In the past decades due to changed technical advances, features of the personality have become economically exploitable to an extent not previously known. Pop stars, TV celebrities as well as famous athletes have sought protection against the commercial use of their images, names and likenesses without their consent. Despite the economic value of personality and image rights, there is currently no international standard or agreed legal concept for recognizing an image right. While many jurisdictions, for example, the US, Germany, France and Hungary offer express statutory protection against the unauthorized commercial use of an individual's image by a third party in the context of publicity or personality rights, English law provides no cause of action for the infringement of image rights as such. Although a celebrity may currently obtain protection through various statutory and common law rights, such as the developing law of privacy, trade mark law breach of confidence and, in particular, the tort of passing off, none of these rights were designed to protect image or personality rights. In this context, this article explores the potentially enforceable rights, their benefits and practical strategies to protect name and image rights in the UK and Hungary.
{"title":"Image Rights: Exploitation and Legal Control in English and Hungarian Law","authors":"Corinna Coors, Péter Mezei","doi":"10.2139/ssrn.2723003","DOIUrl":"https://doi.org/10.2139/ssrn.2723003","url":null,"abstract":"In the past decades due to changed technical advances, features of the personality have become economically exploitable to an extent not previously known. Pop stars, TV celebrities as well as famous athletes have sought protection against the commercial use of their images, names and likenesses without their consent. Despite the economic value of personality and image rights, there is currently no international standard or agreed legal concept for recognizing an image right. While many jurisdictions, for example, the US, Germany, France and Hungary offer express statutory protection against the unauthorized commercial use of an individual's image by a third party in the context of publicity or personality rights, English law provides no cause of action for the infringement of image rights as such. Although a celebrity may currently obtain protection through various statutory and common law rights, such as the developing law of privacy, trade mark law breach of confidence and, in particular, the tort of passing off, none of these rights were designed to protect image or personality rights. In this context, this article explores the potentially enforceable rights, their benefits and practical strategies to protect name and image rights in the UK and Hungary.","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-01-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117147259","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 light of an increasing intent by the UK Government to authorise hydraulic fracturing (also commonly known as ‘fracking’), this paper examines the experience of the U.S. in regulating a practice which presents considerable risk to the environment. The impact of shale gas development on water resources in particular has shaped the greatest regulatory response in U.S. states and is therefore the focus of this contribution. With the development cycle posing impacts on water use, groundwater and surface water contamination, this paper aims to assess how effectively the law in the U.S. is mitigating these risks both at federal and state level. From an assessment of U.S. regulation, the paper attempts to highlight areas from which the UK could learn and adjust its own existing legal framework in order to better protect against the presented water risks posed by a UK shale gas industry. Whilst the UK has existing general legislation in place, it has yet to reach production levels as experienced in the U.S. and this paper examines how the U.S. has been forced to adapt water law and policy during active shale gas development. The paper first explains and questions the U.S. decision to exempt fracking from the Safe Drinking Water Act, a uniform federal regulation. It argues that the rationale for the exemption is unsatisfactory and submits that a similar reactive policy towards water law must be avoided by UK Governments. As a result of the exemption, this paper then assesses the efforts made by regulators of the two leading shale gas producing states; namely Pennsylvania and Texas, to protect water resources. It first highlights how both states have controlled the use of water before fracking takes place by comparing common law doctrines and public body governance. Second, it assesses how both states have been forced to adapt existing well construction requirements to protect groundwater during fracking. The analysis of state regulation concludes by highlighting the problems of current federal regulation over the treatment of untreated wastewaters, and how Pennsylvania has been forced to amend its law in response to water contamination. The final section offers a preliminary overview of the current UK legal framework applying to shale gas and the risks to water resources. It offers an initial assessment as to whether the UK should consider adapting its water law in light of the U.S. experience. This assessment concludes that whilst the existing UK legislation is to some extent more advanced than its American counterpart, its effectiveness ultimately remains untested and a revisit of the existing regulation is recommended.
