Showing papers in "Cambridge Law Journal in 1998"

The Doctrinal Basis of The Rights of Company Shareholders

Abstract: The concept of ownership is a complex, powerful and controversial idea. In law it explains, justifies and gives moral force to a host of rights and duties as well as serving to legitimate the allocation of wealth and privilege. The influence of this idea is, furthermore, everywhere embodied in the law. In company law, legal and economic conceptions have both rested on and have been shaped by the normative implications of ownership. Historically, ownership was the principal explanation and justification for the central role of shareholders in corporate affairs. As owners, shareholders were entitled to control the management of the company and to the exclusive benefit of the company's activities. Ownership also served to legitimate the corporate form itself. So long as it was owned by individuals the economic and political power of the company was both benign and a bulwark against the intrusion of the state.

Argument by Analogy In Europian Law

Abstract: ARGUMENT by analogy is one of the oldest methods of decision making. Whenever the similarity between two situations induces someone to decide one case like another, an analogy is drawn. Argument by analogy also forms an integral part of legal reasoning. Arguably, every legal tradition employs some version of it to justify judicial decisions. European law has only just started to develop its own distinct jurisprudence. As the various judicial systems present in the European Union struggle for recognition of their legal heritage, the way in which arguments by analogy will be used on an European level is likely to combine different approaches.

Ultra Vires and the Foundations of Judicial Review

Abstract: There is a growing literature concerning the role of the ultra vires doctrine and its place within administrative law. For some the doctrine is the central principle of administrative law, without which judicial intervention would rest on uncertain foundations. For others, it constitutes at best a harmless fiction, which is incapable of explaining all instances of judicial intervention, and at worst a device which allows the judiciary to conceal the real justifications for developments in judicial review. Christopher Forsyth falls into the former camp. He has written a vigorous defence of the ultra vires principle, contending that “it remains vital to the developed law of judicial review”. The purpose of this article is to contribute to the debate on this issue by putting the opposing view. The article will be divided into four sections.

The Regulation and Recognition of Foreign Corporations: Responses to the “Delaware Syndrome”

Abstract: It is beyond dispute now that corporations have replaced states as the most important makers of waves in the world's economy. It is also firmly established that with the increasing globalisation of that economy corporations operate in many cases far beyond the borders of the country that presided over their birth. A company which crosses frontiers to operate outside its original jurisdiction can bring problems of several different kinds in its wake. A court dealing with such a company may have to ascertain which law is, or should be, the law which regulates its affairs. The company may have internal disorders or may be experiencing difficulties in its external relationships. In seeking to grapple with these problems the jurisdictions of the world are broadly divided into two camps. There are those which look to the law of the place of the company's incorporation to govern these matters, and those which look to the law of the place of the central administration of the company as being the correct law to be supreme in this field. Some jurisdictions take a variety of half-way positions in this debate.

The principle of equality in the community context: p, grant, kalanke and marschall : four uneasy bedfellows?

Abstract: The importance of the principle of equality to the legal order of the European Union has been underlined by four important but contradictory cases: P v. S; Grant v. South West Trains; Kalanke and Marschall. These cases demonstrate various attempts by the Court to come to terms with what is meant by equality and to decide what protection should be provided by Community law. These, and earlier cases, offer various perspectives on the principle of equality. First, equality can be seen as a rallying cry, a political slogan but little else. Second, equality is a societal goal, a general aspirational principle of citizenship which may serve to inform specific legislative provisions, in particular non-discrimination, but otherwise has no legal force. Third, equality is a general principle of law which is designed to limit the activities of the Community legislature. Fourth, and perhaps most radically, equality is a free-standing, fundamental right enforceable against the Member States, like the equal protection of laws found in the Fourteenth Amendment of the US Constitution, and even against "private" employers. While it is possible to see elements of the first three perspectives in the Court's jurisprudence, the Court has not embraced the fourth. The article examines these developments and considers how the principles of equality and non-discrimination might be developed in the future.

