOIUrl":"https://doi.org/10.1111/1468-2230.12091","url":null,"abstract":"In Bilta (UK) Ltd (in liquidation) v Nazir (No 2), the Court of Appeal held that the ex turpi causa defence was inapplicable by refusing to attribute the fraud of the directors and the sole shareholder to the company in connection with the company’s claim against them and third party co-conspirators. It is significant that the court has not only clarified the law in relation to attribution, but it did so by rejecting the majority’s reasoning and endorsing the dissenting judgment in the House of Lords decision in Stone & Rolls (in liquidation) v Moore Stephens (a firm). This article evaluates the decision in Bilta by critically examining the fundamental principles and policies that apply to the three distinct circumstances under which corporate attribution should or should not take place.","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-01-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121827655","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":"Using Ideas Derived from Historical Institutionalism to Illuminate the Long-Term Impacts on Crime of 'Thatcherite' Social and Economic Policies: A Working Paper","authors":"S. Farrall, Emily Gray, W. Jennings, C. Hay","doi":"10.2139/ssrn.2376136","DOIUrl":"https://doi.org/10.2139/ssrn.2376136","url":null,"abstract":"In this working paper, we outline our thinking on a very large and complex undertaking; namely the assessment of the ways in which the Thatcher governments of the 1980s may have had quite unintended consequences on crime via some of the policies which they set about pursuing for quite separate reasons, but which, nevertheless contributed to amongst other things, the upswing in crime in the 1980s. Our thinking is not heavily informed by theories commonly examined by criminologists; instead our thinking about both the causal antecedents of these governments and their approach to re-engineering society, and the causal antecedents of crime are informed by thinking inspired by historical institutionalist scholars writing within political science, and sociological and economic theories of crime causation. We outline historical institutionalism and identify the ways in which it may be of use to ourselves.","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"37 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-01-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128580621","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":"Hands‐Off or Hands‐On?: Deconstructing the ‘Test‐Case’ of Re G within a Culture of Children's Rights","authors":"T. Tolley","doi":"10.1111/1468-2230.12058","DOIUrl":"https://doi.org/10.1111/1468-2230.12058","url":null,"abstract":"This note challenges the so‐called ‘test‐case’ status of Re G in so far as it attempts to overturn the principle established in Re T that courts should adopt a neutral position when it comes to weighing the merits of different upbringings and the education provided by parents of minority religions. In determining the future upbringing and education of children who had been brought up in a minority religious community, Re G applies a principle of maximising educational opportunity in order to uphold the mother's proposed educational choice and way of life. This note argues that Re G was wrong to do so, should not be regarded as establishing any new principle and that the only relevant principle, both in determining this case and future cases, ought to rest on the psychological well‐being of the child.","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"42 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130689634","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}