Search

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. [ABSTRACT FROM AUTHOR]

Witchcraft beliefs have been the cause of some of the cruellest crimes against vulnerable groups, particularly the elderly, in many African societies since the pre-colonial era. People accused of being witches are often subjected to all manner of mistreatments – ostracism/banishment, discrimination, physical assault or torture, lethal violence and so on. However, there are rare instances where the hunted (the accused witches) turn the tables on the hunters (their accusers) with claims of defamation, but such legal battles tend to be complicated. The present study explores the Ghanaian courts' attitude towards witchcraft-related defamation claims/lawsuits, examining how they have navigated the complex and often confusing system of legal pluralism since the 1970s. It establishes that mere insults and name-calling, including witchcraft accusations, are generally not actionable under the received common law. However, under the Ghanaian customary law, insults and name-calling that impair or are likely to impair one's dignity are actionable per se. The paper notes that the courts in Ghana at times apply the principles of both customary law and the received common law when dealing with witchcraft-related defamation claims. [ABSTRACT FROM AUTHOR]

The Indian Parliament enacted the Information Technology Act (ITA) in 2000 to provide legal recognition to e-commerce and e-governance. The ITA, however, was heavily criticized for being technology-specific in nature and was therefore amended in 2008 to give it a technology-neutral status. The aim of this paper is to examine critically the provisions related to electronic signatures in the amended legislation by comparing them with the United Nations Commission on International Trade Law (UNCITRAL) model laws, the European Union Directive on Electronic Signatures and other electronic signatures legislation across the world. The paper concludes that, despite the amendments, the ITA is still a weak legislation, complex to understand, ambiguous and fails to address many aspects of electronic signatures usage. It is also an over-regulated legislation compared with similar legislation in other developing countries such as China and developed countries such as Australia, the UK and Singapore. Finally, the authors provide some recommendations, which can potentially address the shortcomings of the ITA. [ABSTRACT FROM AUTHOR]

The common law on vicarious liability is unsatisfactory because the doctrine is couched at such a high level of generality that it cannot yield predictable results when applied to a given fact situation. This paper is an attempt to inject some precision into the doctrine. It examines and rejects three justifications for the doctrine: effective compensation/risk spreading, deterrence and certain theories related to quid pro quo. It then proposes the most suitable justification for the doctrine: vicarious liability is imposed because and when the defendant, by placing the tortfeasor in the position in its organisation that it did with that position's accompanying privileges and demands, had created or significantly enhanced the risk of the claimant's injury. Three implications follow from this justification: (1) there is no vicarious liability for the wrongful acts of independent contractors; (2) agency reasoning should be rejected; and (3) we should stop using the phrase 'enterprise-risk approach'. [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]

This paper examines the influence of behavioural research on economic policy-making, as it relates to the regulation of consumer credit and consumer financial services. Using the examples of credit cards in the USA and Australia, and retirement savings infrastructure in the USA, New Zealand and Australia, we investigate the impact of 'nudging' on regulation in these areas, and the degree to which such policies are capable of substantive change without the support of mandatory measures and other forms of targeted regulation. The authors conclude that nudging, alone, is not sufficient to achieve effective regulatory reform, and that other policies recommended by behavioural economics, such as mandatory measures and other forms of targeted regulation, are also required to achieve durable change in consumer behaviour. In light of this conclusion, the authors suggest that 'nudging' is best viewed as a regulatory supplement, or one of a range of regulatory tools, and that more attention should be focused on the full range of behavioural law and economics regulatory reform recommendations, especially in the areas covered by this paper. [ABSTRACT FROM AUTHOR]

The administration of the patent system in Sri Lanka and its importance to the national economic strategy is a novel topic in the country. The national patent law in Sri Lanka has been subject to international agreements such as the WTO TRIPS Agreement and the WIPO Patent Cooperation Treaty. Nevertheless, Sri Lanka is notable for the undeveloped state of its patent system, mainly because the patent examination system is not designed or based on national or economic priorities. With this background, the purpose of this paper is to examine and critically evaluate the different mechanisms adopted in the patent administration system and whether the present patent system in Sri Lanka remains aligned with Sri Lanka's national economic strategy and how the present system could be developed to strengthen the patent system, both in provision and in administration. The paper recommends that Sri Lanka is better off having a utility model system along with a high standard of patent examination system. By employing this dual system both domestic innovation and foreign investment would increase in the future. [ABSTRACT FROM AUTHOR]