{"title":"A Critical Assessment of the U.S. Environmental Regulation of Shale Gas Development. What Can Be Learned from the U.S. Experience?","authors":"Fraser M. Grant","doi":"10.2139/SSRN.2708619","DOIUrl":"https://doi.org/10.2139/SSRN.2708619","url":null,"abstract":"In light of an increasing intent by the UK Government to authorise hydraulic fracturing (also commonly known as ‘fracking’), this paper examines the experience of the U.S. in regulating a practice which presents considerable risk to the environment. The impact of shale gas development on water resources in particular has shaped the greatest regulatory response in U.S. states and is therefore the focus of this contribution. With the development cycle posing impacts on water use, groundwater and surface water contamination, this paper aims to assess how effectively the law in the U.S. is mitigating these risks both at federal and state level. From an assessment of U.S. regulation, the paper attempts to highlight areas from which the UK could learn and adjust its own existing legal framework in order to better protect against the presented water risks posed by a UK shale gas industry. Whilst the UK has existing general legislation in place, it has yet to reach production levels as experienced in the U.S. and this paper examines how the U.S. has been forced to adapt water law and policy during active shale gas development. The paper first explains and questions the U.S. decision to exempt fracking from the Safe Drinking Water Act, a uniform federal regulation. It argues that the rationale for the exemption is unsatisfactory and submits that a similar reactive policy towards water law must be avoided by UK Governments. As a result of the exemption, this paper then assesses the efforts made by regulators of the two leading shale gas producing states; namely Pennsylvania and Texas, to protect water resources. It first highlights how both states have controlled the use of water before fracking takes place by comparing common law doctrines and public body governance. Second, it assesses how both states have been forced to adapt existing well construction requirements to protect groundwater during fracking. The analysis of state regulation concludes by highlighting the problems of current federal regulation over the treatment of untreated wastewaters, and how Pennsylvania has been forced to amend its law in response to water contamination. The final section offers a preliminary overview of the current UK legal framework applying to shale gas and the risks to water resources. It offers an initial assessment as to whether the UK should consider adapting its water law in light of the U.S. experience. This assessment concludes that whilst the existing UK legislation is to some extent more advanced than its American counterpart, its effectiveness ultimately remains untested and a revisit of the existing regulation is recommended.","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-01-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115738943","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 this study we provide an up-to-date assessment of situations in which universities are bound by public procurement rules, as well as the combined changes that market-based university financing mechanisms can bring about in relation to the regulation of university procurement and to the treatment of the financial support they receive under the EU State aid rules. National differences in funding schemes are likely to trigger different answers in different EU jurisdictions. This study uses the situation of English universities as a case study.The first part focuses on the role of universities as buyers. The traditional position has been to consider universities bound by EU public procurement rules either as state authorities, or because they receive more than 50% public funding. In the latter case, recent changes in the funding structure can create opportunities for universities to free themselves from compliance with EU public procurement rules. In the second part, we assess the position of universities as providers. Here the traditional position has been that the State can directly mandate universities to conduct teaching and research activities. However, new EU legislation contains specific provisions about how and when teaching and research need to be procured if they are of an economic nature. Thus, accepting the exclusion of university services from procurement requirements as a rule of thumb is increasingly open to legal challenge. Finally, the study assesses if and in how far universities can benefit from exemptions for public-public cooperation or in-house arrangements either as sellers or buyers.
