Common law world review最新文献

Exit strategy for solvent companies under Indian insolvency law 印度破产法规定的有偿付能力公司的退出战略

Common law world review Pub Date : 2024-05-06 DOI: 10.1177/14737795241250358

S. Narayan, Aryaman Sinha

引用次数: 0

Everlasting divorce? The temporal scope of the UK Withdrawal Agreement 永久离婚？英国退欧协议的时间范围

Common law world review Pub Date : 2024-04-23 DOI: 10.1177/14737795241248472

Tomáš Buchta

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Ensuring the reliability of evidence in the New Zealand criminal courts: The admissibility of forensic science 确保新西兰刑事法庭证据的可靠性：法医学的可采性

Common law world review Pub Date : 2024-03-28 DOI: 10.1177/14737795241237799

Carrie Leonetti

{"title":"Ensuring the reliability of evidence in the New Zealand criminal courts: The admissibility of forensic science","authors":"Carrie Leonetti","doi":"10.1177/14737795241237799","DOIUrl":"https://doi.org/10.1177/14737795241237799","url":null,"abstract":"This article presents a systematic and critical assessment of the reliability of forensic science in New Zealand. It documents the types of forensic-science being offered in criminal cases, the party presenting the evidence, the experts’ affiliations, how often there are challenges to the admissibility of the expert evidence and their timing in the proceedings, how often experts rely upon the uniqueness assumption, and how often experts testify to an individualised identification or ‘match’ of a source of forensic evidence. It finds that several of the common forensic disciplines in the criminal justice system in New Zealand have been the subject of critique and criticism internationally, the most common source of expert evidence was presented by the prosecution and provided by institutional police laboratories, and in most cases the forensic expert testified either to the uniqueness assumption or to an individualised match determination. It concludes that the New Zealand Parliament should amend the Evidence Act 2006 to require a demonstration of foundational validity and as-applied reliability as a precondition to the admissibility of any purported scientific evidence.","PeriodicalId":87174,"journal":{"name":"Common law world review","volume":"22 7","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-03-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140372131","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

Financial distressed companies and directors’ obligation to consider creditors’ interests: An Anglo-Australian comparison of the obligation's trigger and application 陷入财务困境的公司和董事考虑债权人利益的义务：英澳两国对该义务的触发和适用的比较

Common law world review Pub Date : 2024-02-11 DOI: 10.1177/14737795241231987

Andrew Keay, Sulette Lombard

{"title":"Financial distressed companies and directors’ obligation to consider creditors’ interests: An Anglo-Australian comparison of the obligation's trigger and application","authors":"Andrew Keay, Sulette Lombard","doi":"10.1177/14737795241231987","DOIUrl":"https://doi.org/10.1177/14737795241231987","url":null,"abstract":"Many common law jurisdictions recognise that directors have an obligation to consider the interests of company creditors when the company is experiencing financial distress. Despite numerous cases attempting to crystalise legal principles related to this obligation and significant academic commentary on the topic, the parameters of the obligation remain uncertain. This paper provides an analytical comparison of the latest case law in Australia and the UK concerning the two most important issues that exist in relation to this obligation, namely when is the obligation triggered and what do directors have to do to ensure that they comply with the obligation. We found that the UK courts appear to be adopting a much more restrictive approach regarding the trigger for the obligation, whereas the obligation may arise much earlier in Australia, due to the liberal framing of the trigger. An analysis of case law also revealed that the weight attached to the interests of creditors once the obligation is triggered seems to be much more significant in the UK, compared to Australia. This analysis is important as there is no doubt that courts in other common law jurisdictions, and particularly in the Commonwealth, will examine the Australian and UK jurisprudence in making their decisions in relation to any claim that directors have failed to comply with the obligation to consider the interests of creditors.","PeriodicalId":87174,"journal":{"name":"Common law world review","volume":"114 3","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-02-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139785087","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

Financial distressed companies and directors’ obligation to consider creditors’ interests: An Anglo-Australian comparison of the obligation's trigger and application 陷入财务困境的公司和董事考虑债权人利益的义务：英澳两国对该义务的触发和适用的比较

