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Showing papers in "Modern Law Review in 1993"


Journal ArticleDOI
TL;DR: In this article, a new conceptual analysis of sovereignty and statehood, moving forward from the juristic inheritance, is presented, and some consequences of a belief in sovereign statehood are discussed.
Abstract: A different view would be that sovereignty and sovereign states, and the inexorable linkage of law with sovereignty and the state, have been but the passing phenomena of a few centuries that their passing is by no means regrettable. This will be the view stated in the present lecture. The order of presentation will be through consideration of some connected points. The first one is to locate sovereignty and the theory of sovereign statehood in the setting of legal theory, showing how developments in European Community law raise difficulties for some standard positions in legal theory. The second point is to proceed into some fresh conceptual analysis of sovereignty and statehood, moving forward from the juristic inheritance. The third is to discuss some consequences of a belief in Sovereign Statehood. The difference between the predominantly legal and the predominantly political conception of sovereignty now appears.

286 citations



Journal ArticleDOI
TL;DR: In this paper, the authors present a workshop on Alternative Dispute Resolution: Civil Justice and its Alternatives, which deals more generally with those devices whether judicial or not that have emerged as alternatives to the ordinary or traditional types of procedures.
Abstract: I shall start with a few words about the topic of this workshop. Its official title is 'Dispute Resolution: Civil Justice and its Alternatives'. Alternative dispute resolution (ADR) is usually given a strictly technical meaning, which refers to those devices which are intended to solve disputes, mainly out of court, or by non-judicial devices. This, however, is not the only meaning the conveners of this conference had in mind. Quite properly, they made it clear that what they had in mind was to deal more generally with those devices whether judicial or not that have emerged as alternatives to the ordinary or traditional types of procedures. Thus, class actions, for instance, would be part of the topic they envisaged dealing with, as well as access to justice generally, including access to information in the hands of potential litigants (thus, discovery devices as developed, in particular, in the USA). I will follow, in part at least, this broader approach, and will try to analyse the topic, within the framework of the world-wide access to justice movement, indeed, as an important feature of such a movement.

79 citations



Journal ArticleDOI

39 citations


Journal ArticleDOI
TL;DR: A wide variety of disciplines, including law, political science, psychology, economics, sociology and game theory have been used to try to develop theoretical and empirical understandings of the negotiation process in a multitude of settings.
Abstract: Interest in the science and art of negotiation has grown exponentially in the last ten years.' A wide variety of disciplines, including law, political science, psychology, economics, sociology and game theory have been used to try to develop theoretical and empirical understandings of the negotiation process in a multitude of settings. Efforts to understand and teach what lawyers actually do have facilitated the study and teaching of negotiation.2 The movement in the United States, the United Kingdom3 and elsewhere to foster 'alternatives to litigation'4 as a way of resolving disputes has also increased the focus on the primary dispute resolution process of bilateral negotiation, particularly when conducted by party representatives (there still appears to be less focus on direct party transactional negotiations). Despite the vast outpouring of literature, theories about negotiation remain dichotomised or at best trichotomised into models of distributive (competitive) bargaining, integrative (problem-solving) bargaining or principled (or cooperative) bargaining. These efforts at theory building often conflate analytic properties (the type of substantive problem, the numbers of parties to the dispute, the voluntariness of the negotiation process, the 'stakes,' etc5) and behavioural or stylistic advice (cooperation, information sharing) what at least one theoretician separates into the 'science' and the 'art' of negotiation.6 Some negotiation analysts are concerned with specify-

