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The Illusory Trust Doctrine: Formal or Substantive? 虚幻信托原则:形式的还是实质的?
English & Commonwealth Law eJournal Pub Date : 2020-06-09 DOI: 10.2139/ssrn.3622922
M. Bennett
{"title":"The Illusory Trust Doctrine: Formal or Substantive?","authors":"M. Bennett","doi":"10.2139/ssrn.3622922","DOIUrl":"https://doi.org/10.2139/ssrn.3622922","url":null,"abstract":"\"A document is put before us. Does it or does it not create a trust?\" This article considers the illusory trust doctrine (ITD) and claims that although the ITD has been criticised as doctrinally unfounded and therefore based in substantive, non-legal reasons rather than pre-existing law, there are formal reasons of trusts law to support it. It begins by considering Atiyah and Summers' concepts of form and substance, and then examines how they apply in the context of equity (in general), and then trusts law (in particular). It then briefly considers a number of recent decisions on the ITD: the four cases constituting the Clayton v Clayton litigation in New Zealand, Pugachev and the Cook Islands Court of Appeal and Privy Council decisions in Webb v Webb. Finally, it analyses these ITD decisions using the form and substance distinction, concluding that it is arguable that the ITD is grounded in principles of established trust law, as opposed to purely substantive reasoning.","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"37 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-06-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122303041","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}
引用次数: 0
Clearing away after Brexit? 英国脱欧后清理资产?
English & Commonwealth Law eJournal Pub Date : 2020-05-30 DOI: 10.2139/ssrn.3685103
Dermot Turing
{"title":"Clearing away after Brexit?","authors":"Dermot Turing","doi":"10.2139/ssrn.3685103","DOIUrl":"https://doi.org/10.2139/ssrn.3685103","url":null,"abstract":"A new legal framework for the regulation of non-EU CCPs operating in the European Union came into force in 2020, which empowers ESMA into a supervisory role and allows ESMA to recommend relocation of systemically important CCPs. Brexit will require reclassification of the systemically important CCPs of the UK. This paper analyses from a legal perspective the new framework, the roles and responsibilities of the ECB, ESMA and the European Commission, and the possible outcomes for UK CCPs once Brexit is complete.","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-05-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121853417","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}
引用次数: 0
Postal Delivery of Illegal Consignments into Scotland: Dataset Description 邮寄非法货物进入苏格兰:数据集描述
English & Commonwealth Law eJournal Pub Date : 2020-05-27 DOI: 10.2139/ssrn.3611823
Ben Matthews, S. McVie, C. Dibben, Ben Collier
{"title":"Postal Delivery of Illegal Consignments into Scotland: Dataset Description","authors":"Ben Matthews, S. McVie, C. Dibben, Ben Collier","doi":"10.2139/ssrn.3611823","DOIUrl":"https://doi.org/10.2139/ssrn.3611823","url":null,"abstract":"This report describes a novel dataset of illegal consignments from overseas identified in postal processing centres between April 2011 and January 2016 and intended for delivery to Scotland. The data were provided to researchers at the Scottish Centre for Administrative Data Research by the National Crime Agency. This dataset provides valuable information on drugs entering Scotland via international postal services, a popular delivery method for drugs purchased in online cryptomarkets. The report provides an overview of how the dataset was constructed, its contents, and the technical and governance arrangements involved in accessing this dataset. It also provides descriptive statistics for the variables included in the dataset, comparing this data source with other data on patterns of cryptomarket usage and focusing particularly on the type, size and distribution of different commodities. From this comparison we conclude that the Illegal Consignment dataset has similar characteristics to other datasets on cryptomarket use over the same time span.","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-05-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123673555","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}
引用次数: 2
A Tale of Two Doctrines: Revaluating Bifurcation in Substantive Review before the Supreme Court 两种学说的故事:重新评估最高法院实体审查中的分歧
English & Commonwealth Law eJournal Pub Date : 2020-04-23 DOI: 10.2139/ssrn.3583453
Timothy Sayer, C. Murray