Following the lead of the UK and Australia, Hong Kong recently proposed the tightening up of access by the public to directors' residential addresses and identity card or passport numbers during its reform of the Companies Ordinance, but encountered strong opposition from the media and various professional bodies, leading to the government's decision to shelve the proposal. This paper highlights the lessons that the Hong Kong government should learn from this failure to transplant a corporate law reform, which overlooked the differences in the unique local situations. [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]

In a remarkably frank paper, Professor Andrew Burrows has shed some light on the process by which awards for non-pecuniary loss in personal injury cases were uplifted in Heil v Rankin, a process in which he played a leading role as a Law Commissioner. In apparent disregard of the criticisms to which this process has been subjected, Burrows regards it as an example of a valuable ‘methodology’ of common law law reform. These criticisms are reviewed in this paper and to them is added a criticism of the concept of ‘normal decision-making’ by the courts that is the basis of Burrows’ views. Heil v Rankin was far from normal decision-making, but in this it was merely of a piece with all awards of damages for non-pecuniary loss, for such damages have no grounding in the common law adjudication of awards of compensation. The further development in Simmons v Castle of the judicial legislation effected in Heil v Rankin is also considered. [ABSTRACT FROM AUTHOR]

Although the implied duty of mutual trust and confidence has long been established as an implied term in employment contracts under English common law, the Australian High Court has recently ruled that it is not part of the common law regulating employment contracts in Australia because the implication of such a term was better regulated under statute. While it is acknowledged that legislation is most effective in regulating substantive employment rights and obligations, a political climate which lends itself to ideologically divergent policy reforms often robs the discipline of its stability. However, if there exists a legal framework apart from legislation, which coheres with it and has the ability to initiate juridical development in the law, as is the role of the common law, the result will be an enrichment of the discipline overall. This paper traces selected English and Australian judicial approaches towards the implication of the duty of mutual trust and confidence in the context of terminations of employment within a statutory regime, culminating with an analysis of the recent Australian High Court decision in Commonwealth Bank of Australia v Barker (Barker), which has diminished common law’s interpretive role in this regard. Consequently, this paper aims to revitalize common law reasoning by utilizing Dworkin’s judicial interpretive method as the necessary theoretical framework. [ABSTRACT FROM AUTHOR]

Civil justice reforms in both England and Canada have consistently advocated the need for a litigation ‘culture shift’ away from the traditional adversarial trial process in resolving disputes to settlement through ADR. In seeking to implement this cultural shift, both countries have adopted distinctly diverging approaches to the issue of mandatory ADR. This paper critically analyses the current rules of civil process and associated judicial attitudes toward compulsory ADR in England and in Canada. It argues that the Canadian approach of legislating compulsory ADR provides greater consistency and predictability when it comes to ensuring that litigants undertake ADR efforts. In contrast, the English approach, which formally rejects but impliedly accepts and implements mandatory ADR, creates uncertainty for those who engage with the civil justice process. Drawing on the Canadian practice, this paper proposes ways in which the English court rules may be reformed to better integrate mandatory ADR. [ABSTRACT FROM AUTHOR]

There are several laws and some notable judicial decisions across the globe to regulate electronic signatures. These judicial decisions when interpreting legislation are not consistent with each other. They leave much to be desired. There are still problems with the validity of an electronic signature. In this paper the author mainly focuses on the South African model. The major legislation regulating the use of electronic signatures in South Africa is the Electronic Communications and Transactions Act 25 of 2002. It has recently been interpreted in the case of Spring Forest Trading v Wilberry by the High Court of KwaZulu-Natal (KZN) and the highest court of South Africa, the Supreme Court of Appeal (SCA). However, there is a wide difference in the approaches of the High Court of KZN and the SCA. Even in other jurisdictions judicial decisions have not helped towards clarifying the law; rather one has to wade through conflicting approaches of judges to understand where the law is going. The paper concludes with a few recommendations, which if adopted may help clarify the legal position of electronic signatures in South Africa and worldwide. [ABSTRACT FROM AUTHOR]

Since early 1990s, demutualization of stock exchanges has become a global trend. Recently, the Securities and Exchange Commission of Nigeria expressed the intention of Nigeria to join the global trend with the passage of the Securities and Exchange Commission Rules on Demutualization of 2015. This paper examines demutualization policy in Nigeria with particular reference to the issue of conflict of interest. It argues that conflict of interest in the post-demutualization era in Nigeria could be appropriately managed through the co-regulatory approach that is practised under the mutual structure, albeit with some reforms. The paper suggests two major reforms. First, the self-regulatory function of exchanges should be restructured in such a way that the role of exchanges as market operators would be distinct from their role as market regulators. Second, the regulatory role of the Securities and Exchange Commission should be expanded to include the power to appoint members of the board of management of a demutualized exchange; regulation of self-listing of a demutualized exchange; and adjudication of conflicts where the commercial interest of a demutualized exchange conflicts with that of a listed entity on the exchange. The paper further argues that such regulatory system would not only enhance the front-line regulatory responsibility of demutualized exchanges, but also ensure a balanced approach to regulation of conflicts of interest in post-demutualization era in Nigeria’s securities market. [ABSTRACT FROM AUTHOR]