{"title":"When are Universities Bound by EU Public Procurement Rules as Buyers and Providers? - English Universities as a Case Study","authors":"Andrea Gideon, A. Sanchez-Graells","doi":"10.2139/SSRN.2692966","DOIUrl":"https://doi.org/10.2139/SSRN.2692966","url":null,"abstract":"In this study we provide an up-to-date assessment of situations in which universities are bound by public procurement rules, as well as the combined changes that market-based university financing mechanisms can bring about in relation to the regulation of university procurement and to the treatment of the financial support they receive under the EU State aid rules. National differences in funding schemes are likely to trigger different answers in different EU jurisdictions. This study uses the situation of English universities as a case study.The first part focuses on the role of universities as buyers. The traditional position has been to consider universities bound by EU public procurement rules either as state authorities, or because they receive more than 50% public funding. In the latter case, recent changes in the funding structure can create opportunities for universities to free themselves from compliance with EU public procurement rules. In the second part, we assess the position of universities as providers. Here the traditional position has been that the State can directly mandate universities to conduct teaching and research activities. However, new EU legislation contains specific provisions about how and when teaching and research need to be procured if they are of an economic nature. Thus, accepting the exclusion of university services from procurement requirements as a rule of thumb is increasingly open to legal challenge. Finally, the study assesses if and in how far universities can benefit from exemptions for public-public cooperation or in-house arrangements either as sellers or buyers.","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"42 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-11-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127295518","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 chapter examines and challenges the dominant academic portrayal of Anglo-American corporate law as an aspect of private law, and argues for a re-characterisation of the subject that reflects the centrality of public regulation to its core dynamics. It first explores the purported ‘privity’ (or privateness) of corporate law as it is most commonly understood and taught within the English-speaking world. It highlights an apparent ‘de-privatisation’ trend in Anglo-American corporate law over recent years, including the impact of increasing federalisation of corporate law in the United States under the Sarbanes-Oxley and Dodd-Frank reforms, and also the effect of increasing juridification of corporate law in the United Kingdom at both domestic and EU level. It notes that, insofar as these more publicly oriented aspects of corporate law have tended to be rationalised under the separate head of securities (or capital markets) law reforms, their existence has generally not been seen as threatening the continuing private dynamic of ‘corporate’ law in the narrowly defined sense. As against this, however, it argues that once the inherent artificiality of the conventional corporate/securities law divide is recognised, the prevailing academic characterisation of Anglo-American corporate law as a private phenomenon is rendered descriptively and normatively unsustainable.
{"title":"The De-Privatisation of Anglo-American Corporate Law?","authors":"Marc T. Moore","doi":"10.2139/ssrn.2698288","DOIUrl":"https://doi.org/10.2139/ssrn.2698288","url":null,"abstract":"This chapter examines and challenges the dominant academic portrayal of Anglo-American corporate law as an aspect of private law, and argues for a re-characterisation of the subject that reflects the centrality of public regulation to its core dynamics. It first explores the purported ‘privity’ (or privateness) of corporate law as it is most commonly understood and taught within the English-speaking world. It highlights an apparent ‘de-privatisation’ trend in Anglo-American corporate law over recent years, including the impact of increasing federalisation of corporate law in the United States under the Sarbanes-Oxley and Dodd-Frank reforms, and also the effect of increasing juridification of corporate law in the United Kingdom at both domestic and EU level. It notes that, insofar as these more publicly oriented aspects of corporate law have tended to be rationalised under the separate head of securities (or capital markets) law reforms, their existence has generally not been seen as threatening the continuing private dynamic of ‘corporate’ law in the narrowly defined sense. As against this, however, it argues that once the inherent artificiality of the conventional corporate/securities law divide is recognised, the prevailing academic characterisation of Anglo-American corporate law as a private phenomenon is rendered descriptively and normatively unsustainable.","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"53 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123688231","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 Hounga v Allen the majority of the Supreme Court employed a test for the application of the ex turpi causa defence involving the balancing of public policy arguments for and against allowing the defence. Although this has attracted some early academic support, this note will argue it is inconsistent with authority and principle. The later decision in Servier v Apotex does not address the Hounga decision directly but strongly endorses a more conservative approach to the ex turpi causa principle. The resulting tension between these two Supreme Court decisions is likely further to destabilise the law in this area. This note advances arguments in favour of the Servier approach, summarises both decisions in terms of their consistency with authority and considers the ways in which Servier may have limited the effects of Hounga.
