The paper discusses the impact on the English law of unjust enrichment of a series of class actions in the 2000s and 2010s to recover money paid as tax under sections of the UK tax legislation that were found to have been contrary to EU law.
{"title":"Recovery of Overpaid Tax Under English Law","authors":"C. Mitchell","doi":"10.2139/SSRN.2847060","DOIUrl":"https://doi.org/10.2139/SSRN.2847060","url":null,"abstract":"The paper discusses the impact on the English law of unjust enrichment of a series of class actions in the 2000s and 2010s to recover money paid as tax under sections of the UK tax legislation that were found to have been contrary to EU law.","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128166369","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Most directors and senior managers of UK companies would likely regard it as trite law that, in undertaking their managerial and/or control functions, they are accountable first and foremost to their employer firm’s general body of shareholders. It follows that the interests of other corporate constituencies – and, in particular, those of employees – must ultimately cede to those of shareholders in the event of conflict. Although frequently taken for granted today, the lexical priority that the British company law framework affords to the interests of shareholders over those of other corporate constituencies is remarkable, not least when viewed alongside the correspondingly disempowered corporate governance status of labour in the UK. However, whilst the centrality of shareholders’ interests to the doctrinal and normative fabric of contemporary UK company law is both manifest and incontrovertible, this has curiously not always been the case. In this paper I argue that, whilst UK company law might look substantively stable and well-settled on its surface today, on closer inspection this facade of apparent calm can be seen to mask a fairly recent history of doctrinal and ideological turbulence with regard to fundamental underlying concerns. There is thus cause to question whether the basic normative impetus of the UK’s company law framework is as complementary to its surrounding economic and socio-political context as might first appear.
{"title":"Shareholder Primacy, Labour and the Historic Ambivalence of UK Company Law","authors":"Marc T. Moore","doi":"10.2139/ssrn.2835990","DOIUrl":"https://doi.org/10.2139/ssrn.2835990","url":null,"abstract":"Most directors and senior managers of UK companies would likely regard it as trite law that, in undertaking their managerial and/or control functions, they are accountable first and foremost to their employer firm’s general body of shareholders. It follows that the interests of other corporate constituencies – and, in particular, those of employees – must ultimately cede to those of shareholders in the event of conflict. Although frequently taken for granted today, the lexical priority that the British company law framework affords to the interests of shareholders over those of other corporate constituencies is remarkable, not least when viewed alongside the correspondingly disempowered corporate governance status of labour in the UK. However, whilst the centrality of shareholders’ interests to the doctrinal and normative fabric of contemporary UK company law is both manifest and incontrovertible, this has curiously not always been the case. In this paper I argue that, whilst UK company law might look substantively stable and well-settled on its surface today, on closer inspection this facade of apparent calm can be seen to mask a fairly recent history of doctrinal and ideological turbulence with regard to fundamental underlying concerns. There is thus cause to question whether the basic normative impetus of the UK’s company law framework is as complementary to its surrounding economic and socio-political context as might first appear.","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-09-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129367226","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2016-09-01DOI: 10.26686/VUWLR.V48I1.4769
Olivia Lewis
This paper looks at the UK Supreme Court’s decision in the case of the Starbucks (HK) Limited v British Sky Broadcasting Group PLC (Starbucks). In this case Lord Neuberger re-affirmed that the traditional ‘hard-line approach’ is the applicable test for the goodwill limb under the tort of passing off in the UK. This approach maintains that in order to succeed in a claim for passing off, the claimant must show they have goodwill in the form of business and customers in the jurisdiction. Mere reputation among a significant section of the public within the jurisdiction (the soft-line approach) was held to be insufficient. Lord Neuberger’s reasoning in favour of the traditional ‘hard-line approach’ is critically analysed and it is found that his approach was out of touch with modern commercial reality. In conclusion, it is contended that Lord Neuberger did not strike the appropriate balance between the competing public interests in protection and competition and that he should have adopted the more factually inquisitive soft-line approach. This would have brought the UK into line with the more dominant and arguably more justifiable trend in other common law jurisdictions, thereby avoiding the enduring uncertainty which is likely to follow this decision.