38 citations


Journal ArticleDOI
TL;DR: Arbitration has for many years been the main form of dispute resolution in certain fields of business activity, including construction, commodities and shipping as discussed by the authors, and virtually all construction contracts contain arbitration clauses.
Abstract: Arbitration has for many years been the main form of dispute resolution in certain fields of business activity, including construction, commodities and shipping. Why has arbitration been the dispute resolution system of choice?' This question concerns the dominance of the legal profession over fields of work including lex mercatoria.2 The issues of fields of work speak to the question of how legal specialists attempt to monopolise fields through the process of juridification.3 The issue of lex mercatoria raises questions that transcend the conventionally accepted relationship of law and state and the cultural specificity of law.4 The three fields of business activity mentioned above construction, commodities and shipping are key instances of the routines of lex mercatoria. Their jurisprudence, although solemnised from time to time in the courts, is mainly developed through the medium of 'lawyers' law', the routine, everyday processes worked out in negotiations, contracts and non-judicial forums.5 These take place both within domestic and international transactions. We have, then, a situation that is best described as one of normative pluralism. Arbitration is not a practice uniform across all fields. In this article we concentrate on one field of juridical activity, namely, construction. We chose this field because of the volume and value of disputes; they are significant both nationally and internationally. And virtually all construction contracts contain arbitration clauses.6 Our

32 citations


Journal ArticleDOI
TL;DR: In this paper, the authors try to identify the practices associated with alternative dispute resolution, and they at once sense that here is a fugitive label attached to a range of disparate and contradictory, but entangled, projects.
Abstract: When we try to identify the practices associated with 'alternative dispute resolution,' we at once sense that here is a fugitive label attached to a range of disparate and contradictory, but entangled, projects. Each of them has attracted its own sponsors at a political level, making it appear that ADR enjoys the support of almost everyone from conservative fundamentalists2 to liberal utopian reformers and the modern left.3 But this political consensus must not distract attention from the diversity of interests which is apparent behind it. While ADR offers to sustain disputants who seek to recover control by disengaging from the attentions of legal specialists, it also attracts a range of professional groups wanting to secure new areas of work; and the ensuing competition inevitably extends the range of interventions to which disputants are potentially subject. At the same time, a contemporary perception of crisis in the civil justice system has led judges to see ADR as a way to ease the present weight of judicial business,4 while government is attracted to active sponsorship as a means of reduced spending on the courts.5 So what promises to be a move to institutionalise alternative modes of dispute management, is at the same time part of the project to renovate litigation, potentially extending governmental provision and control into areas of dispute hitherto firmly in the 'private' sphere. These apparently inconsistent demands on ADR, and the seemingly identical prescription the availability of 'mediation' with which all are met, make it imperative to re-examine closely the forms of intervention which ADR might take, and their potential institutional locations, particularly the proximity to civil justice. Whatever content is found behind the label of 'alternative dispute resolution,' it has to be seen in the context of a wider conversation about dispute processes. Lawyer negotiations and the process of litigation, as well as the whole range of adjudicatory procedures courts, tribunals, arbitration are presently under re-examination.6 So interest in 'alternatives' comes at a moment when there is a

31 citations



Journal ArticleDOI
TL;DR: In the United States, there has been a remarkable growth in the "alternative dispute resolution" (ADR) industry, exemplified by the development of organizations, courses within law schools, continuing legal education and an extensive literature as mentioned in this paper.
Abstract: Concern with different institutions and methods of dispute settlement has a long history. But the rapid growth in lawyers' interest in 'alternative dispute resolution' (ADR) is widely perceived to have gathered momentum in the late 1960s in the United States.' In the past twenty years there has indeed been a remarkable growth in the 'ADR industry,' exemplified by the development of organisations, courses within law schools, continuing legal education and an extensive literature. The main stimuli appear to have been largely pragmatic and political rather than theoretical or 'scientific.' Three particular concerns seem to have predominated: a feeling on the part of the American legal establishment that the court system was becoming intolerably overloaded by an increased volume of civil claims and criminal prosecutions; a felt need, on the part of professionals and others, for specialised private fora to serve particular interests (eg commercial arbitration); and a view that over and above the concomitant increase in congestion, delay and expense, the system was incapable in more fundamental ways of living up to the ideals of 'access to justice' for all. When a 'movement' relating to law develops in the United States, one outcome is almost invariably a massive, confusing and largely unsystematic body of literature of variable quality.2 The ADR movement is no exception. In so far as any general patterns can be discussed from the American ADR literature, perhaps three main strands can be differentiated: first, a body of writing that is concerned with institutional design, in which the central questions relate to the appropriateness of different methods of dispute resolution to various types of 'dispute.' The pioneering work of Lon Fuller in the latter phases of his career is a prominent example.3 Second, there has been a series of essentially political debates about the desirability and necessity of encouraging and developing ADR on a large scale. The diagnosis, prescriptions and the motives of the enthusiasts were challenged by sceptics of varying political persuasions: for example, radical critics such as Jerold Auerbach and Richard Abel, while doubting that 'justice' was routinely achieved in litigation, argued that the alternatives prescribed by advocates of ADR were no more likely to enhance either access to or delivery of justice in practice and that the net effect of the movement

