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This paper considers recent company law reform proposals in Hong Kong in relation to the ratification of breaches of directors' duties, and also makes suggestions for further reform. In the course of this discussion, comparisons will be made with the corresponding position under the UK Companies Act 2006. Finally, several wider observations in relation to the consequences of codification of common law principles and the divergence between English and Hong Kong company law will be offered. The aim is to suggest directions for future reform in the important but somewhat inaccessible area of ratification of breaches of directors' duties. While this paper seeks to consider these issues in the light of Hong Kong, the discussion would be of interest to those from other common law jurisdictions who are examining the issue of ratification or looking with interest at the recent United Kingdom company law reform efforts and considering whether to adopt them locally. [ABSTRACT FROM AUTHOR]

The principle of autonomy is at the heart of the right of a competent individual to make an advance directive that refuses life-sustaining medical treatment, and to have that directive complied with by medical professionals. That right is protected by both the common law and, to an extent, by legislation that has been enacted in the United Kingdom and many jurisdictions in Australia. The courts have a critical role in protecting that autonomy, both in those jurisdictions in which the common law continues to operate and in those jurisdictions which are now governed by statute, and in which judicial determinations will need to be made about legislative provisions. The problem explored in this paper is that while the judiciary espouses the importance of autonomy in its judgments, that rhetoric is frequently not reflected in the decisions that are reached. In the United Kingdom and Australia, there is a relatively small number of decisions that consider the validity and applicability of advance directives that refuse life-sustaining medical treatment. This paper critically evaluates all of the publicly available decisions and concludes that there is cause for concern. In some cases, there has been an unprincipled evolution of common law principles, while in others there has been inappropriate adjudication through operational irregularities or failure to apply correct legal principles. Further, some decisions appear to be based on a strained interpretation of the facts of the case. The apparent reluctance of some members of the judiciary to give effect to advance directives that refuse treatment is also evidenced by the language used in the judgments. While the focus of this paper is on common law decisions, reference will also be made to legislation and the extent to which it has addressed some of the problems identified in this paper. [ABSTRACT FROM AUTHOR]

This paper discusses the divergence in the operation of the doctrine of adverse possession which the Land Registration Act 2002 brings about, resulting in a separate approach to registered and unregistered land. The Law Commission justified the new dichotomy by explaining that while adverse possession runs counter to the fundamental concept of indefeasibility which is a feature of registered title, its role in encouraging the owner of land to guard possession is fully compatible with the unregistered title system which is based on possession. It also noted that the doctrine plays a vital role in the investigation of title to unregistered land and concluded that making the requirements for adverse possession of unregistered land too demanding could weaken the security of title to that land. Section II of this paper investigates claims that the doctrine of adverse possession is at odds with principles of title registration. Section III examines the role played by possession and adverse possession in the unregistered conveyancing system. It is submitted that the reasons adduced by the Law Commission for restricting the reforms of the doctrine to registered land do not hold up under scrutiny. Once this is acknowledged, it becomes necessary to consider whether the reforms could be extended to unregistered land in a manner which would not raise concerns about the functionality of the unregistered conveyancing system or the reliability of the Land Register once first registration has occurred. The marketable title legislation which operates in the US illustrates how title defects that may not be revealed by a standard investigation of title may be eliminated without reliance on the doctrine of adverse possession. If England were to borrow the basic premise behind the US approach, requiring the registration of certain older interests in order to preserve their validity, an extension of the veto system to unregistered owners could be contemplated. The paper concludes by discussing the advantages of introducing such reform and suggesting solutions for certain practical difficulties which it would raise. [ABSTRACT FROM AUTHOR]

This paper considers how three jurisdictions, Canada, the United States and the United Kingdom, have sought to reconcile freedom of religion with equality rights, particularly in the commercial context, and particularly in relation to sexual orientation. The recent decisions of the United Kingdom Supreme Court and United States Supreme Court form the backdrop for that discussion. It is argued that the former made piecemeal, and misleading, use of American case law, and a fuller consideration of that jurisdiction's position was warranted, and would have led to a different view of the recent American decision. It argues that the United Kingdom Supreme Court was in error in viewing a message on a cake ordered from a baker as an example of the baker's expression, leading it to an incorrect conclusion at odds with statutory mandates in the commercial sphere around refusals of service. Both high court decisions risk undermining progress on the equality front. [ABSTRACT FROM AUTHOR]