{"title":"Starbucks (HK) Case Note: The Ambiguous Limb of Goodwill and the Tort of Passing Off","authors":"Olivia Lewis","doi":"10.26686/VUWLR.V48I1.4769","DOIUrl":"https://doi.org/10.26686/VUWLR.V48I1.4769","url":null,"abstract":"This paper looks at the UK Supreme Court’s decision in the case of the Starbucks (HK) Limited v British Sky Broadcasting Group PLC (Starbucks). In this case Lord Neuberger re-affirmed that the traditional ‘hard-line approach’ is the applicable test for the goodwill limb under the tort of passing off in the UK. This approach maintains that in order to succeed in a claim for passing off, the claimant must show they have goodwill in the form of business and customers in the jurisdiction. Mere reputation among a significant section of the public within the jurisdiction (the soft-line approach) was held to be insufficient. Lord Neuberger’s reasoning in favour of the traditional ‘hard-line approach’ is critically analysed and it is found that his approach was out of touch with modern commercial reality. In conclusion, it is contended that Lord Neuberger did not strike the appropriate balance between the competing public interests in protection and competition and that he should have adopted the more factually inquisitive soft-line approach. This would have brought the UK into line with the more dominant and arguably more justifiable trend in other common law jurisdictions, thereby avoiding the enduring uncertainty which is likely to follow this decision.","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"57 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123456805","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2016-08-09DOI: 10.1017/cbo9781316529706.013
M. Leeming
The relationship between equity and statute is important, complex and under-appreciated. This paper identifies ways in Australia, the United Kingdom and the United States of America in which equitable principles of unconscionable conduct have interacted with statute.
{"title":"Equity and Statute: A Commentary","authors":"M. Leeming","doi":"10.1017/cbo9781316529706.013","DOIUrl":"https://doi.org/10.1017/cbo9781316529706.013","url":null,"abstract":"The relationship between equity and statute is important, complex and under-appreciated. This paper identifies ways in Australia, the United Kingdom and the United States of America in which equitable principles of unconscionable conduct have interacted with statute.","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"57 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-08-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133653885","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Ronald B. Davis, Stephan Madaus, Alberto Mazzoni, Irit Mevorach, R. Mokal, Barbara J. Romanine, Janis Sarra, Ignacio Tirado
Historically, insolvency systems have been designed with larger enterprises in mind. They assume an extensive insolvency estate of significant worth, and the presence of creditors and other stakeholders with sufficient value at stake that they participate in and oversee the process. These assumptions undergird mechanisms by which creditors and other stakeholders may ensure that the insolvency process faithfully serves their interests, for an independent professional to run the business undergoing an insolvency process, and for extensive judicial oversight.These assumptions and features are incongruent with the reality of micro, small, and medium enterprises ('MSMEs'). Mirroring the general population of businesses and reflecting the particular fragility associated with smaller asset bases and relative absence of risk diversification, the vast majority of businesses entering insolvency proceedings are MSMEs. On MSME insolvency, little or no value is available for distribution to anyone other than secured creditors in a significant proportion of insolvency estates, and secured creditors tend to have effective collection methods under non-insolvency law. Correspondingly, most secured and unsecured creditors, as well as other stakeholders, are rationally disinterested in the insolvency process. In many cases, it is not worthwhile for either the estate or most stakeholders to engage lawyers to represent them in court. Estates may possess inadequate value even to pay an independent insolvency professional. Such incongruence between the design of insolvency regimes and the nature of most of the businesses to which they apply leaves the insolvency process unbalanced, inadequately supervised, non-efficacious, and sometimes, simply unfeasible. Policy-makers and legislators have often responded through ad hoc changes to the ‘standard’ regime, such as by shearing some elements of the insolvency process when applied to smaller businesses, by shortening statutory timelines, and by dispensing with the necessary participation of certain stakeholders. The resulting processes have been marked by arbitrary boundaries, rigid preconditions for availability, and limited effectiveness. This paper systematically rethinks the treatment of distressed MSMEs. At its core is a new ‘Modular Approach’ to MSME insolvency. This approach is modular in two ways: (i) it allows national policy makers to choose from a range of available options including in terms of the involvement of appropriate institutions; (ii) subject to national authorities’ design decisions, the Modular Approach provides an essential ‘core’ process in each case, and allows relevant stakeholders to invoke additional tools (‘modules’) if and when the benefits of wielding those tools in the particular case outweigh the costs.The Modular Approach shares with ‘standard’ insolvency regimes the core objectives of preserving and maximizing the value in the insolvency estate, ensuring distribution over an appropriate p