Workplace bullying remains a substantial problem in many developed countries. It is estimated to cost the Australian economy over AUD$6 billion annually, the Irish economy at least €3 billion and the US around US$300 billion. In 2012 the Australian Government established a parliamentary inquiry into workplace bullying that resulted in the creation of a specific bullying jurisdiction within the Fair Work Commission to deal with the issue. This paper provides an overview and critical analysis of the new jurisdiction, comparing it to approaches in Europe and the United States. The paper argues for the adoption of stricter penalties, including criminal sanctions with considerable fines and uncapped compensation, as the most effective deterrent to toxic workplace cultures. [ABSTRACT FROM AUTHOR]

The scope of the defence of illegality in the law of tort is often controversial and difficult. This paper examines the issues in the specific context of negligence claims for personal injury suffered by a passenger against a driver with whom he was engaged in an illegal venture. This problem has been considered in a recent decision of the High Court of Australia and two decisions of the Court of Appeal in England. These cases are analyzed and several different approaches to the application of the illegality defence are identified. The proposition that it is impossible to identify the driver’s standard of care in such cases is rejected. The notion that the scope of the defence of illegality can be determined by considering whether to decline to apply it would lead to ‘incongruity’ within the law has attracted support in Australia and Canada. Nevertheless the paper argues that the apparent utility of the test as a relatively straightforward means of determining when claims should fail is deceptive, and that it is unworkable in cases of any complexity. The proposition that causation can provide a necessary but not sufficient condition for the application of the illegality defence in the type of case under consideration, however, is welcomed. But it is also concluded that some reference to intuitive perceptions as to the gravity of the parties’ illegal adventure will often be inescapable in order to avoid applying the defence to less serious cases in which its application would be unjust. [ABSTRACT FROM AUTHOR]

Following over a century of development, Australian common law concerning the comparable sales method of valuation for land and property, within the context of compulsory acquisition and rating statutes, had evolved to provide a focus on individual elements within the method but did not provide a clear sequential process. However, three decisions of the NSW Land and Environment Court in 2012, which are described and critically analysed in this paper, formed a metamorphosis of the common law by clearly setting out the legal principles of the comparable sales method of valuation while leaving the valuation practice to expert witness valuers. With relatively little research undertaken into the legal aspects of the valuation of land and property, this paper forms an original contribution to the literature through the critical analysis and discussion of recent court decisions. Given the significant imminent development of major infrastructure projects in Australia, likely to necessitate the extensive compulsory acquisition of land and property, such metamorphosis is contended to be timely and potentially relevant to other common law jurisdictions having similar compulsory acquisition statutory regimes and land and property valuation practices. [ABSTRACT FROM AUTHOR]

This paper analyses the issue of whether directors may use reliance on professional advice as a defence to a claim for breach of duty to exercise care, skill and diligence under common law or companies legislation in England and Australia. While England and Australia share the same common law tradition and have similar statutory provisions on the standard of care of directors, an English court generally regards a director as acting reasonably when he seeks advice from a qualified and independent professional adviser in a specialist matter within his expertise. In the absence of any conflict of interest, reliance is only unreasonable if the circumstances are so plain and obvious that no prudent person will rely on the advice. In contrast, recent Australian cases, particularly ASIC v Healey, ASIC v MacDonald and ASIC v Fortescue, restrict the circumstances in which directors can rely on professional advisers, even in specialist matters. This paper argues that the difference in approach between the two jurisdictions can be explained on two grounds. First, the Australian cases can be distinguished from the English cases because the former are special situations dealing with matters involving non-delegable duties of care imposed by legislation. Second, the potential outcomes of the breach of the duty of care differ in England and Australia, and this difference has a much deeper, substantive influence on the content of the standard of care. Contrary to academic suggestion, it is suggested that the Australian developments may not always be appropriate in determining the scope of the defence of reliance on professional advice in England. [ABSTRACT FROM AUTHOR]