Common law world review Pub Date : 2024-02-11 DOI: 10.1177/14737795241231987

Andrew Keay, Sulette Lombard

{"title":"Financial distressed companies and directors’ obligation to consider creditors’ interests: An Anglo-Australian comparison of the obligation's trigger and application","authors":"Andrew Keay, Sulette Lombard","doi":"10.1177/14737795241231987","DOIUrl":"https://doi.org/10.1177/14737795241231987","url":null,"abstract":"Many common law jurisdictions recognise that directors have an obligation to consider the interests of company creditors when the company is experiencing financial distress. Despite numerous cases attempting to crystalise legal principles related to this obligation and significant academic commentary on the topic, the parameters of the obligation remain uncertain. This paper provides an analytical comparison of the latest case law in Australia and the UK concerning the two most important issues that exist in relation to this obligation, namely when is the obligation triggered and what do directors have to do to ensure that they comply with the obligation. We found that the UK courts appear to be adopting a much more restrictive approach regarding the trigger for the obligation, whereas the obligation may arise much earlier in Australia, due to the liberal framing of the trigger. An analysis of case law also revealed that the weight attached to the interests of creditors once the obligation is triggered seems to be much more significant in the UK, compared to Australia. This analysis is important as there is no doubt that courts in other common law jurisdictions, and particularly in the Commonwealth, will examine the Australian and UK jurisprudence in making their decisions in relation to any claim that directors have failed to comply with the obligation to consider the interests of creditors.","PeriodicalId":87174,"journal":{"name":"Common law world review","volume":"45 37","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-02-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139844896","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

Corporate ownership and insolvency law: An evidence from India 公司所有权与破产法：印度的证据

Common law world review Pub Date : 2023-12-12 DOI: 10.1177/14737795231217264

Shakti Deb, I. Dube

{"title":"Corporate ownership and insolvency law: An evidence from India","authors":"Shakti Deb, I. Dube","doi":"10.1177/14737795231217264","DOIUrl":"https://doi.org/10.1177/14737795231217264","url":null,"abstract":"Reorganization or revival of the financially distressed corporate person is the prime objective of insolvency law. To rationalize the said objective, the insolvency law in India— Insolvency and Bankruptcy Code 2016 has adopted the manager-displacement model of the insolvency regime. It has become progressively evident from existing literature that the development of corporate governance mechanisms may have imperative implications on the aptness of a nation's legal system and its accomplishments. The existing evolutionary theory asserts that corporate bankruptcy and corporate governance structure complement each other. The historical account of corporate ownership structure in India represents a predominance of concentrated ownership patterns. Through the perspective of the existing evolutionary theory of corporate insolvency, the paper analyzes the corporate ownership structure and development of corporate insolvency law in India. The article also explores whether corporate ownership structure as a corporate governance mechanism can explain the progression of the insolvency regime in India. The findings of this paper would be of significance for jurisdictions that are considering reforms within their existing corporate insolvency law.","PeriodicalId":87174,"journal":{"name":"Common law world review","volume":"11 12","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-12-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139008732","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

On the meaning of bankruptcy: ‘Old–new’ lexicon in corporate insolvency law in the Commonwealth Caribbean 论破产的含义:英联邦加勒比地区公司破产法中的“新旧”词汇

Common law world review Pub Date : 2023-11-09 DOI: 10.1177/14737795231213379

Celia Blake

{"title":"On the meaning of <i>bankruptcy</i>: ‘Old–new’ lexicon in corporate insolvency law in the Commonwealth Caribbean","authors":"Celia Blake","doi":"10.1177/14737795231213379","DOIUrl":"https://doi.org/10.1177/14737795231213379","url":null,"abstract":"Several jurisdictions in the Commonwealth Caribbean have undertaken reform and modernisation of their insolvency legislation. The dominant model for the new enactments has been Canada's federal statute, the Bankruptcy and Insolvency Act, RSC 1985, which has already been transplanted into six jurisdictions of the region. The transplantation has introduced lexicon which, while part of the vocabulary of the old statutes for personal insolvency, has, traditionally, been unfamiliar to the region's corporate insolvency law, hence the phrase, ‘“old–new” lexicon’, in the title. This article examines the meanings of some of this lexicon, particularly ‘bankruptcy’ and cognate terms, including ‘acts of bankruptcy’. The examination extends to the term ‘receiving order’, operationally related to bankruptcy. Legal interpretation of the terms is enriched in the discussion by insights from linguistics. While showing that the importation of these terms into the region's corporate insolvency law is semantically problematic, the article elucidates the signification of the terms. It points out that some of the ‘old–new’ terms may tend to reduce the efficacy in the contemplated lay administration of the statutes. It also warns that the ‘old–new’ lexicon threatens to undermine key goals of the reform exercise, suggesting a need for deeper scrutiny in the transplantation process.","PeriodicalId":87174,"journal":{"name":"Common law world review","volume":" 3","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-11-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135290863","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