{"title":"The Modular Approach to Micro, Small, and Medium Enterprise Insolvency","authors":"Ronald B. Davis, Stephan Madaus, Alberto Mazzoni, Irit Mevorach, R. Mokal, Barbara J. Romanine, Janis Sarra, Ignacio Tirado","doi":"10.2139/SSRN.2904858","DOIUrl":"https://doi.org/10.2139/SSRN.2904858","url":null,"abstract":"Historically, insolvency systems have been designed with larger enterprises in mind. They assume an extensive insolvency estate of significant worth, and the presence of creditors and other stakeholders with sufficient value at stake that they participate in and oversee the process. These assumptions undergird mechanisms by which creditors and other stakeholders may ensure that the insolvency process faithfully serves their interests, for an independent professional to run the business undergoing an insolvency process, and for extensive judicial oversight.These assumptions and features are incongruent with the reality of micro, small, and medium enterprises ('MSMEs'). Mirroring the general population of businesses and reflecting the particular fragility associated with smaller asset bases and relative absence of risk diversification, the vast majority of businesses entering insolvency proceedings are MSMEs. On MSME insolvency, little or no value is available for distribution to anyone other than secured creditors in a significant proportion of insolvency estates, and secured creditors tend to have effective collection methods under non-insolvency law. Correspondingly, most secured and unsecured creditors, as well as other stakeholders, are rationally disinterested in the insolvency process. In many cases, it is not worthwhile for either the estate or most stakeholders to engage lawyers to represent them in court. Estates may possess inadequate value even to pay an independent insolvency professional. Such incongruence between the design of insolvency regimes and the nature of most of the businesses to which they apply leaves the insolvency process unbalanced, inadequately supervised, non-efficacious, and sometimes, simply unfeasible. Policy-makers and legislators have often responded through ad hoc changes to the ‘standard’ regime, such as by shearing some elements of the insolvency process when applied to smaller businesses, by shortening statutory timelines, and by dispensing with the necessary participation of certain stakeholders. The resulting processes have been marked by arbitrary boundaries, rigid preconditions for availability, and limited effectiveness. This paper systematically rethinks the treatment of distressed MSMEs. At its core is a new ‘Modular Approach’ to MSME insolvency. This approach is modular in two ways: (i) it allows national policy makers to choose from a range of available options including in terms of the involvement of appropriate institutions; (ii) subject to national authorities’ design decisions, the Modular Approach provides an essential ‘core’ process in each case, and allows relevant stakeholders to invoke additional tools (‘modules’) if and when the benefits of wielding those tools in the particular case outweigh the costs.The Modular Approach shares with ‘standard’ insolvency regimes the core objectives of preserving and maximizing the value in the insolvency estate, ensuring distribution over an appropriate p","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-07-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121538827","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The corporate objective, namely, in whose interests should a company be run, is the most important theoretical and practical issue confronting us today, as the core objectives animate or should animate every decision a company makes. Despite decades of debate, there is no consensus regarding what the corporate objective is or ought to be. Contrary to the widely held belief that the corporate objective should be shareholder wealth maximization (SWM), this article seeks to demonstrate that SWM is unsuitable by exploring its main problems. As an antithesis to SWM, the stakeholder theory generally emerges and develops to be an alternative. Justifications will be offered from different aspects. In particular, its advantages in solving short-termism and externalization compared with SWM will be focused on.