24 citations


Journal ArticleDOI
TL;DR: In Re W (A Minor) (Medical Treatment: Court's Jurisdiction), the Court of Appeal had to decide whether the High Court had power under its inherent jurisdiction to make an order sanctioning the medical treatment of a 16-year-old child contrary to her express wishes.
Abstract: In Re W (A Minor) (Medical Treatment: Court's Jurisdiction),' the Court of Appeal had to decide whether the High Court had power under its inherent jurisdiction to make an order sanctioning the medical treatment of a 16-year-old child ('W') contrary to her express wishes. W had an unfortunate history. After the death of her parents she was received into Local Authority care. Her first fostering placement was disastrous and she was referred to a family consultation clinic. Within 16 months her foster mother had surgery for cancer and shortly after that her grandfather, to whom W was greatly attached, died. Later that year, W (then 14) began to develop signs of anorexia nervosa. Her condition deteriorated. She was eventually admitted to a specialist clinic where she had to be fed by nasogastrict tube and have her arms encased in plaster.2 The consultant in charge of W's case suffered a heart attack and he felt that the responsibility for W's treatment should either be removed from him or shared.

Journal ArticleDOI
TL;DR: In this article, the authors analyse the adverse implications for the rights of individuals who have been labelled as dangerous, either as a result of hospitalisation as a restricted patient, or through the imposition of a discretionary life sentence.
Abstract: Dangerousness, an individual's 'propensity to cause serious physical injury or lasting psychological harm,' is a highly influential factor in decision-making in the arena of mental health law and, to a more limited extent, the criminal justice system. It is a concept which is fraught with difficulty, particularly in the legal context.2 Use of the exact term in legislation is rare.3 However, this has not prevented the courts from applying dangerousness as a criterion for decision making.4 This is not as surprising as it might appear. Although no definitive definition exists, at the heart of the concept lies the assessment of future risk of serious harm. Courts are required to make just such an assessment when deciding to impose protectionist disposals following conviction. For example, both the Mental Health Act 1983, which enables an individual to be hospitalised as a 'restricted patient,'5 and the criteria for imposing a discretionary life sentence involve a predictive judgment of this type.6 Similarly, once these orders have been made, predictive judgments are an integral component of decisions to discharge from hospital or to release from prison. Therefore, in reviewing such decisions the courts are again confronted by the issue of dangerousness. The aim of this article is to analyse the adverse implications for the rights of individuals who have been labelled as dangerous, either as a result of hospitalisation as a restricted patient, or through the imposition of a discretionary life sentence.