Given the vast quantity of obstetric litigation and all its associated complexities, in 2012 the National Health Service Litigation Authority (NHSLA) produced a report entitled Ten Years of Maternity Claims: An Analysis of NHS Litigation Authority Data (the 2012 Report). This document identified, inter alia, a number of problematic areas in respect of litigation trends and illuminated a range of clinical situations in which claims are most likely to arise. It is against this backdrop that this paper seeks to critically analyse a body of case law that has occurred since the publication of the 2012 Report. Focusing on breach of duty, the paper seeks to evaluate whether or not the weighing of risks and benefits, as advocated in the case of Bolitho as a means of assessing the question of breach, has been appropriately utilised by judges in recent childbirth cases. It is an important and original piece of research as it is the first of its kind to investigate how judges have dealt with specific aspects of childbirth identified as being contentious in the wake of the 2012 Report. [ABSTRACT FROM AUTHOR]

Perhaps the most challenging aspect of the prosecution's task in a rape trial is proving that consent was absent. Despite the centrality of consent, the concept is not legislatively defined in Irish law. In this respect, Ireland has lagged considerably behind other comparable common law jurisdictions. Irish guidance on consent continues to be gleaned from common law rules and is generally not sufficiently developed to contribute to minimizing the prosecution's difficulties in proving an absence of consent in rape trials. This paper argues for the introduction of a statutory definition of consent in Irish law and considers the form that a prospective definition should take. [ABSTRACT FROM AUTHOR]

Dissatisfaction with the administration of justice is as old as law proclaimed the distinguished American legal scholar Roscoe Pound in 1906. The system of administration of justice has been under considerable scrutiny in Cyprus following the excessive delays in resolving disputes that are highlighted in reports such as the European Union's Justice Scoreboard, the World Bank's Doing Business Reports as well as European Commission papers on Cyprus, urging authorities to modernize the system in order to be able to meet the demands following the financial crisis. For this reason, various experts have been assigned with the task of identifying the problems and coming up with proposals and solutions. The discussions, though, are not new as similar problems have been presented in common law jurisdictions, in particular, but they have been tackled decades ago, with the adoption of reforms that moved the adversarial system of justice closer to civilian stereotypes. [ABSTRACT FROM AUTHOR]

The rules governing the distribution of an intestate estate applied pursuant to s. 46 of the Administration of Estates Act 1925 as amended by s. 1 of the Inheritance and Trustee’s Powers Act 2014 ensure very generous provision for surviving spouses in England and Wales. However, notwithstanding the merits of such provision, the extent to which the regime strikes an appropriate balance in distributing such an estate, in particular between the surviving spouse and a deceased’s children from a former relationship, if present, appears somewhat dubious. The first part of this paper briefly positions the intestacy regime adopted in England and Wales in an international context, placing a special emphasis on the protection afforded to the interests of a deceased’s children from a former relationship in a number of different jurisdictions. The next part critiques the arguments recently advanced by the Law Commission for England and Wales against reform in this area and argues that such reform is, in fact, warranted. On this basis, the final part presents a novel proposal for consideration. [ABSTRACT FROM AUTHOR]

Much of the contemporary scholarship on contractual interpretation is staunchly against a textual analysis, by which a court can only depart from the plain meaning of a contract exceptionally. It is therefore no surprise that scholars have reacted negatively to the spate of recent cases where the English courts have re-emphasized the plain meaning of the text in contractual interpretation. Yet one cannot help but wonder whether a textual analysis is really so problematic when courts across the common law world have re-embraced it. Drawing from both theoretical and comparative perspectives, this paper suggests that a focus on the text in contractual interpretation, and the corresponding application of the plain meaning rule, is to be welcomed and not scorned. [ABSTRACT FROM AUTHOR]

In March 2016, the Financial Services Development Council (FSDC) of Hong Kong published a paper to examine whether the financial market of Hong Kong should introduce regulatory framework to promote equity crowdfunding. This article examines the recent experiences of the United States and United Kingdom in setting a regulatory framework on equity crowdfunding and seeks to identify what Hong Kong can learn from its Anglo-American counterparts in regulating such activity. It is ultimately argued that these experiences provide a good platform for implementing a broadly similar regime in Hong Kong by permitting crowdfunding within the scope of current regulated activities. [ABSTRACT FROM AUTHOR]