{"title":"A Tale of Two Doctrines: Revaluating Bifurcation in Substantive Review before the Supreme Court","authors":"Timothy Sayer, C. Murray","doi":"10.2139/ssrn.3583453","DOIUrl":"https://doi.org/10.2139/ssrn.3583453","url":null,"abstract":"Debates over bifurcation in substantive review persist; should Wednesbury review subsist alongside a proportionality-based model, or should substantive review depend solely upon proportionality? Drawing on an analysis of UK Supreme Court decisions between 2014 and 2018, we argue that the academic debate and much recent jurisprudence misconstrue substantive review. Both proportionality and Wednesbury display their own internal (“intra-doctrinal”) bifurcation between judge-centric and deferential approaches. Although proportionality’s application under the Human Rights Act 1998 has generated culture of justification in rights cases, fixation on the test’s rights/aims balancing aspects has embroiled judges in value adjudication. Faced with preferring either legal or policy aims, the Court has at times fluctuated between strong and weak oversight. Traditional Wednesbury review, while methodologically distinct, can also swing between highly deferential reasonableness review and more robust review drawing, for example, on statutory purpose. Substantive review thus currently risks contradictory pathologies; deploying legal trumps to preclude political decision making and permitting clear policy failures. These pathologies stem from UK public law’s inadequate engagement with substantive decision making. We therefore re-evaluate functionalist constitutionalism, advancing an active functionalist model which urges public lawyers, outwith instances of illegality, to maximise institutional effectiveness. By prioritising legitimacy as an organising principle for judicial review, this approach sustains political decision making within the bounds of a liberal democratic order.","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-04-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133080816","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}
引用次数: 0
Case Note: Enforceability of Agreements to Mediate in English Law 案例说明:英国法律中调解协议的可执行性
English & Commonwealth Law eJournal Pub Date : 2020-04-16 DOI: 10.2139/ssrn.3748236
S. Chong, N. Alexander
{"title":"Case Note: Enforceability of Agreements to Mediate in English Law","authors":"S. Chong, N. Alexander","doi":"10.2139/ssrn.3748236","DOIUrl":"https://doi.org/10.2139/ssrn.3748236","url":null,"abstract":"Are agreements to mediate enforceable? \u0000 \u0000The short (and incomplete) answer is: yes, they may be provided they are drafted appropriately. In this post we review a recent English judgment which sets outs guidelines for the enforceability of agreements to mediate under English law. \u0000 \u0000In August 2019, the Technology and Construction Court of the Queen’s Bench Division in England made an important ruling in regard to the enforceability of agreements to mediate as a precondition to court or arbitration proceedings. Ohpen Operations UK Ltd v Invesco Fund Managers Ltd [2019] EWHC 2246 (TCC) provides guidance for how and when parties may rely on an agreement to mediate.","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"78 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-04-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126315110","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}
引用次数: 0
The Financial Settlement for the Withdrawal of the United Kingdom from the European Union 英国退出欧盟的财政解决方案
English & Commonwealth Law eJournal Pub Date : 2020-03-30 DOI: 10.2139/ssrn.3562717
Michele Chang
{"title":"The Financial Settlement for the Withdrawal of the United Kingdom from the European Union","authors":"Michele Chang","doi":"10.2139/ssrn.3562717","DOIUrl":"https://doi.org/10.2139/ssrn.3562717","url":null,"abstract":"this paper introduces the financial arrangements related to the withdrawal of the United Kingdom from the European Union. It does so through a contextual analysis of the provisions of the Withdrawal Agreement, of the priorities and of the path of the negotiations. After that, it focuses on the post-Brexit multi-annual financial framework and how resources will be allocated in order to ensure that the gap left in the EU finances by the UK leaving the block will be filled. There are, however, ongoing issues that need to be solved before the EU can move forward: the future contribution of the UK to the EU budget, that derives from previous commitments that the UK undertook, and the ambitions of the EU institutions in raising the bar of the financial capacity of the EU in the coming years. The post-Brexit negotiations on the multi-annual financial framework remind us of the challenges the EU will face in filling the financial gap resulting from the UK’s withdrawal and of the hard choices that must be made not only about the level of EU spending but also the content.","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"42 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-03-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115576173","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}
引用次数: 0
Brexit – Populist Reaction to the 2008 Speculative Bubble Bursting? 英国脱欧——民粹主义对2008年投机泡沫破裂的反应?