{"title":"The Corporate Objective Revisited: Part II","authors":"Min Yan","doi":"10.54648/bula2017008","DOIUrl":"https://doi.org/10.54648/bula2017008","url":null,"abstract":"The corporate objective, namely, in whose interests should a company be run, is the most important theoretical and practical issue confronting us today, as the core objectives animate or should animate every decision a company makes. Despite decades of debate, there is no consensus regarding what the corporate objective is or ought to be. Contrary to the widely held belief that the corporate objective should be shareholder wealth maximization (SWM), this article seeks to demonstrate that SWM is unsuitable by exploring its main problems. As an antithesis to SWM, the stakeholder theory generally emerges and develops to be an alternative. Justifications will be offered from different aspects. In particular, its advantages in solving short-termism and externalization compared with SWM will be focused on.","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"146 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122944834","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Condominium laws in India have been in existence since 1963, with the earliest condominium legislation in the state of Maharashtra. Most states in India have their own separate legislations for condominiums; however, the principles upon which these state legislations rest are based on the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963. In recent times, there have been efforts to revamp the rights and obligations of apartment owners, real estate developers and other stakeholders through the Maharashtra Housing (Regulation and Development) Act, 2012 and the Real Estate (Regulating and Development) Bill, 2013, which was passed by the Indian Parliament in March 2016.This paper is divided into three parts. The first part argues that while different states have their own respective state laws relating to the transfer and administration of condominiums, such states follow the same principles developed in the State of Maharashtra and for all intents and purposes, there exists a standardised set of rules relating to the transfer and administration of condominiums. The second part of the paper ‘Overview of Apartment Laws in India’ describes the development of apartment laws in India including a detailed discussion of the apartment ownership, transfer and administration law in India. The third section of the paper discusses a landmark judgment which laid the basis for wide sweeping changes in the way the real estate industry is regulated. It further discusses the salient features of the Real Estate (Regulating and Development) Bill, 2013, the proposed central legislation for the regulation and development of the real estate industry in India.
{"title":"Developments in the Apartment and Urban Real Estate Laws in India","authors":"Arjya B. Majumdar","doi":"10.2139/SSRN.2747086","DOIUrl":"https://doi.org/10.2139/SSRN.2747086","url":null,"abstract":"Condominium laws in India have been in existence since 1963, with the earliest condominium legislation in the state of Maharashtra. Most states in India have their own separate legislations for condominiums; however, the principles upon which these state legislations rest are based on the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963. In recent times, there have been efforts to revamp the rights and obligations of apartment owners, real estate developers and other stakeholders through the Maharashtra Housing (Regulation and Development) Act, 2012 and the Real Estate (Regulating and Development) Bill, 2013, which was passed by the Indian Parliament in March 2016.This paper is divided into three parts. The first part argues that while different states have their own respective state laws relating to the transfer and administration of condominiums, such states follow the same principles developed in the State of Maharashtra and for all intents and purposes, there exists a standardised set of rules relating to the transfer and administration of condominiums. The second part of the paper ‘Overview of Apartment Laws in India’ describes the development of apartment laws in India including a detailed discussion of the apartment ownership, transfer and administration law in India. The third section of the paper discusses a landmark judgment which laid the basis for wide sweeping changes in the way the real estate industry is regulated. It further discusses the salient features of the Real Estate (Regulating and Development) Bill, 2013, the proposed central legislation for the regulation and development of the real estate industry in India.","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-03-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116735337","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In Canada and the United States, the constructive trust is a proprietary remedy awarded mainly to prevent unjust enrichment or to deter wrongdoing; the remedy gives the plaintiff an equitable proprietary interest in the disputed asset, as opposed to simply a money claim for the value of the asset. This feature of the constructive trust is particularly important if the defendant is insolvent or, by extension, if there is a substantial risk that the defendant may become insolvent before the judgment is satisfied. A constructive trust in insolvency is analogous to a security interest: it allows the plaintiff to take the disputed asset out of the defendant's estate, with the result that the plaintiff recovers in full on its claim. This is at the expense of the estate, which is correspondingly depleted, and the claims of the defendant's unsecured creditors which are, as a result, diminished. The Canadian case law on the availability of constructive trust relief in the defendant's insolvency is unsettled and there is confusion in both the case law and the literature as to the doctrinal basis of the remedy and the relevant policy considerations. It is commonly argued that a key policy consideration is, or should be, whether the plaintiff voluntarily accepted the risk of the defendant's insolvency. But, while popular in restitution circles, this approach is deeply problematic from a bankruptcy perspective. This paper examines the current state of the case law in Canada, identifies and critically analyzes the main theoretical arguments in the literature and suggests the basis on which the courts should approach cases of this kind.