“At the Plantiff's Expense”: Quantifying Restitutionary Relief

Abstract: THE issue addressed in this article pertains to the proper measure of relief to which Pam is entitled in an action in unjust enrichment. There is no doubting her ability to establish the constituent elements of that action. Dave was enriched by the receipt of an incontrovertible benefit because he realised a financial gain from the services rendered. That enrichment was derived at Pam's expense (at least in part) because she paid for the repairs. And Dave's enrichment was unjust because Pam's intention in rendering the benefit was vitiated by her mistaken belief that the car was hers. However, it is unclear whether she should be awarded £1000 (reflecting Dave's gain) or £250 (reflecting her loss). The specific question that arises is whether the second element of the principle of unjust enrichment (“at the plaintiff's expense”) merely determines Pam's standing to sue or whether it also limits her measure of relief. It is suggested, contrary to a growing body of opinion, that the latter alternative is preferable.

Rescuing remedialism in unjust enrichment law: why remedies are right

Abstract: The primary focus in current analyses of English unjust enrichment law is upon restitutionary rights, not remedies. There are a number of explanations for this; some pragmatic, some historical, some linguistic, some theoretical. The author argues that none of these, when closely examined, justifies a failure to develop a separate remedial agenda for the subject, such as exists in other private law subjects like contract and tort. Indeed, there are powerful arguments in favour of this approach. The existing conceptual apparatus of unjust enrichment law (based on causes of action and defences) is ill-equipped to cope with quantification, valuation and choice of remedy issues. At a theoretical level, the traditional distinction drawn between primary and secondary rights (remedies) is as valid in unjust enrichment law as it is in contract and tort. A separate remedial focus contributes significantly to our understanding of restitutionary rights and has significant organisational advantages. Furthermore, the concerns expressed about the Canadian “remedial” constructive trust concept are misplaced in so far as they imply that remedial approaches are necessarily uncertain. The development of appropriate remedial concepts ought, if conducted in a disciplined way, to increase the coherence and predictability of outcomes, not detract from the achievement of these aims.

The legal status of central bank investments under english law

Abstract: Central banks have enormous sums of money in various forms of investments. When claims are made either against the banks themselves, or against other governmental bodies, issues arise as to whether these assets can be attached, and made available to satisfy judgments. The article explains how central banks are treated in English law. It explains the special provision made in respect of their assets under the State Immunity Act 1978. There is wide immunity from attachment, though questions can arise as to the ownership of such assets. The UK legislation is, in some respects, wider than its counterpart, the US Foreign Sovereign Immunities Act 1976. Recent case law is described in which the English courts have recognised that the public responsibilities of central banks have to be taken account of when determining the extent of their liability to attachment.

A broader construction of the EC treaty provisions on citizenship

Abstract: IN Martinez Sala v. Freistaat Bayern (Case C-85/96, judgment of 12 May 1998, not yet reported), the Court of Justice has taken a step towards the clarification of the real force of the EC Treaty provisions on citizenship. Mrs. Martinez Sala was a Spanish national lawfully resident in Germany since 1968 and employed there at intervals between 1976 and 1989. In 1993, she applied to the State of Bavaria for a child-raising allowance, a benefit granted to all residents in Germany who had a dependent child in their care and were either unemployed or had no full-time employment. Her application was rejected on the grounds that at the time that she applied for the benefit she was not in possession of a residence permit, a requirement that had to be met by all non-German nationals. The central issue in the case was, therefore, whether Mrs. Martinez Sala had been discriminated against.

Liability for Negligently Inflicted Psychiatric Harm: Justifications and Boundaries

Abstract: The devastating impact that psychiatric illness can have on people's lives is beyond dispute. It would be absurd to contend that such harm is somehow intrinsically less serious than physical injury; indeed, over many years, medical research has pointed to the artificiality of characterising it as lacking physical manifestations. Its destructive potential is brought into sharper focus as mental attributes become ever more integral to everyday functioning. Yet, to this day, neither popular nor judicial opinion is noticeably receptive to a cause of action based on proof of a “recognised psychiatric disorder”, which is still often trivialised by the label “nervous shock”. This negative attitude is most apparent when claimants are not, or are not regarded as, the direct victims of someone else's conduct. The very notion of compensating people whose suffering derives from their reaction to the injuring of others often evokes surprise, indignation and disdain.

Reining in the bolam test

Abstract: Bolitho v. City and Hackney Health Authority [1997] 3 W.L.R. 1151 is a landmark authority on medical negligence, chiefly in respect of the standard of care.