Conditions and warranties, which are generally referred to as policy terms in insurance contracts, are crucial in the determination of the rights and obligations of the contracting parties. The article examines the enforcement of policy terms in insurance contracts at common law and the legislative measures that have been deployed in some common law countries, including Nigeria, the United Kingdom and Australia, to ensure fairness as well as to balance the inequality in the bargaining power of the contracting parties. In as much as the principle of freedom of contract will generally be honoured by the court, the paper argues that through legislative intervention in policy terms in these countries, the principle is being discountenanced with, in appropriate cases, in order to effectuate the just and reasonable expectation of the insured. It concludes by proffering suggestions to identified lacunae in the Nigerian Insurance law. [ABSTRACT FROM AUTHOR]

Litigants are now required to consider mediation and can be penalized under the Civil Procedure Rules if they unreasonably refuse to use an ADR procedure. As litigants are expected to participate in mediation, there are mounting concerns, particularly in common law countries that mandate attendance before accessing the courts, that parties are obstructing the process by engaging in 'bad faith'. Some common law countries have used the concept of 'good faith' negotiation to design rules or codes to regulate conduct in mediation. The English and Welsh jurisdiction identifies mediation as a type of negotiation, but has no developed concept of negotiating in 'good faith'. This paper first reviews the case law on good faith negotiation in England and Wales, before considering the concept of 'good faith' in mediation and assessing whether or how the conduct of parties in mediation could be controlled. The concept of good faith in mediation may not provide the answer because of definitional difficulties and a review of Australia, Hong Kong and the USA indicates that many rules or procedural codes are confined to a 'minimum level' of participation. Furthermore, court control of conduct is limited by the rules of without prejudice in negotiation and confidentiality rules in mediation, which limits court review unless there is substantial impropriety such as blackmail or duress. This paper proposes that the issue of the conduct of parties in mediation must be given serious consideration, particularly in view of judicial pressures in some quarters for courts to be given increased powers to direct litigants to mediate. Mandating mediation may lead to more incidences of bad faith or to party involvement without serious engagement. An argument is made to draw on the already developed principles of unreasonable behaviour in litigation in order to define the expectations of reasonable conduct in mediation. [ABSTRACT FROM AUTHOR]

The general duties owed by directors to their companies are a critical element of company law overall, and corporate governance in particular. If these duties are breached, the board, acting on behalf of the company, is empowered to decide whether to take action against the miscreant directors. If no action is taken then shareholders are permitted to initiate private derivative actions against the directors on behalf of the company. This might be seen as the primary private enforcement mechanism used in the UK when directors commit breaches. But there have been relatively few actions commenced by shareholders, probably because of the many disincentives that exist for them. Given this state of affairs, this paper examines whether there is a need for the public enforcement of duties by some authority so that there is an enhancement of corporate governance in the UK. [ABSTRACT FROM AUTHOR]

This paper analyses the legal protection of the journalist–source relationship from both sides and the underlying interests involved. The paper begins by analysing why the relationship deserves protection. The position of journalists at common law is analysed with a discussion of the application of the principle established in Norwich Pharmacal v Customs and Excise to journalists. The development of immunity from contempt in s. 10 of the Contempt of Court Act 1981 is examined to illustrate the ideological clash between the judiciary and journalists. The impact of the Human Rights Act and decisions of the European Court of Human Rights are analysed to assess whether this will lead to a change in attitudes in the UK. Finally, the potential threat to journalists posed by compelled evidentiary disclosure in criminal cases is reviewed, with a particular look at ‘special procedure' material. The US section begins with an analysis of the law at federal level, the decisions of the Supreme Court, including the leading decision of Branzburg v Hayes, as well as the role the legislature has played. The paper then analyses protections provided at state level, with a case study of the California shield law and a review of Californian jurisprudence. [ABSTRACT FROM AUTHOR]