{"title":"Constructive Trusts in Insolvency: A Canadian Perspective","authors":"A. Duggan","doi":"10.2139/ssrn.2742320","DOIUrl":"https://doi.org/10.2139/ssrn.2742320","url":null,"abstract":"In Canada and the United States, the constructive trust is a proprietary remedy awarded mainly to prevent unjust enrichment or to deter wrongdoing; the remedy gives the plaintiff an equitable proprietary interest in the disputed asset, as opposed to simply a money claim for the value of the asset. This feature of the constructive trust is particularly important if the defendant is insolvent or, by extension, if there is a substantial risk that the defendant may become insolvent before the judgment is satisfied. A constructive trust in insolvency is analogous to a security interest: it allows the plaintiff to take the disputed asset out of the defendant's estate, with the result that the plaintiff recovers in full on its claim. This is at the expense of the estate, which is correspondingly depleted, and the claims of the defendant's unsecured creditors which are, as a result, diminished. The Canadian case law on the availability of constructive trust relief in the defendant's insolvency is unsettled and there is confusion in both the case law and the literature as to the doctrinal basis of the remedy and the relevant policy considerations. It is commonly argued that a key policy consideration is, or should be, whether the plaintiff voluntarily accepted the risk of the defendant's insolvency. But, while popular in restitution circles, this approach is deeply problematic from a bankruptcy perspective. This paper examines the current state of the case law in Canada, identifies and critically analyzes the main theoretical arguments in the literature and suggests the basis on which the courts should approach cases of this kind.","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"31 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-03-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116005854","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article analyses the Court of Appeal’s interpretation of the fraud by abuse of position offence in R v Valujevs. Two issues are explored: first, the Court’s welcome clarification of the meaning of a relevant ‘expectation’; second, the inadequacy of the Court’s reasoning in deciding that an unlicensed gangmaster ‘is expected to safeguard, or not to act against, the financial interests’ of his workers.
{"title":"Fraud by Abuse of Position and Unlicensed Gangmasters","authors":"Jennifer Collins","doi":"10.1111/1468-2230.12184","DOIUrl":"https://doi.org/10.1111/1468-2230.12184","url":null,"abstract":"This article analyses the Court of Appeal’s interpretation of the fraud by abuse of position offence in R v Valujevs. Two issues are explored: first, the Court’s welcome clarification of the meaning of a relevant ‘expectation’; second, the inadequacy of the Court’s reasoning in deciding that an unlicensed gangmaster ‘is expected to safeguard, or not to act against, the financial interests’ of his workers.","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133111531","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The European Commission adopted a "Regulation on jurisdiction, applicable law, recognition and enforcement of decisions in matters of succession." One of the most important issues that this Regulation addresses is the determination of the law applicable to a given succession for nationals of one member state with habitual residence in another member state. The Regulation provides that in such cases, the governing law to the succession will be the law of the state in which the deceased had his or her habitual residence at death. The UK, together with Ireland and Denmark, did not opt-in to this Regulation. This paper analyzes the impact of the UK's decision not to opt-in to the Regulation and argues that the UK will manage to preserve its system of private international law but will not avoid being affected by the provisions of the Regulation. In this sense the UK will minimize, but not escape, the effects of the European Regulation on cross-border succession.
{"title":"The Intended and Unintended Effects of the UK's Not Opt-In to Regulation 650/2012 on Cross-Border Succession","authors":"Mireia Artigot-Golobardes","doi":"10.2139/SSRN.2729760","DOIUrl":"https://doi.org/10.2139/SSRN.2729760","url":null,"abstract":"The European Commission adopted a \"Regulation on jurisdiction, applicable law, recognition and enforcement of decisions in matters of succession.\" One of the most important issues that this Regulation addresses is the determination of the law applicable to a given succession for nationals of one member state with habitual residence in another member state. The Regulation provides that in such cases, the governing law to the succession will be the law of the state in which the deceased had his or her habitual residence at death. The UK, together with Ireland and Denmark, did not opt-in to this Regulation. This paper analyzes the impact of the UK's decision not to opt-in to the Regulation and argues that the UK will manage to preserve its system of private international law but will not avoid being affected by the provisions of the Regulation. In this sense the UK will minimize, but not escape, the effects of the European Regulation on cross-border succession.","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-02-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132712541","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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