Constructive notice and knowing receipt: an economic analysis

Abstract: This article attempts an economic analysis of the policy formulated in Manchester Trust v Furness that constructive notice should not be made the basis of liability arising out of commercial transactions. It concentrates on instances of equitable liability for ”knowing receipt“ where the defendant is required to give restitution of funds which it received in breach of fiduciary duty. The article investigates the social costs of imposing a duty of inquiry on a person receiving misappropriated money in a commercial transaction. It concludes that there are strong economic reasons why a commercial recipient of money should not owe the same rigorous duties of inquiry commonly imposed in conveyancing transactions. However, once the standard of inquiry is adjusted to take into the exigencies of commercial dealings, there are no compelling economic reasons why constructive notice should be rejected as a possible basis of liability in knowing receipt.

Co-Owners' Rights to Occupy Trust Land

Abstract: Few lawyers would dissent from the view, voiced by the Law Commission in 1989 in their Report on Trusts of Land, that the trust for sale mechanism, introduced in 1926 to regulate the co-ownership of land, had for long ceased to be appropriate to the conditions of modern home ownership Every conveyancing practitioner will have experienced the difficulty of explaining to clients about to marry that the matrimonial home which they were so eagerly looking forward to occupying would by law be owned by them as trustees, subject to an immediate binding trust for sale No doubt in practice discretion played the better part of valour Soon after qualifying, solicitors learned to abandon any attempt to explore the mysteries of such an apparent absurdity

Reform of Limitation of Actions: The Quest for Sound Policy

Abstract: T HE English Law Commission's Consultation Paper “Limitation of Actions” is a long study of a complex subject. The subject has produced a large and detailed literature. Reform is necessary. The occasion of a Consultation Paper should stimulate both substantive and procedural lawyers to think deeply about how this subject, which is truly the gateway to justice, might be re-built.

The Principle of Benefit and Burden

Abstract: OVER the years there seem to have been a number of cases based ultimately on a general principle that a person who takes the benefit of an arrangement will be bound by any associated burden contained in it despite the fact that he was not a party to the original arrangement. Potentially the most extreme application of this principle, and the most controversial, has been in Halsall v. Brizell and cases which followed it. The idea introduced in Halsall v. Brizell and later developed by Megarry V.-C. in Tito v. Waddell (No. 2) is that a person may, in appropriate circumstances, be bound by an obligation which is imposed by the same transaction that grants a benefit of which he wishes to take advantage but is not a condition of that benefit. Megarry V.-C. referred to this as an application of a pure principle of benefit and burden to contrast the situation with the application of a principle of benefit and burden in the case of a conditional or qualified right. In this article the term “pure principle” will be used to refer to the application of a principle of benefit and burden in Halsall v. Brizell and the cases which have followed it. Since the decision in Halsall v. Brizell, there has been controversy as to this most recent application of a principle of benefit and burden, the perceived problems being the lack of clarity and certainty as to the necessary requirements for its application and its potentially far-reaching effects. Such problems clearly influenced the House of Lords when deciding the case of Rhone v. Stephens and, since that decision, there has been some doubt as to whether the principle of benefit and burden can have the effect that has been suggested. A principle whereby a person can be forced to comply with obligations that would not otherwise bind him has undoubted attractions but will be unacceptable if it directly contradicts clearly established rules which prevent obligations binding non-contracting parties.

Caesarean sections and the right of autonomy

Abstract: CYNICS were unimpressed by the proclamation of the Court of Appeal in Re MB (Caesarean section) [1997] 2 FCR 541 (noted [1997] CLJ 509) that the law protects a pregnant woman's right to autonomy and bodily integrity The Court of Appeal had held that it would be unlawful for a doctor to perform a Caesarean section on a competent woman if she refused to consent to the operation–even if the lives of the woman and unborn child would be endangered if the operation was not performed Cynics argued that the courts would always circumvent these fine-sounding principles by finding the woman incompetent to make the decision, as they did in Re MB itself However, subsequently in St George's Healthcare NHS Trust v S [1998] 3 All ER 673 the Court of Appeal held that a woman was competent and that a doctor acted unlawfully in carrying out a Caesarean section on her The NHS Trust and doctors were therefore potentially liable in tort for trespass and perhaps even guilty of criminal offences

Theory of International Law at the Threshold of the 21st Century. Essays in Honour of Krzysztof Skubiszewski . Edited By Jerzy Makarczyk. [The Hague, London, Boston: Kluwer Law International. 1996. 978 and (Index) 25pp. Hardback £203-00 net. ISBN 90–11-0296-5.]