How should English law deal with deceptive sex? 英国法律应如何处理欺骗性行为?

Common law world review Pub Date : 2023-11-09 DOI: 10.1177/14737795231210320

Andrew Dyer

引用次数: 0

The duty to remove asylum seekers under the Illegal Migration Act 2023: Is the government's plan to ‘Stop the Boats’ now doomed to failure? 根据《2023年非法移民法案》驱逐寻求庇护者的责任:政府的“阻止船只”计划现在注定要失败吗?

Common law world review Pub Date : 2023-10-12 DOI: 10.1177/14737795231206156

Jennifer Morgan, Lizzy Willmington

{"title":"The duty to remove asylum seekers under the Illegal Migration Act 2023: Is the government's plan to ‘Stop the Boats’ now doomed to failure?","authors":"Jennifer Morgan, Lizzy Willmington","doi":"10.1177/14737795231206156","DOIUrl":"https://doi.org/10.1177/14737795231206156","url":null,"abstract":"With ‘Stop the Boats’ high on the government agenda, legislation has come into force to try and uphold this pledge. However, the methods the government is deploying to bring about this stated aim are highly controversial and potentially unlawful. In the latest government attempt to halt the crossings, the Illegal Migration Act 2023's central provision places a duty on the Home Secretary to remove those who arrive in the UK by irregular means ‘as soon as reasonably practicable’. However, the section of the Act that places this duty on the Home Secretary has not yet come into force. This is largely because the Home Secretary does not currently have a lawful agreement with any third country to remove people to. The so-called ‘Rwanda asylum deal’ that the duty in the Act relies upon to operate was ruled unlawful by the Court of Appeal in June 2023. This article will consider the enforceability of the duty outlined at s.1(2)(a) of the Illegal Migration Act 2023 in light of developments in the ongoing litigation regarding the lawfulness of the UK government's Rwanda asylum deal and the broader motivation and implications of pursuing such a policy to address the so-called ‘small boats crisis’.","PeriodicalId":87174,"journal":{"name":"Common law world review","volume":"269 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136014301","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

Sub-constitutionally repairing the United States Supreme Court 违反宪法修复美国最高法院

Common law world review Pub Date : 2023-10-05 DOI: 10.1177/14737795231205324

Amal Sethi

{"title":"Sub-constitutionally repairing the United States Supreme Court","authors":"Amal Sethi","doi":"10.1177/14737795231205324","DOIUrl":"https://doi.org/10.1177/14737795231205324","url":null,"abstract":"In December 2021, the Biden Commission — constituted in response to the politics and partisanship surrounding the Supreme Court — released its report analysing proposals for Supreme Court reform. The commission found most reform proposals unrealistic due to the ‘nearly impossible-to-amend American constitution’ or the proposals creating new problems. Given the rigidity of the American constitution, any realistic reform must be implemented through sub-constitutional means. In contemporary discourse, investigations into sub-constitutional reforms have been limited. In most cases, proposals for sub-constitutional reform are merely creative strategies to bypass a constitutional amendment. This only opens a pandora's box of new problems and hinders these proposals’ effective realisation. Sub-constitutional reform must be explored on its own merits in light of the legal landscape. Consequently, this article demonstrates how meaningful reforms can be achieved sub-constitutionally. Through sub-constitutional means, this article's reform proposal seeks to try and ensure that consensus candidates are nominated/appointed to the Supreme Court. This, it contends, can address many problems facing the court today. In propounding its reform proposal, this article hopes to illuminate the broader debate on the reform of apex courts and provide takeaways for jurisdictions facing predicaments similar to America.","PeriodicalId":87174,"journal":{"name":"Common law world review","volume":"2011 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134975307","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