Journal ArticleDOI
TL;DR: The Copyright (Computer Programs) Regulations 1992 have the effect of considerably weakening the ability of the copyright owner to protect his computer program, or certain aspects of it, by means of copyright law and contract law.
Abstract: The breadth of copyright protection for computer programs is potentially very generous, extending to program structure, screen displays and preparatory materials,' but this has been significantly compromised by the Copyright (Computer Programs) Regulations 1992 which came into force on 1 January 1993. The Regulations were made in order to ensure that the United Kingdom complied with the European Community Directive on the legal protection of computer programs,2 and they make some far reaching amendments to the Copyright, Designs and Patents Act 1988 as it applies to computer programs. The nature of copyright protection creates a danger that rights in computer programs could be open to abuse and detract from the establishment of standards which is itself seen as an important goal. Unlike other original works of copyright, there is a need for computer programs to be able to interact and interoperate with each other and, failing the safeguards against abuse of right that are well established in patent law, it was seen as desirable that special provision be made to permit certain acts to be done to facilitate the interoperability of computer programs.3 Otherwise, the owner of the copyright subsisting in a computer program that had become established as the market leader could control the market either by asking extortionate royalties from other software producers who wished to make interoperable programs or refusing to grant licences in respect of the interface aspects of his program. The two primary purposes of the Directive were to provide an effective means of protecting computer programs and to harmonise the copyright protection of computer programs throughout the Member States. However, so far as the United Kingdom is concerned, since we already had strong copyright protection in place, the Directive and the Regulations have the effect of considerably weakening the ability of the copyright owner to protect his computer program, or certain aspects of it, by means of copyright law and contract law. A further concern for the computer industry is whether the Regulations fully reflect the Directive's provisions. Certainty is perceived by the industry as very important, as the period leading up to the Copyright (Computer Software) Amendment Act 1985 amply demonstrates.4 There is some doubt as to how effectively the Regulations implement the Directive and this can do nothing but detract from the goal of encouraging investment in the development of new and innovative computer programs. Add to this the difficulty in reconciling European Community Directives with inconsistent domestic legislation,5 and it can be seen that the resultant uncertainties do not help the computer

Journal ArticleDOI
TL;DR: In this paper, the minority situation in the new states which have emerged in lieu of the erstwhile Soviet Union is considered and some controversial legal and political questions concerning the protection of minorities in the light of relevant international instruments are analyzed and a number of proposals made.
Abstract: Even before the dissolution of the USSR, Yugoslavia and Czechoslovakia, issues concerning minorities and protection of their rights and interests had once again become topical. These problems have now come to overshadow many other issues concerning the protection of human rights and fundamental freedoms. In this article, after a brief historical excursus into the issue, I will consider the minority situation in the new states which have emerged in lieu of the erstwhile Soviet Union. I shall draw too on some examples from other post-socialist states. As nationalism clearly affects the resolution of minority problems, special attention will be given to this issue. Finally, some controversial legal and political questions concerning the protection of minorities in the light of relevant international instruments will be analysed and a number of proposals made.

Journal ArticleDOI
TL;DR: The decision of the House of Lords in DPP v Gomez as discussed by the authors brings to a head the debate in the higher courts and in academic journals over the relationship between the offences of theft and of obtaining property by deception.
Abstract: The decision of the House of Lords in DPP v Gomez' brings to a head the debate in the higher courts and in academic journals over the relationship between the offences of theft and of obtaining property by deception. This is the third time that the House of Lords has been called on to examine this general area of the law in just over twenty years.2 In Gomez, the defendant persuaded his unwitting employer to accept two building society cheques, known by the defendant to have been stolen, in exchange for goods at the shop where they both worked. The defendant had, inter alia, falsely told the manager of the shop that a building society cheque was 'as good as cash.' Some time later the two cheques were returned by the bank marked: 'Orders not to pay. Stolen cheque.' Somewhat surprisingly, perhaps, Gomez was charged with theft contrary to s 1(1) of the Theft Act 1968, rather than with obtaining property by deception contrary to s 15 of that Act. When he was convicted, he appealed on the grounds that he had not 'appropriated' the goods in question, as required for the offence of theft under s 1(1). His defence was that the very idea of an 'appropriation' under s 1(1) involved an unauthorised or non-consensual transfer, so the consent of the shop manager to the transfer of the goods to the defendant, albeit obtained by fraud, effectively precluded any finding of an appropriation in his case. Since fraudulently obtained authorisation for a transfer of property is an intrinsic part of the offence of obtaining property by deception, he could (and should) have been charged under s 15, but he was not.3 The Appeal Court allowed his appeal and certified that the following point of law of general public importance was involved:


Journal ArticleDOI
TL;DR: In this paper, the EC Directive on Unfair Contract Terms was adopted, which will have a far reaching impact on the United Kingdom law of contract and major changes can be expected in the way that the law protects the consumer.
Abstract: On 5 April 1993 the EC Directive on Unfair Contract Terms was adopted.' This is one of the most significant pieces of consumer protection legislation to come from Brussels and will have a far reaching impact on the United Kingdom law of contract. Major changes can be expected in the way that the law protects the consumer. In particular, implementation of the Directive will provide an opportunity to deal with the inadequacies of the inaccurately named Unfair Contract Terms Act 1977. It should be noted that in dealing with an area of substantive law, albeit through the mechanism of consumer protection, the Directive could create a precedent for intervention in other areas of the law of contract.