Abstract: A solution to get the problem off, have you found it? Really? What kind of solution do you resolve the problem? From what sources? Well, there are so many questions that we utter every day. No matter how you will get the solution, it will mean better. You can take the reference from some books. And the theory of international law at the threshold of the 21st century is one book that we really recommend you to read, to get more solutions in solving this problem.

THE RIGHTS OF EVERY PERSON IN ACTUAL OCCUPATION: AN ENQUIRY INTO SECTION 70(1)(g) OF THE LAND REGISTRATION ACT 1925

Abstract: The writer considers the scope and application of the present statutory provision, and discusses possible alternative approaches. She begins by examining the meaning of the word “rights”, and examines the difficulties and inconsistencies in the way the word has been interpreted by the courts. She then considers possible statutory amendment, from abolition, or restriction, to, more controversially, an extension to encompass all rights related to the land, whether personal or proprietary, other than those requiring personal skill or confidence. She suggests that such a widening of the scope of the provision would be conducive to certainty, fairness and comprehensiveness. The second part of the article examines the concept of occupation, and traces the judicial approaches to this requirement. Possible statutory amendment is then considered. The article concludes that the scope of the section should be widened, but that the qualifying occupation should be apparent as well as actual.

Confessions as Proof of Innocence

Abstract: In recent years, a number of criminal cases have been reported in which defendants have sought to rely upon the confessions of their co-defendants as proof of their own innocence. The co-defendant may perhaps have admitted that he alone was responsible, or that he and some third party were responsible. His confession may have been made to the police or to some other person. In one case, the father of a girl charged with robbery covertly tape-recorded admissions made to him by one of her two co-defendants. These admissions were damning to that co-defendant, but tended to exonerate the girl.

The Lockerbie case continues

Abstract: THE background to the Cases concerning Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Jurisdiction and Admissibility) 1998 I.C.J. Rep. is well known; in 1988 Pan Am Flight 103 was blown up over Scotland and 270 people were killed. The USA and the UK accused two Libyans of the bombing and sought their extradition. Libya argued on the basis of the Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation that it was not bound to extradite its own nationals but could try them in its own courts, if appropriate. Libya took the cases to the International Court of Justice. It failed in its requests for provisional measures (see Lowe, (1992) 51 C.L.J. 408), but continued with its claims that the USA and the UK should respect its rights under the Montreal Convention and not put pressure on it to surrender the accused. The respondents made preliminary objections to the jurisdiction of the Court and to the admissibility of the application.

Human rights and taxpayers

Abstract: Is it really worth having all this fuss and bother about the Human Rights Bill? Over the years the Convention has been interpreted to require United Kingdom courts to change their practices in various ways at the personal level, but what about protecting a person from an unjustified demand for tax? Suppose that the Inland Revenue demands tax from you which the courts later determine to be unlawful because the regulation under which the demand was made was not valid You were not a party to that litigation but you are clearly within the ambit of the decision supplied by the courts The Inland Revenue then persuades Parliament to deprive you of the benefit of the decision by retroactive legislation, although leaving the actual party to the litigation with the fruits of that enterprise Is this the stuff on which the judges at Strasbourg will rush to protect the taxpayer from the State? The answer sadly is no — these judges are not going to risk embarrassing the contracting States by making rights bite where that would be expensive: National Provincial Building Society and others v United Kingdom [1997] STC 1466 Of course these judges may fear that contracting States would reduce the powers of the court were they do so such a thing; such a fear would not be irrational since the German and UK Governments proposed that direct tax matters should be removed from the European Court of Justice in the sessions leading to the Treaty of Amsterdam Perhaps a supra-national body is right to be cautious, but what should our own courts do? Once the Convention is incorporated into our domestic law, will our own judges feel a little more strongly about the matter and perhaps grant a declaration that the legislation is incompatible with the Convention? If they have a right to be incensed about the way in which Parliament protects the Revenue at the expense (literally) of the taxpayer, will they do something or will they just couch like lions under the throne of Parliamentary Sovereignty?