在Hounga诉Allen案中，最高法院的多数法官采用了一项标准来适用依事实而为的辩护，涉及平衡支持和反对允许该辩护的公共政策论点。虽然这已经吸引了一些早期的学术支持，但本文认为这是不符合权威和原则的。后来在Servier v Apotex案中作出的裁决并没有直接涉及洪加案的裁决，但强烈支持一种更为保守的既成事实原则。这两项最高法院裁决之间的紧张关系可能会进一步破坏这一领域的法律。本文提出了支持施维雅方法的论点，总结了两种决定与权威的一致性，并考虑了施维雅可能限制了Hounga效果的方式。
{"title":"The Ex Turpi Causa Principle in Hounga and Servier","authors":"James C. Fisher","doi":"10.1111/1468-2230.12146","DOIUrl":"https://doi.org/10.1111/1468-2230.12146","url":null,"abstract":"In Hounga v Allen the majority of the Supreme Court employed a test for the application of the ex turpi causa defence involving the balancing of public policy arguments for and against allowing the defence. Although this has attracted some early academic support, this note will argue it is inconsistent with authority and principle. The later decision in Servier v Apotex does not address the Hounga decision directly but strongly endorses a more conservative approach to the ex turpi causa principle. The resulting tension between these two Supreme Court decisions is likely further to destabilise the law in this area. This note advances arguments in favour of the Servier approach, summarises both decisions in terms of their consistency with authority and considers the ways in which Servier may have limited the effects of Hounga.","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124746640","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}
Building on systems theory and the economics of law, this paper argues that evolutionary models can explain certain features of common law reasoning, in particular the way that the doctrine of precedent operates to combine stability with change. The common law can be modeled as an adaptive system which coevolves with its environment, which in this context consists of the political and economic systems of a given society. The common law responds to signals from the economy and from politics (‘cognitive openness’), while retaining its distinct mode of operation (‘operative closure’). A version of the variation, selection, retention algorithm operates at the level of legal decision-making. Theories of legal evolution which stress selection and variation at the expense of inheritance describe only part of the process of legal change and are prone to teleological accounts of evolution to efficiency. Focusing on inheritance or retention helps us to see that the common law can only be qualifiedly adaptive, at best, and that many inefficient rules will persist and survive even in the face of selective pressures. The relevance of this approach is illustrated by an examination of the leading decision in the English (and Scottish) law of tort (or delict), Donoghue v. Stevenson, and its implications for some influential accounts of legal evolution, including legal origin theory, are explored.
本文以系统理论和法律经济学为基础，认为进化模型可以解释普通法推理的某些特征，特别是先例原则将稳定与变化结合起来的运作方式。普通法可以被建模为一个与环境共同进化的适应性系统，在这种情况下，环境包括特定社会的政治和经济制度。普通法回应来自经济和政治的信号(“认知开放”)，同时保留其独特的操作模式(“操作封闭”)。变异、选择、保留算法的一个版本在法律决策层面运行。强调选择和变异而牺牲继承的法律进化理论只描述了法律变化过程的一部分，并且倾向于对效率进化的目的论解释。关注继承或保留有助于我们看到，普通法充其量只能有限度地适应，而许多效率低下的规则即使面临选择压力也会继续存在和生存。通过对英国(和苏格兰)侵权法(或侵权法)的主要判决——多诺霍诉史蒂文森案(Donoghue v. Stevenson)——的考察，说明了这种方法的相关性，并探讨了它对包括法律起源理论在内的一些有影响力的法律演变理论的影响。
{"title":"Law as Evolution, Evolution as Social Order: Common Law Method Reconsidered","authors":"S. Deakin","doi":"10.2139/ssrn.2640917","DOIUrl":"https://doi.org/10.2139/ssrn.2640917","url":null,"abstract":"Building on systems theory and the economics of law, this paper argues that evolutionary models can explain certain features of common law reasoning, in particular the way that the doctrine of precedent operates to combine stability with change. The common law can be modeled as an adaptive system which coevolves with its environment, which in this context consists of the political and economic systems of a given society. The common law responds to signals from the economy and from politics (‘cognitive openness’), while retaining its distinct mode of operation (‘operative closure’). A version of the variation, selection, retention algorithm operates at the level of legal decision-making. Theories of legal evolution which stress selection and variation at the expense of inheritance describe only part of the process of legal change and are prone to teleological accounts of evolution to efficiency. Focusing on inheritance or retention helps us to see that the common law can only be qualifiedly adaptive, at best, and that many inefficient rules will persist and survive even in the face of selective pressures. The relevance of this approach is illustrated by an examination of the leading decision in the English (and Scottish) law of tort (or delict), Donoghue v. Stevenson, and its implications for some influential accounts of legal evolution, including legal origin theory, are explored.","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"1971 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-08-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129964181","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 Caparo Industries Plc v. Dickman was a landmark case regarding the test for a duty of care. In this case, the question as to when duty of care arises in cases of negligence was discussed in detail. In specific, the question was whether the auditors of the Company Fidelity Plc owed a duty of care to the prospective and the current investors especially Caparo Industries (who had a majority shares of 91.8%) in case of any action taken by Caparo Industries in pursuance of the misleading accounts produced by the auditors. The auditors were thus sued for negligence. In furtherance of the same, the House of Lords laid down the three-fold test. The case has also effectively redefines the neighbourhood principle as laid down in the case of Donoghue v. Stevenson. It also briefly takes into account the other tests for establishing duty of care i.e. Anns test laid down in Anns v. Merton London Borough Council. The question in the current case was thus the scope of the assumption of responsibility, and what the limits of liability ought to be. This paper is a humble effort to throw light on the same.