Journal ArticleDOI
TL;DR: This is the first time that an English court has declared that a caesarian section is lawful despite the woman's refusal, and it is also the first decision to be based on the interests of both the mother and the unborn child.
Abstract: In re S (adult: refusal of treatment),' Sir Stephen Brown, President of the Family Division of the High Court, granted a declaration that a caesarian section and consequential treatment could lawfully be performed upon a pregnant woman despite her refusal of consent. The case arose when Mrs S was admitted to hospital with ruptured membranes and in spontaneous labour. The child was in a position of 'transverse lie' and, in the opinion of Mrs S's medical advisors, there was the gravest risk that her uterus would rupture unless the doctors performed a caesarian section. Also, the baby could not be born alive unless the caesarian section was carried out. Mrs S refused consent to the operation because of her religious beliefs and it was found that her mental condition was such that she was competent to decide about her medical treatment. It was held that the operation was lawful 'in the vital interests of both Mrs S and of the unborn child.' As a consequence of the court's declaration the caesarian section was carried out, despite the fact that the unborn child, although alive when the declaration was made, had already died. The decision has been described as 'reigniting the debate over a woman's right to control her body.'2 Sir Stephen Brown P in re S established that the 'right' of an individual to choose whether to consent to medical treatment is not absolute, but may be qualified where the choice may lead to the death of a viable fetus. The possible significance of this decision is twofold. First, it casts doubt on the principle underlying the decision of the Court of Appeal in re T (adult: refusal of treatment)3 that a competent adult patient's refusal of consent to medical treatment may not be overridden in the patient's best interests. Second, it confirms fears that the courts may protect the interests of the unborn child at the expense of those of the mother. Although decisions similar to re S have been reached in the United States, this is the first time that an English court has declared that a caesarian section is lawful despite the woman's refusal. It is also the first decision to be based on the interests of both the mother and the unborn child. In the United States such declarations have been based solely on the basis of the interests of the unborn child.4

Journal ArticleDOI
TL;DR: For example, in the case of RSC Ord 14, the only way in which it was possible to short-circuit the procedure and go straight to judgment without pleadings or trial was by application for summary judgment as discussed by the authors.
Abstract: Let me begin by declaring two limitations on what I intend to discuss. Both arise from the fact that the paper is based entirely on my own experience as counsel and a judge. The first point is that when I speak of recent changes, I mean what has happened over the last twenty-five years or so, since the late 1960s, which happens to be when I came to the Bar. Secondly, I shall speak principally of actions in the Chancery Division. I doubt whether things are very different in the Commercial Court, but I can say nothing of, for example, personal injury litigation or procedure in the County Court. Twenty years ago, English civil procedure could be said to have the following salient characteristics. First, it was intended to enable the parties to obtain a decision on disputed questions of legal right. In other words, it was devised for deciding bona fide disputes. Second, the centre piece of the system was the trial. This meant a continuous session, sometimes contained within a single day, sometimes lasting many days, at which the parties would confront each other, call their witnesses, test their opponent's evidence by cross-examination, make their submissions and receive judgment. Third (and this is a corollary of the last feature), the earlier procedural stages such as pleadings, discovery and interlocutory applications were ancillary to the ultimate trial and judgment. Their purpose was first, to enable the trial to be conducted as efficiently and economically as possible and second, to enable the judgment to be as effective as possible. Fourth, the proceedings were largely oral. The rules for the written elements of the procedure pleadings, affidavits, interrogatories emphasised the need for brevity. The rules said that pleadings are to be succinct and affidavits should not be prolix. But they said nothing about limits on oral evidence or submissions: these were open-ended, subject only to the general discretion of the court. Let me now examine the extent to which these characteristics have changed. First, the procedure as a method for deciding bona fide disputes. The bulk of the Rules in the White Book, so far as they apply to ordinary civil proceedings, are designed to enable the issues to be defined, the parties to prepare for trial and the trial to take place in an orderly and effective manner. Clearly, none of this makes any sense in a case in which there is no real dispute and the plaintiff only wants access to the coercive power of the state in order to enforce his undoubted rights. Until quite recently, the only way in which it was possible to short-circuit the procedure and go straight to judgment without pleadings or trial was by application for summary judgment under RSC Ord 14 or RSC Ord 86. In recent years, however, this remedy has been shown to be in various respects inadequate. First, let me consider those cases for which RSC Ord 14 was primarily designed, namely the money claim in a liquidated amount, where the defendant is delaying payment to improve his cash flow or because he is in fact unable to pay his debts but wants to stave off liquidation or bankruptcy. There are symptoms to suggest that, in this kind of case, the paradigm RSC Ord 14 case, the system is not working adequately. These symptoms consist in an increase in the number of cases in which companies deny that they owe money which the creditor claims is indisputably due