This paper surveys the use made of comparative law by the House of Lords and Supreme Court in tort cases decided in the period 1990-2013. Consideration is given to the use of materials from both common law and civil law jurisdictions. The research finds that these courts make a great deal of use of comparative common law (albeit from a limited number of jurisdictions) and that these materials have played a part in a variety of ways in developing the law. In contrast, use of materials from civil law jurisdictions has been at a much lower level and appears to have declined in recent years. The enthusiasm for using civil law sources that certain judges showed in the past has not been continued in more recent years. [ABSTRACT FROM AUTHOR]

The relative priority of creditors in the administration of the estate of a person who died domiciled in the Caribbean is governed by rules that are substantially taken from outmoded common law and old English statutes. This paper examines those rules and offers a critique of their content, before using goals of efficiency and social policy to propose a structure for law reform. [ABSTRACT FROM AUTHOR]

This paper discusses the extent to which the common law recognized public interest considerations when confronted with utility insolvencies in the UK, Australia, and the US in the period 1825 to 1970. Jurisprudence in all three jurisdictions concerning insolvent utilities arose in the nineteenth century out of the difficulties arising from the financial distress of railway companies. It is argued that public interest considerations were mobilized to justify various degrees of restriction on the usual rights of creditors in all jurisdictions. While evidence was found of the use of public interest theory in all jurisdictions, there was little development of it in the UK and Australia compared with the US. This may have been because of the early introduction of statutory schemes of arrangement in both countries and because of the nationalization of the industries for the better part of the twentieth century. In the US, on the other hand, public interest theory in the context of insolvent railways and other utilities was much more developed. In particular, it provided part of the rationale for the judicial development of the equity receivership into a comprehensive corporate reorganization mechanism. [ABSTRACT FROM AUTHOR]

This paper critically examines the law of forum non conveniens, in particular the use of the ‘clearly inappropriate forum’ test in Australia, compared with the ‘more appropriate forum’ test applied in jurisdictions such as the UK and the US. It traces the development of the law in the UK in relation to forum non conveniens, including the English acceptance of the doctrine, and how it has been applied in various cases. Some criticism of the ‘more appropriate forum’ test is noted, and it is not recommended that the courts adopt the ‘laundry list’ approach evident in some US decisions, where up to 25 different factors are considered in assessing a forum non conveniens application. It considers the Australian ‘clearly inappropriate forum’ test, and concludes that the ‘clearly inappropriate forum’ test should no longer be followed in that it is unnecessarily parochial and is not consistent with other goals of the rules of private international law including comity. Links between Australia and the subject matter may well be tenuous. Confusion attends the application of the test in Australia at present, the court has rejected the English approach but claims to apply some of the factors mentioned in the English approach in the Australian test, and there is an undesirable schism between statutory rules applicable in domestic cases and the approach when the common law doctrine of forum non conveniens is used. The law regarding forum non conveniens should be harmonious with choice of law rules, and interest analysis can assist in formulating the desired approach to forum non conveniens applications. [ABSTRACT FROM AUTHOR]

The rule that ignorance or mistake of law is no excuse is one of the pillars of the criminal law. However, it can prove problematic in some cases including those where an individual commits an offence in reliance on incorrect official advice. This paper argues that the orthodox judicial approach to such claims fails to address the concern that the defendant is held responsible for what is essentially the state's own mistake. Rather than advocating a full defence of officially induced error of law, a more appropriate solution is for the court to exercise its inherent jurisdiction to prevent an abuse of process by staying the proceedings. This ‘procedural’ approach, which identifies the state's role in the commission of the offence, has recently been adopted by the Supreme Court of Canada, and has the potential to be applied in other common law jurisdictions including Australia, New Zealand and the United Kingdom. [ABSTRACT FROM AUTHOR]