In Uganda, legislation does not define ‘life imprisonment’. However, the 2006 Prisons Act provides that, for the purpose of remission, life imprisonment means 20 years’ imprisonment. In 2011, the Supreme Court, the highest court in the country, held that life imprisonment should mean imprisonment for the remainder of an offender’s natural life. However, since then there have been cases from the Court of Appeal, the second highest court in Uganda, questioning the Supreme Court’s ruling. In a common law country where legal precedent is revered, this is unheard of. In this paper the author argues that although the Court of Appeal may not be impressed with the Supreme Court’s judgement, the principle of legal precedent obliges it to follow that judgement. The author submits that the sentence of life imprisonment remains imprisonment for the remainder of the offender’s life as interpreted by the Supreme Court and that the legislature may have to intervene to amend the law to expressly state what life imprisonment means. [ABSTRACT FROM AUTHOR]

An increasing number of multi-national enterprises have arranged their corporate structures in a way which sharply reduces or completely eliminates their tax liabilities, both at home and abroad. This practice, referred to as base erosion and profit shifting (BEPS), has become a pertinent feature in the international tax domain. In response to this growing problem the Organisation for Economic Cooperative Development released an Action Plan in July 2013. In the coming years, BEPS is likely to remain high on political agendas around the world and it is expected that many countries will implement the OECD’s Action Plan recommendations and introduce or enhance their own general anti-avoidance legislation as a strategy to counter BEPS. This paper specifically examines the recent amendments to the Australian general anti-avoidance rule and the recently introduced British general anti-abuse rule in 2013 with regard to the definition of ‘tax benefit/advantage’. An analysis of tax benefit/advantage concept within the respective anti-avoidance rules is compared and contrasted to the wide definition of tax benefit stipulated in Action Item 12 of the OECD Action Plan. The likely consequences and some policy implications for tackling BEPS and tax avoidance generally are canvassed. [ABSTRACT FROM AUTHOR]

Shakespeare’s Juliet may declaim she would love Romeo by whatever name he is identified; to her, he is the ‘rose’ that would smell just as sweet regardless of his name. The Malaysian Court of Appeal would disagree vehemently with Juliet; for the court, the individual’s name in her National Registration Identity Card (‘NRIC’) is everything; the individual herself does not exist for purposes of legal proceedings if identified by other than her NRIC name, even if the person is before the court. In Anne Theresa de Souza v Majlis Agama Islam, Jabatan Agama Islam Selangor & Ors and other appeals [2010] 3 MLJ 748, the court dismissed the appellant’s attempt to record her abjuration of Islam in her NRIC on this technical ground without considering its merits. This paper respectfully argues that the court erred both in law and procedure in arriving at this decision. [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]

In the absence of domestic standard-setting, it seems that the legislative landscapes of poor countries are subject to the policy direction of key developed countries which seek the highest returns from transnational trade and wish to have their economic interests broadened via the conduit of bilateral trade agreements. Consequently, a classic pattern that has tended to create deep concern among African countries lately is the priority given to the UPOV Convention-style Plant Breeders’ Rights over effective sui generis regimes under the TRIPS Agreement. This paper identifies a regional bilateral trade agreement—the African Growth and Opportunity Act 2000, which is already a failed initiative, as the source of political pressure on African countries to enact Plant Breeders’ Rights legislation as opposed to the reasonable and effective sui generis regimes under the TRIPS Agreement. The author will show that after signing the African Growth and Opportunity Act initiative, African countries have surrendered their territorial sovereignty to the extent that they are now under political pressure to prioritise the commercialisation of agro-biotechnology resources via the UPOV Convention-style Plant Breeders' Rights in line with the commercial interests of the United States. [ABSTRACT FROM AUTHOR]

This article examines the use of financial services law (securities regulation) to regulate and to reduce emissions trading to reduce the causes of climate change-with reference to Australia's use of financial services law from 2012. The Australian financialization model, introduced by the previous Australian (Australian Labor Party) government, is planned to be repealed in mid-2014 (depending on votes in the upper house of the Australian parliament) by the conservative (Liberal-National Party coalition) government as its 'first order of business'. At the time of writing in April 2014, the carbon price is in full operation. The government won office in September 2013, partly in the wake of an electoral backlash against the 'carbon tax'. Australia's climate change model was based on defining emission reduction units as financial products under the Corporations Act, which resulted in the regulation of the market for trading emissions reductions becoming the responsibility of the financial services regulator, the Australian Securities and Investments Commission. This article examines the financial services model which treats emissions as financial products, regulated by financial services laws which provide inter alia for trading on regulated markets, the licensing of advisers, the expectation of high standards for secondary trading, the recognition of consumer rights under consumer laws and the continuous disclosure of information to financial markets. [ABSTRACT FROM AUTHOR]