Journal ArticleDOI
TL;DR: The concept of English civil litigation as an adversary process does not simply acknowledge that the parties are opposed to each other in some formal sense, but also raises the possibility that there are cases where the court is entitled to override the parties' actual or presumed wishes and develop matters of its own motion by reference to some concept of public interest, especially where the integrity of the system may be at stake.
Abstract: For so long the adversary system and the principle of orality have been the dominant characteristics of the English system of civil litigation. Both of these features have now come under sustained attack and it may be that a modern approach to dispute resolution will require considerable adaptation, and even rejection, of existing procedural forms if we are to provide adequate mechanisms for the determination of civil claims. Such a discussion is not simply a matter of choosing alternative structural philosophies. It involves a search for procedures which will afford speedy, economic, effective and, above all, appropriate means for the redress of private grievances which the legal system recognises as being amenable to process. In a society which has become ever more socially and technologically complex, and where group interests have become increasingly important, the role of courts and civil settlement processes will become an ever more important focus of interest. In this country the reform of civil procedure and the litigation process has been intimately bound up with the social organisation of the legal profession and, in particular, with the status and function of the judiciary and the Bar. If our procedures need to alter then our lawyers will also have to change. The concept of English civil litigation as an adversary process does not simply acknowledge that the parties are opposed to each other in some formal sense. In his Hamyln Lectures, the greatest of our moder procedural thinkers, Sir Jack Jacob, has carefully analysed the historical and cultural background to the development of our system and concluded that the essence of such adversity lies not only in the relationship between the parties, but also in the function of the courts.' English civil litigation has always been regarded as a predominantly voluntary system in which the parties play a dominant role in formulating and developing the demand for a remedy and the presentation of the factual and legal issues for determination by the court. Within this framework the parties are free to bargain for settlement, within or without the available court procedures, and to withdraw the case at any stage prior to judgment. By contrast, the court, representing the wider public interest in the peaceful resolution of disputes, remains neutral and inactive towards the parties, regulating the way in which the disputants must proceed if they are to obtain finality in the action and responding only to interlocutory applications made to it and the necessity to deliver judgment after a trial has taken place. These generalised notions raise complex problems. In a seminal work, Mirjan Damaska has questioned the degree of dominance exercised by the parties in civil proceedings in the common law world and has doubted whether the passive role of the court is as necessary as appears to be the case. He raises the possibility that there are cases where the court is entitled to override the parties' actual or presumed wishes and develop matters of its own motion by reference to some concept of public interest, especially where the integrity of the system may be at stake.2 It is impor-


Journal ArticleDOI
TL;DR: Prisons are, by their nature, difficult institutions within which to maintain order as mentioned in this paper, and to suggest that this structure of authority is an order produced by fear and the threat of violence would seem to imply that the most orderly prison is the most coercive.
Abstract: Prisons are, by their nature, difficult institutions within which to maintain order. Prisoners are, after all, held against their will and incarceration is rooted in the use of force. Prisons are manifest symbols of the power of the state but they cannot and are not run through brute force. They function in accordance with a hierarchical principle of ordering, and to suggest that this structure of authority is an order produced by fear and the threat of violence would seem to imply that the most orderly prison is the most coercive. To adopt such an approach would be to ignore the role of rules in the ordering of the prison regime. The prison authorities undoubtedly possess great power to define, revise, interpret and manipulate these rules. But to deny the significance of the system of rules would be to present a limiting conception of the idea of power and a distorted picture of the prison regime. Prison life is structured by rules and, to some extent, prisoners acquiesce in that structure of rules.