{"title":"Case Analysis: Caparo Industries Plc v. Dickman","authors":"K. Satyan","doi":"10.2139/ssrn.2626806","DOIUrl":"https://doi.org/10.2139/ssrn.2626806","url":null,"abstract":"The Caparo Industries Plc v. Dickman was a landmark case regarding the test for a duty of care. In this case, the question as to when duty of care arises in cases of negligence was discussed in detail. In specific, the question was whether the auditors of the Company Fidelity Plc owed a duty of care to the prospective and the current investors especially Caparo Industries (who had a majority shares of 91.8%) in case of any action taken by Caparo Industries in pursuance of the misleading accounts produced by the auditors. The auditors were thus sued for negligence. In furtherance of the same, the House of Lords laid down the three-fold test. The case has also effectively redefines the neighbourhood principle as laid down in the case of Donoghue v. Stevenson. It also briefly takes into account the other tests for establishing duty of care i.e. Anns test laid down in Anns v. Merton London Borough Council. The question in the current case was thus the scope of the assumption of responsibility, and what the limits of liability ought to be. This paper is a humble effort to throw light on the same.","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"75 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-07-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127373459","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}
When an identifiable Court of Chancery emerged in the fifteenth century it supplemented the common law by using the notion of conscience. Its account of conscience derived from Thomist ethics, and was that the requirements of conscience in a particular fact situation were derivable from what the law of God and nature required to be done, which was objectively knowable. The English Reformation led to conscience losing its objectivity, because different understandings of scripture emerged from individuals having access to the Bible in English and interpreting it for themselves. in the course of the seventeenth century Chancery ceased to apply the notion of conscience directly, and increasingly articulated principles and rules that were applied to decide what behaviour was required. This process was assisted by numerous diverse contingent historical events and trends. Because all the equitable principles and rules developed in the context of an adversary system of litigation, with issues arrived at by pleading, the principles and rules did not take the form of a simple proposition that behaviour of a certain type was required in a certain situation. Rather, the principles and rules led to a conclusion that an equity, or claim, to require behaviour arose in a particular type of situation. Whether the court actually required that behaviour to occur depended on whether there was a better equity.
{"title":"The Development of Principles in Equity in the Seventeenth Century: An Introduction for Non-Lawyers","authors":"J. Campbell","doi":"10.4324/9781315452692-3","DOIUrl":"https://doi.org/10.4324/9781315452692-3","url":null,"abstract":"When an identifiable Court of Chancery emerged in the fifteenth century it supplemented the common law by using the notion of conscience. Its account of conscience derived from Thomist ethics, and was that the requirements of conscience in a particular fact situation were derivable from what the law of God and nature required to be done, which was objectively knowable. The English Reformation led to conscience losing its objectivity, because different understandings of scripture emerged from individuals having access to the Bible in English and interpreting it for themselves. in the course of the seventeenth century Chancery ceased to apply the notion of conscience directly, and increasingly articulated principles and rules that were applied to decide what behaviour was required. This process was assisted by numerous diverse contingent historical events and trends. Because all the equitable principles and rules developed in the context of an adversary system of litigation, with issues arrived at by pleading, the principles and rules did not take the form of a simple proposition that behaviour of a certain type was required in a certain situation. Rather, the principles and rules led to a conclusion that an equity, or claim, to require behaviour arose in a particular type of situation. Whether the court actually required that behaviour to occur depended on whether there was a better equity.","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"129 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-03-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123295509","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}
English courts are frequently criticised for their flexible approach to the finding of implied choice and the use of the escape clause in the context of the Rome I Regulation/Convention on the law applicable to contractual obligations. This paper argues that such criticism is misplaced. Based on empirical evidence, the article shows that those choice of law decisions are directly influenced by their procedural context and respond to the need to balance the multiple policy issues generated by international commercial litigation. In particular, English decisions need to be assessed in light of three distinct factors: the standard of proof required at different stages of the procedure in England, the national policy to promote England as a center for commercial dispute resolution and the incentives to export English law in certain strategic industries. The use of implied choice and the escape clause to achieve these ends constitutes a legitimate practice that does not frustrate the aims of the EU choice of law regime.