This paper focuses on the extensive law reform that has been conducted in the Commonwealth Caribbean with respect to insurance law. The Caribbean's transition from the colonial dependence on United Kingdom eighteenth- and nineteenth-century legislation and its subsequent acceptance of the Caribbean Law Institute's (CLI) Insurance Bill of 1993 is examined within the context of regional integration and the creation of the Caribbean Single Market & Economy. Discussion highlights several shortcomings at both the regional and national level which threaten to undermine the level of protection afforded insured policyholders. Regionally, while the fragmented dialogue on integration mirrors that experienced by the European Union, the Caribbean cannot yet claim the same degree of success. The outcome is that there is an absence of consolidated supervision and/or coherent rules and guidelines. For the insurer, this increases the regulatory complexity of regional insurance business. At the national level, apart from the failure by some territories to embrace the CLI reforms signalling that protection is prima facie dependent on the jurisdiction from which the insured hails, perhaps reflective of the regional harmonization effort, institutional consolidation is being witnessed with the emergence of super ‘one-stop’ regulators by some Caribbean territories. This consolidation, it is canvassed, threatens to further obscure the needs of the insured and even where legislative reform has occurred, as in the case of Jamaica with the 2001 Insurance Act, the philosophical stance is so dissimilar from its regional counterparts that a tension is created that must be accommodated on the regional front. Collectively the developments raise questions as to the raison d'être of insurance law and whether the regime, as currently constructed, is truly capable of meeting the needs of insured policyholders. [ABSTRACT FROM AUTHOR]

This paper involves analysis of the law covering discrimination in the workplace against workers who have entered into a formal marriage or a civil partnership, referred to here as ‘marital discrimination’. It also looks at the law dealing with discrimination against single workers. The case law in the United Kingdom concerning both these issues is considered and the protection under the law of the European Union and human rights legislation is analysed. In addition, the legal treatment of discrimination in the workplace against people who have entered into a heterosexual or same-sex marriage in the United States is considered. Recommendations are made for changing the law in both the UK and the US in light of the unclear legal rules and inadequate protection in both jurisdictions for victims of marital and singles discrimination. [ABSTRACT FROM AUTHOR]

This paper is based on interviews with and documents supplied by the owners, directors and managers of 40 small businesses in the UK. It analyses the contractual arrangements made for business purposes, investigates the firms’ experiences of litigation and attempts to classify the legal problems faced by small firms in their contractual relationships. The firms’ legal problems were more in the area of private business relations than public administration and many of the actions arising out of contractual relations were statutory rather than contractual. The most common type of problem related to firms’ inadequate response to the legal environment rather than to deficiencies in the law or legal system. There was only a limited professional legal input into contract formation although the use of standard terms was widespread. There were doubts on the part of some of the firms about whether the contractual framework they had adopted offered sufficient legal protection. It is submitted that it is right that small firms should not be excluded from legal duties placed upon employers more generally but the conclusion here is that they are badly placed to fulfil these duties because of a difficulty in gaining access to legal resources. The main implication for legal policy is that small firms may require a publicly-subsidized legal service if they are to conduct their contractual relationships lawfully, particularly as these relationships come to be regulated increasingly by statute. It is noted that some steps consistent with such an approach are being considered by the government in relation to employment law. [ABSTRACT FROM AUTHOR]

Directors owe their duties primarily to the company. Those duties shift to the creditors whenever the company is in dire financial straits. The directors are required in such a situation to ensure that the affairs of the company are conducted in such a manner as would not put in jeopardy the recovery by the creditors of debts owed to them by the company. Company statutes in different jurisdictions seek to ensure that the directors adhere to this principle by making provisions against fraudulent trading. The difficulties associated with the proof of various elements of the offence as provided in the statutes have compelled the Parliament in some jurisdictions to incorporate a civil element into the apparently criminal provisions with a view to easing the burden of proof and invariably the punishment for the offence of fraudulent trading. The courts' interpretations of the various criminal elements of the provisions and other developments of the law in different jurisdictions, especially in the United Kingdom, South Africa and Lesotho, are examined with a view to ascertaining how best those provisions could be employed to afford adequate protection to the creditors in the modern corporate world. [ABSTRACT FROM AUTHOR]

This article considers the way in which sexual harassment law in the United States and the United Kingdom has been formulated within the framework of sex discrimination law, and explores the theoretical and practical difficulties in treating sexual harassment as a form of sex discrimination. In contrast, in continental Europe, the problem of harassment at work, including harassment of women, has been conceptualized as an issue of human dignity. But ‘dignity’ also has weaknesses as a tool for conceptualizing sexual harassment, and can hide the way in which sexual harassment is indeed often a form of discrimination against women, rather than an individualized harm. Finally, the article will examine the new legal definition of harassment in the UK, which outlaws both harassment on grounds of sex, but also sexual harassment, abandoning the discrimination framework in favour of a dignitary harm. [ABSTRACT FROM AUTHOR]