Journal ArticleDOI
TL;DR: The Carriage of Goods by Sea Act 1992 as mentioned in this paper was the first piece of legislation to address the link between the transfers of property and contractual rights, extending the principle of transfer of contract rights to other carriage documents, resolving the difficulties created by the decision in Grunt v Norwuy2 and allowing regulations to be introduced to deal with the introduction of electronic alternatives.
Abstract: Almost unnoticed except by specialists in the field of international trade law the Carriage of Goods by Sea Act 1992 crept onto the statute book last summer. The Act implements recommendations in the Law Commissions’ Report ‘Rights of Suit in Respect of Carriage of Goods by Sea,” and owes its place on the statute book to Lord Goff, who took up the Commissions’ proposals and introduced the Commissions’ draft Bill as a private peer’s measure in the House of Lords. First introduced in February, the Bill was lost on the dissolution of Parliament for the General Election, but was reintroduced in June and, with Government support, completed its passage in almost record time, coming into force on 16 September 1992. In just six sections the Act replaces the Bills of Lading Act 1855, breaking the link between the transfers of property and contractual rights, extending the principle of transfer of contract rights to other carriage documents, resolving the difficulties created by the decision in Grunt v Norwuy2 and allowing regulations to be introduced to deal with the introduction of electronic alternatives to transport documents. We propose to examine the reforms in the new Act against the background of the weaknesses in the old law and alternative reforms which might have been adopted, including the reforms of the doctrine of privity contemplated in the Law Commission’s recent consultation paper.3


Journal ArticleDOI
Colin Warbrick1
TL;DR: In the UK, recognition and the establishment of intergovernmental relations are primarily exercised in an international context, but recognition and, now we must say, inter-governmental relations do have domestic implications.
Abstract: The thrust of the statement was that effectiveness would generally be a necessary precondition for governmental status, but it would not necessarily be a guarantee of 'normal Government to Government' relations. In British practice, recognition and the establishment of intergovernmental relations are primarily exercised in an international context. However, recognition and, now we must say, intergovernmental relations, do have domestic implications. At common law, the right of a State or Government to sue or to claim immunity in the English courts depended upon its being recognised by the British government. Also, the willingness of the courts to take notice of the acts and decrees of a foreign authority depended upon its being recognised by the British government.2 Whether an authority was recognised by the government was to be conclusively determined by an executive certificate presented to the court by the government.-3 The domestic implications of the new policy were not easy to discern. Whether the courts would look for 'implied recognition' from the British government's conduct, whether they would switch their attention from forrnal status to effectiveness, and what, in either case were the evidential consequences, would become apparent only in practice. In fact, the practice has been remarkably slow in accumulating. While there have been several occasions since 1980 on which the British government has found it necessary to reiterate its 'we do not recognise governments' policy in political contexts,4 with the rather anomalous exception of Gur v Trust Bank of A:+iica,5 which concerned the status of Ciskei, the new policy has not been considered by the courts. Part of the explanation for this is that occasions to do so will arise only after an unconstitutional seizure of power by a new authority within an existing State. There are no difficulties about constitutional succession of