English & Commonwealth Law eJournal Pub Date : 2020-02-26 DOI: 10.2139/ssrn.3553434
E. Mackaay
{"title":"Brexit – Populist Reaction to the 2008 Speculative Bubble Bursting?","authors":"E. Mackaay","doi":"10.2139/ssrn.3553434","DOIUrl":"https://doi.org/10.2139/ssrn.3553434","url":null,"abstract":"As evidence accumulates about the harmful effects Brexit is likely to cause to the British economy, one may wonder what made a majority of Brits vote to leave the EU. Rather than treat it as a fit of ill temper or an unfortunate accident, this paper explores the idea that it should be seen as a populist reaction triggered by the burst of the speculative bubble in 2008-2009 and the subsequent economic mayhem. To make the case, the paper looks at (1) what populism is, (2) how it can arise as part of long-term economic waves and (3) what precisely happened in Britain before and after 2009.","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-02-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114802363","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}
引用次数: 0
The Impact of Employers’ Liability on English Coalmining Fatalities, 1863-1966 雇主责任对英国煤矿事故的影响，1863-1966
English & Commonwealth Law eJournal Pub Date : 2020-01-22 DOI: 10.2139/ssrn.3523453
C. Veljanovski
{"title":"The Impact of Employers’ Liability on English Coalmining Fatalities, 1863-1966","authors":"C. Veljanovski","doi":"10.2139/ssrn.3523453","DOIUrl":"https://doi.org/10.2139/ssrn.3523453","url":null,"abstract":"This paper examines the economic basis of nineteenth century common law of employers’ liability, and the impact of statutory reforms such as the Employers’ Liability Act 1880, Workmen’s Compensation Act 1897 and no-fault liability under the Industrial Injuries Scheme that accompanied the nationalisation of the UK coal mining industry on English regional and British coalmining fatality rates over the period 1863 to 1966. The empirical and econometric analysis indicates that the 1880 had little impact but there is some indication that nationalisation of the coalmining industry may have reduced fatality rates.","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"124 6","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-01-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"113945760","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}
引用次数: 0
Consultation Paper on the Builders Lien Act 建筑商留置权法案咨询文件
English & Commonwealth Law eJournal Pub Date : 2019-09-30 DOI: 10.2139/ssrn.3516373
British Columbia Law Institute
{"title":"Consultation Paper on the Builders Lien Act","authors":"British Columbia Law Institute","doi":"10.2139/ssrn.3516373","DOIUrl":"https://doi.org/10.2139/ssrn.3516373","url":null,"abstract":"The current version of the Builders Lien Act has been in force for slightly more than 20 years. Given this length of time, a review of the terms of this important Act and its operation is warranted. BCLI launched the Builders Lien Act Reform Project in response to an invitation from the Ministry of Attorney General to take a critical look at the Act.<br><br>BCLI has published this Consultation Paper on the Builders Lien Act to obtain the views of stakeholders on reform of the Act and feedback on specific proposals for changes to the Act developed by the Project Committee. We call these proposals tentative recommendations because they are not finalized and may be modified or abandoned in light of the responses received. With the benefit of the responses to the consultation paper, we will form our final recommendations on reform of the Builders Lien Act and publish them in a subsequent report that will be freely available in digital form to the public.","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"60 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126769479","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}
引用次数: 0
Interpersonal Trust and Contracts Theory Redux 人际信任与契约理论[j]
English & Commonwealth Law eJournal Pub Date : 2019-07-31 DOI: 10.2139/ssrn.3429442
Leon Anidjar
{"title":"Interpersonal Trust and Contracts Theory Redux","authors":"Leon Anidjar","doi":"10.2139/ssrn.3429442","DOIUrl":"https://doi.org/10.2139/ssrn.3429442","url":null,"abstract":"The proposition that mutual loyalty facilities cooperation required for contract performance is a truism, almost a cliché. Jurists have extensively debated the role of honesty, collaboration, and reciprocity for supporting decent contractual relations. Surprisingly, contract law scholars haven’t developed a detailed account of interpersonal trust yet in a one-shot contract that is outside the frame of relational transactions, or the common understanding of fiduciary relations. Therefore, This Article is devoted to exploring the fundamental perceptions of moral, economic, and behavioral interpersonal trust as a basis for establishing a new framework on the role of faith in contract law and theory. While theoreticians acknowledge the significance of interpersonal trust as a core component of any contract theory, they fail to develop a comprehensive understanding of such concept and how it is integrated into a descriptive approach of contract law. I show that consolidating the studies of interpersonal trust in the fundamental assumptions of promissory, efficiency, and fairness theories may fill this void and resolve some difficulties regarding their analytical force of different contract doctrines. The integrative analysis of interpersonal trust role in contract theories exemplify the different views on pluralism conception in contract law and provide a better justification for various transactions between a variety of contractors’ types in different legal systems.","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"56 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-07-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125452598","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}
引用次数: 0
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