{"title":"Commercial Choice of Law in Context: Looking Beyond Rome","authors":"M. Fons","doi":"10.1111/1468-2230.12115","DOIUrl":"https://doi.org/10.1111/1468-2230.12115","url":null,"abstract":"English courts are frequently criticised for their flexible approach to the finding of implied choice and the use of the escape clause in the context of the Rome I Regulation/Convention on the law applicable to contractual obligations. This paper argues that such criticism is misplaced. Based on empirical evidence, the article shows that those choice of law decisions are directly influenced by their procedural context and respond to the need to balance the multiple policy issues generated by international commercial litigation. In particular, English decisions need to be assessed in light of three distinct factors: the standard of proof required at different stages of the procedure in England, the national policy to promote England as a center for commercial dispute resolution and the incentives to export English law in certain strategic industries. The use of implied choice and the escape clause to achieve these ends constitutes a legitimate practice that does not frustrate the aims of the EU choice of law regime.","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"85 3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127896615","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}
There is strong evidence that allowing some commuter railways to be converted into busways would provide higher capacity at lower cost, reduce fares for passengers and cut subsidies from taxpayers. A related policy of phasing out government support for the railways could save around £6 billion a year. It is estimated that busway fares would be at least 40 per cent cheaper than current rail fares, while on longer journeys all passengers could expect to be seated. In combination with the existing road network, busways would facilitate fast and direct services into city centres from suburbs and villages not currently linked by rail, increasing the choice of routes and reducing overall journey times for many commuters. Express coaches on congestion-free infrastructure could match the train for speed except on the longest journeys, and would also deliver much more frequent services. For a given traffic volume, busways would typically require far less land than rail, both at terminals and along routes. The sale of surplus land would further enhance the commercial case for conversion. The environmental gains could be substantial. High-volume bus/coach transport would appear to be more energy efficient than rail when the full impact of operating the networks is compared. Lower fares and a greater number of direct routes could also reduce car use. In some locations, spare busway capacity could be sold to other road users, diverting traffic from congested urban streets and delivering further environmental benefits.
{"title":"Paving Over the Tracks: A Better Use of Britain's Railways?","authors":"P. Withrington, R. Wellings","doi":"10.2139/ssrn.3903886","DOIUrl":"https://doi.org/10.2139/ssrn.3903886","url":null,"abstract":"There is strong evidence that allowing some commuter railways to be converted into busways would provide higher capacity at lower cost, reduce fares for passengers and cut subsidies from taxpayers. A related policy of phasing out government support for the railways could save around £6 billion a year. It is estimated that busway fares would be at least 40 per cent cheaper than current rail fares, while on longer journeys all passengers could expect to be seated. In combination with the existing road network, busways would facilitate fast and direct services into city centres from suburbs and villages not currently linked by rail, increasing the choice of routes and reducing overall journey times for many commuters. Express coaches on congestion-free infrastructure could match the train for speed except on the longest journeys, and would also deliver much more frequent services. For a given traffic volume, busways would typically require far less land than rail, both at terminals and along routes. The sale of surplus land would further enhance the commercial case for conversion. The environmental gains could be substantial. High-volume bus/coach transport would appear to be more energy efficient than rail when the full impact of operating the networks is compared. Lower fares and a greater number of direct routes could also reduce car use. In some locations, spare busway capacity could be sold to other road users, diverting traffic from congested urban streets and delivering further environmental benefits.","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"79 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128685136","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}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：