Journal ArticleDOI
TL;DR: In this article, the authors examine two emergent trends in the supervision of banks in the United Kingdom: the use of statutory law in the supervisory process, and the role played by bank auditors in that process.
Abstract: The purpose of this article is to examine two emergent trends in the supervision of banks in the United Kingdom.1 The first trend concerns the use of statutory law in the supervisory process, and the second the role played by bank auditors in that process. It will be argued that, historically speaking, the Bank of England2 developed a flexible and co-operative3 approach to bank supervision. Recently, however, attempts have been made at building statutory foundations into this process of supervision, and bank auditors have been drawn into the supervisory process. In turn, these developments prompt the two questions which are considered in this article. First, what are the consequences for the law of its instrumentalisation by government in the sphere of bank supervision? Second, what are the implications for the audit function of the bank auditor's evolving supervisory responsibilities? In answering these questions, frequent reference will be made to the scandal surrounding the collapse of the Bank of Credit and Commerce International which in recent years has done so much to highlight the Government's responsibility for bank supervision. It is a truism that the UK Government habitually resorts to legislation to further its policy objectives.4 Given the pre-eminent position of the Government in the law-making process, this is not surprising. Daintith, however, has observed that 'many lawyers still react with unease or even distaste when invited to view law as an instrument of policy, and even those who find nothing strange about the notion will readily admit that the relationship between law and policy remains a problematic one.'5 The claim frequently made is that the instrumentalisation of law by national governments for policy purposes has precipitated a transformation


Journal ArticleDOI
TL;DR: In this article, the authors argue that the only justification for excluding hearsay evidence is the dangers which a particular piece of hearsays evidence presents and that concentrating on conceptual distinctions between assertions relied upon for their truth and assertions which are not relied on for this purpose has produced irreconcilable lines of case law and led to the exclusion of evidence which, because of its probative value and reliability, should have been admitted.
Abstract: English judges and lawyers pride themselves in their pragmatic approach to the law. Yet this pragmatism is conspicuously absent from one of the most entrenched rules of evidence the hearsay rule. This requires a court to exclude any written or oral statement not made in the course of the proceedings which is offered as evidence of the correctness of the matter asserted. A statement which is relevant independently of the real intention of the speaker2 or the truth of what is stated3 is not adduced for a testimonial purpose and is therefore outside the scope of the rule. The basis of the hearsay rule is supposedly the dangers which attach to the use of statements not made by witnesses within the confines of the courtroom where the declarant can be subjected to immediate cross-examination. However, when the question of admitting an out-of-court assertion arises in a criminal trial, no attempt is ever made to measure the real danger which the statement presents to the fact-finding process. Instead the court concentrates on conceptual issues is the statement being used testimonially? If the answer is yes, does it fall within one of the narrow and inflexible common law exceptions to the rule (all of which were created before the end of the nineteenth century) or one of the more recent, but equally limited, statutory exceptions to the rule.4 If the answer to the second question is no, the evidence is automatically rejected. There is never any question of weighing the probative value of the evidence against the risk of unreliability. In this article I argue that the only justification for excluding hearsay evidence is the dangers which a particular piece of hearsay evidence presents and that concentrating on conceptual distinctions between assertions relied upon for their truth and assertions which are not relied on for this purpose has produced irreconcilable lines of case law and has led to the exclusion of evidence which, because of its probative value and reliability, should have been admitted.

Journal ArticleDOI
TL;DR: In the case of the Matrix Churchill case, the case went to trial but the prosecution collapsed after Alan Clark, the former Minister of State for Defence Procurement, admitted in cross-examination that he supported the allegedly unlawful sale as discussed by the authors.
Abstract: Last year, in the much-publicised Matrix Churchill case, three executives of the company were charged with illegally supplying arms-making equipment to Iraq. The case went to trial but the prosecution collapsed after Mr Alan Clark, the former Minister of State for Defence Procurement, admitted in cross-examination that he supported the allegedly unlawful sale. The Matrix Churchill affair is already something of a cause celebre in legal circles. However, its notoriety does not lie so much in the Minister's surprising admissions under cross-examination, as in the Government's declared position on public interest immunity. Four Ministers' having signed public interest immunity certificates in relation to documents pertaining to the case, it was asserted by the AttorneyGeneral2 (and by other Ministers,3 including the Prime Minister4) that the Ministers had a duty to claim public interest immunity for such documents and that this duty cannot be waived. This assertion, which continues to be made, must be refuted. It is not based on authority (despite the views expressed by two of the defence counsel in a letter to The Times5) and it goes against the spirit as well as the letter of recent developments in the law of public interest immunity. In his statement to the House of Commons on 10 November 1992, the AttorneyGeneral said: