This paper argues that reform of the wrongful trading remedy in section 214 of the Insolvency Act 1986 is unlikely to yield significant increases in civil recovery for creditors of insolvent companies. The paper argues that the widely held view that procedural restrictions in the provision have unduly limited the application of the remedy are without foundation and, likewise, that there is little evidence that current modest levels of litigation under the provision demonstrate underperformance in the sanction relative to the scale of the misconduct against which it is directed. The paper draws on a wide range of analytical and empirical evidence to argue that the scope for application of the sanction is inherently limited by factors independent of the particular rules within the statutory remedy.
{"title":"What Can We Expect to Gain from Reforming the Insolvent Trading Remedy?","authors":"Richard Williams","doi":"10.1111/1468-2230.12106","DOIUrl":"https://doi.org/10.1111/1468-2230.12106","url":null,"abstract":"This paper argues that reform of the wrongful trading remedy in section 214 of the Insolvency Act 1986 is unlikely to yield significant increases in civil recovery for creditors of insolvent companies. The paper argues that the widely held view that procedural restrictions in the provision have unduly limited the application of the remedy are without foundation and, likewise, that there is little evidence that current modest levels of litigation under the provision demonstrate underperformance in the sanction relative to the scale of the misconduct against which it is directed. The paper draws on a wide range of analytical and empirical evidence to argue that the scope for application of the sanction is inherently limited by factors independent of the particular rules within the statutory remedy.","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"70 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126960519","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 paper seeks to address the current position of good faith within English contract law. It contradicts the proposition that good faith is a “contagious disease of alien origin” by instead suggesting that the principles introduced by good faith and relational contract theory are simply a mutative development on classical contract theory. In so doing, the paper suggests that these principles simply seek to uphold the objectives of classical contract theory of facilitating economic exchange, albeit by different means. It rationalizes this development according to the theory of creative destruction, that in dynamic processes, objectives may only be achieved by the destruction of the old processes. The paper further considers the suppositions introduced by this paper in both a theoretical and practical context in relation to English contract law jurisprudence.
{"title":"Good Faith in English Contract Law: A 'Contagious Disease of Alien Origin'","authors":"A. Sinanan","doi":"10.2139/ssrn.2654752","DOIUrl":"https://doi.org/10.2139/ssrn.2654752","url":null,"abstract":"This paper seeks to address the current position of good faith within English contract law. It contradicts the proposition that good faith is a “contagious disease of alien origin” by instead suggesting that the principles introduced by good faith and relational contract theory are simply a mutative development on classical contract theory. In so doing, the paper suggests that these principles simply seek to uphold the objectives of classical contract theory of facilitating economic exchange, albeit by different means. It rationalizes this development according to the theory of creative destruction, that in dynamic processes, objectives may only be achieved by the destruction of the old processes. The paper further considers the suppositions introduced by this paper in both a theoretical and practical context in relation to English contract law jurisprudence.","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-12-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127466262","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}
As border policing is no longer circumscribed to external borders and increasingly performed inland, in Britain migration work relies on the assistance of a range of unorthodox partners, including the public. The unearthing of the ‘community’ as a crucial partner to police a myriad of public safety issues, including migration, begs the question of what are the implications of mobilizing citizenship for law enforcement? This paper argues that enlisting the public in migration law enforcement yields important civic by-products: it ‘creates’ citizens and citizenship. It imparts civic training by instilling a sense of civic responsibility in law and order maintenance, and in doing so it intends to recreate social cohesion across a deeply fragmented society.
{"title":"Enlisting the Public in the Policing of Immigration","authors":"A. Aliverti","doi":"10.1093/BJC/AZU102","DOIUrl":"https://doi.org/10.1093/BJC/AZU102","url":null,"abstract":"As border policing is no longer circumscribed to external borders and increasingly performed inland, in Britain migration work relies on the assistance of a range of unorthodox partners, including the public. The unearthing of the ‘community’ as a crucial partner to police a myriad of public safety issues, including migration, begs the question of what are the implications of mobilizing citizenship for law enforcement? This paper argues that enlisting the public in migration law enforcement yields important civic by-products: it ‘creates’ citizens and citizenship. It imparts civic training by instilling a sense of civic responsibility in law and order maintenance, and in doing so it intends to recreate social cohesion across a deeply fragmented society.","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130791632","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 : 2014-11-01DOI: 10.1017/S0008197314000993
Hans Tjio
The English Court of Appeal in Fons Hf v Corporal Ltd. [2014] EWCA Civ 304 has recently confirmed that the phrase “debenture” when used in a charge agreement should be given its ordinary wide meaning. Some caution should be attached to this holding. Although the word “debenture” commonly appears in legislation or in private contractual documents, the precise meaning that should be ascribed to the word varies with the context.
英国上诉法院在Fons Hf v Corporal Ltd. [2014] EWCA Civ 304中最近确认，在押记协议中使用的短语“debenture”应赋予其通常的广义含义。对于这种持有，应该谨慎一些。虽然“债券”一词通常出现在立法或私人合同文件中，但该词的确切含义因上下文而异。
{"title":"The Unchanging ‘Debenture’","authors":"Hans Tjio","doi":"10.1017/S0008197314000993","DOIUrl":"https://doi.org/10.1017/S0008197314000993","url":null,"abstract":"The English Court of Appeal in Fons Hf v Corporal Ltd. [2014] EWCA Civ 304 has recently confirmed that the phrase “debenture” when used in a charge agreement should be given its ordinary wide meaning. Some caution should be attached to this holding. Although the word “debenture” commonly appears in legislation or in private contractual documents, the precise meaning that should be ascribed to the word varies with the context.","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132131845","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}
Since the early 2000s, the NHS has improved according to most measures of quality and performance. Survival rates for major diseases have increased, waiting lists have been shortened, and the prevalence of hospital infections has been reduced. This improvement has come from a very low base so that the performance of the NHS is still poor in international terms. For example, the UK ranks 20th out of 24 developed countries for cancer survival and 19th out of 23 for mortality amenable to healthcare. In league tables, the UK consistently ranks close to the post-communist countries of Central and Eastern Europe rather than to Western European countries. If the UK drew level with the 10th best-performing country in terms of mortality amenable to healthcare (Spain), at least 16 unnecessary deaths for every 100,000 inhabitants could be avoided each year – i.e. a total of about 10,000 deaths. The recent Commonwealth Fund study, which ranked the NHS well, has its merits, but it is structurally designed to favour an NHSstyle model of healthcare. The study’s limitations are perhaps best, albeit unintentionally, captured by The Guardian’s coverage of the report which stated: ‘The only serious black mark against the NHS was its poor record on keeping people alive.’ The UK comes 24th out of 30 high- and upper/middle-income countries for efficiency of the healthcare system. If the UK reached the efficiency level of the 5th best-performing country (Japan), life expectancy in the UK could be increased by more than two years without any additional healthcare spending and without people adopting healthier lifestyles. The reforms of the early 21st century gave well-performing hospitals more independence and introduced competition through a ‘payment by results’ formula. These reforms improved the service but they did not go far enough and have since stalled. The introduction of patient choice did lead patients to discriminate in favour of hospitals that had a better record. For example, postreform, a given increase in mortality after heart bypass operations led to a loss of market share for a hospital that was ten times greater than would have happened pre-reform. Scotland did not pursue the same healthcare reforms as England. The evidence shows that Scotland spends more per capita than England; it has larger numbers of hospital, dental, nursing, midwifery, health visiting, hospital management and support staff; and it has higher numbers of hospital beds and inpatient admissions. At the same time, Scotland has longer waiting times for inpatient and outpatient appointments, and longer ambulance response times. Scotland fares worse on outcome measures across the board. The intention of the reforms of the 2000s was that almost all healthcare spending would be channelled through the payment by results scheme and that the vast majority of hospitals would be Foundation Trusts. This has not materialised and the reforms need to be reinvigorated. Although non-NHS providers now
{"title":"Health Check: The NHS and Market Reforms","authors":"K. Niemietz","doi":"10.2139/ssrn.3903899","DOIUrl":"https://doi.org/10.2139/ssrn.3903899","url":null,"abstract":"Since the early 2000s, the NHS has improved according to most measures of quality and performance. Survival rates for major diseases have increased, waiting lists have been shortened, and the prevalence of hospital infections has been reduced. This improvement has come from a very low base so that the performance of the NHS is still poor in international terms. For example, the UK ranks 20th out of 24 developed countries for cancer survival and 19th out of 23 for mortality amenable to healthcare. In league tables, the UK consistently ranks close to the post-communist countries of Central and Eastern Europe rather than to Western European countries. If the UK drew level with the 10th best-performing country in terms of mortality amenable to healthcare (Spain), at least 16 unnecessary deaths for every 100,000 inhabitants could be avoided each year – i.e. a total of about 10,000 deaths. The recent Commonwealth Fund study, which ranked the NHS well, has its merits, but it is structurally designed to favour an NHSstyle model of healthcare. The study’s limitations are perhaps best, albeit unintentionally, captured by The Guardian’s coverage of the report which stated: ‘The only serious black mark against the NHS was its poor record on keeping people alive.’ The UK comes 24th out of 30 high- and upper/middle-income countries for efficiency of the healthcare system. If the UK reached the efficiency level of the 5th best-performing country (Japan), life expectancy in the UK could be increased by more than two years without any additional healthcare spending and without people adopting healthier lifestyles. The reforms of the early 21st century gave well-performing hospitals more independence and introduced competition through a ‘payment by results’ formula. These reforms improved the service but they did not go far enough and have since stalled. The introduction of patient choice did lead patients to discriminate in favour of hospitals that had a better record. For example, postreform, a given increase in mortality after heart bypass operations led to a loss of market share for a hospital that was ten times greater than would have happened pre-reform. Scotland did not pursue the same healthcare reforms as England. The evidence shows that Scotland spends more per capita than England; it has larger numbers of hospital, dental, nursing, midwifery, health visiting, hospital management and support staff; and it has higher numbers of hospital beds and inpatient admissions. At the same time, Scotland has longer waiting times for inpatient and outpatient appointments, and longer ambulance response times. Scotland fares worse on outcome measures across the board. The intention of the reforms of the 2000s was that almost all healthcare spending would be channelled through the payment by results scheme and that the vast majority of hospitals would be Foundation Trusts. This has not materialised and the reforms need to be reinvigorated. Although non-NHS providers now","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"242 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-10-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132316624","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 Murray-Darling Basin is Australia’s most important river system. It is home to over two million people, covers 14% of the country’s landmass and is of national significance socially, culturally, economically and environmentally. The governance network surrounding the Basin is complex involving multiple levels of governments (Commonwealth, state and territory) as well as numerous non-state actors, including individuals and communities living in the Basin, industry groups and environmentalists. The past three to four decades have seen increased levels of intergovernmental cooperation and coordination as nearly all actors have recognised the need for concerted action in order to avoid potentially catastrophic, long-term and irreversible environmental damage within the Basin. The decision to create the Murray Darling Basin Authority (MDBA) in September 2008 represented another step towards increased cooperation as it was the first time in Australian history that a dedicated Agency had been created with an explicit mandate to develop an integrated water management plan at the Basin level. This paper tracks ebbs and flows in the extent to which the MDBA was able to secure the political legitimacy that it required in order to successfully oversee the development of this Plan from the MDBA’s establishment in September 2008 through to the Plan’s commencement in November 2012. We analyse the MDBA’s capacity to develop political legitimacy during this time, which we conceptualise in terms of the cognitive, moral, and pragmatic legitimacy that the Agency was able to achieve within the wider community. We also show how the MDBA learned to become an effective metagovernor by shaping, developing and mending its political legitimacy. Thus, we are able to track how the MDBA was able to learn from its past failures at metagovernance. This article hence provides the first systematic empirical analysis of how delegated agencies can become effective metagovernors through direct attempts to foster their political legitimacy. More broadly, we conclude that to become effective (and to effectively become) metagovernors, organisations require stakeholders within and beyond the immediate governance network to accept their decisions (on whatever grounds) as appropriate and justified – i.e. legitimate – whilst also recognising that achieving such a status is more likely to be provisional, transitory and ephemeral, rather than lengthy, enduring and permanent. This is increasingly relevant, we argue, in late-modern societies where trust in elected or non-elected authorities is increasingly challenged.
{"title":"Becoming a Metagovernor: A Case Study of the Murray-Darling Basin Authority","authors":"P. Fawcett, Matthew Wood","doi":"10.2139/ssrn.2500644","DOIUrl":"https://doi.org/10.2139/ssrn.2500644","url":null,"abstract":"The Murray-Darling Basin is Australia’s most important river system. It is home to over two million people, covers 14% of the country’s landmass and is of national significance socially, culturally, economically and environmentally. The governance network surrounding the Basin is complex involving multiple levels of governments (Commonwealth, state and territory) as well as numerous non-state actors, including individuals and communities living in the Basin, industry groups and environmentalists. The past three to four decades have seen increased levels of intergovernmental cooperation and coordination as nearly all actors have recognised the need for concerted action in order to avoid potentially catastrophic, long-term and irreversible environmental damage within the Basin. The decision to create the Murray Darling Basin Authority (MDBA) in September 2008 represented another step towards increased cooperation as it was the first time in Australian history that a dedicated Agency had been created with an explicit mandate to develop an integrated water management plan at the Basin level. This paper tracks ebbs and flows in the extent to which the MDBA was able to secure the political legitimacy that it required in order to successfully oversee the development of this Plan from the MDBA’s establishment in September 2008 through to the Plan’s commencement in November 2012. We analyse the MDBA’s capacity to develop political legitimacy during this time, which we conceptualise in terms of the cognitive, moral, and pragmatic legitimacy that the Agency was able to achieve within the wider community. We also show how the MDBA learned to become an effective metagovernor by shaping, developing and mending its political legitimacy. Thus, we are able to track how the MDBA was able to learn from its past failures at metagovernance. This article hence provides the first systematic empirical analysis of how delegated agencies can become effective metagovernors through direct attempts to foster their political legitimacy. More broadly, we conclude that to become effective (and to effectively become) metagovernors, organisations require stakeholders within and beyond the immediate governance network to accept their decisions (on whatever grounds) as appropriate and justified – i.e. legitimate – whilst also recognising that achieving such a status is more likely to be provisional, transitory and ephemeral, rather than lengthy, enduring and permanent. This is increasingly relevant, we argue, in late-modern societies where trust in elected or non-elected authorities is increasingly challenged.","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-09-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125467946","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}
Weak economic growth and the resultant financial pressures have made post-retirement benefits a tempting target for cutbacks, in both the private and public sectors. Unlike pensions themselves, ancillary retirement benefits such as supplementary medical coverage are often vaguely defined. If they are part of the contract of employment, an attempt by the employer to reduce them represents a breach of contract. The employment contract is often quite informal, and there is room for debate about which promises were contractual. In two recent decisions in BC and Ontario, retirees were able to convince the court that the benefits were contractual. Each case hinges on its own facts and the evidence on past communications, and how they fit with the contractual principles of offer, acceptance and consideration. Part of the problem is that the details of these benefits are often presented to the employees only after they have accepted the position. This allows the employer to argue that they are non-binding, gratuitous promises. Under the unilateral contract principle, the employee can accept by performance. However, there is a question of whether any consideration is provided by the employees to make the contract binding. In this case, it can be argued that the economic hypothesis of the efficiency wage is relevant. This hypothesis posits that better remuneration positively influences employee loyalty and productivity, providing consideration in exchange for the employer's offer of the enhanced benefit.
{"title":"Informal Employment Contracts and the Battle over Retirement Benefits","authors":"P. Spiro","doi":"10.2139/SSRN.2399197","DOIUrl":"https://doi.org/10.2139/SSRN.2399197","url":null,"abstract":"Weak economic growth and the resultant financial pressures have made post-retirement benefits a tempting target for cutbacks, in both the private and public sectors. Unlike pensions themselves, ancillary retirement benefits such as supplementary medical coverage are often vaguely defined. If they are part of the contract of employment, an attempt by the employer to reduce them represents a breach of contract. The employment contract is often quite informal, and there is room for debate about which promises were contractual. In two recent decisions in BC and Ontario, retirees were able to convince the court that the benefits were contractual. Each case hinges on its own facts and the evidence on past communications, and how they fit with the contractual principles of offer, acceptance and consideration. Part of the problem is that the details of these benefits are often presented to the employees only after they have accepted the position. This allows the employer to argue that they are non-binding, gratuitous promises. Under the unilateral contract principle, the employee can accept by performance. However, there is a question of whether any consideration is provided by the employees to make the contract binding. In this case, it can be argued that the economic hypothesis of the efficiency wage is relevant. This hypothesis posits that better remuneration positively influences employee loyalty and productivity, providing consideration in exchange for the employer's offer of the enhanced benefit.","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"2012 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-08-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128935740","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}
European Banking Union (EBU) provides an important new context in which to examine how differentiation affects integration. This chapter considers: (1) the short to medium term appeal of EBU participation for Member States that do not use the euro (centripetal effects); and (ii) the potential over the same time horizon for EBU to lead to disorderly break-up of the EU (centrifugal effects). On (1), EBU pushes the boundaries of legal technology with a view to maximising the functional equivalence between euro Member States, whose participation is compulsory, and the non-euro Member States that choose to participate in EBU via a close cooperation agreement. The early indications that some non-euro Member States do want to join EBU notwithstanding certain lingering differences between their position and that of euro area Member States provide an encouraging sign as to the value of those efforts. But whilst fair participation terms are necessary, they are not a sufficient precondition to the exercise of the option to participate in EBU. Each non-euro Member State will make its own wide-ranging political calculations on whether there are net welfare gains from EBU and in doing so will take due account of the policy preferences of private and public stakeholders, which may pull in different directions. The full extent of the centripetal effect of EBU is therefore hard to predict but it is certainly a new force to be reckoned with. On (2), the chapter reaches a cautiously optimistic prognosis. The legal safeguards in EBU to address disintegration risks are not a permanent solution to the problem of certain Member States being intent upon remaining outside deeper integration in the monetary and economic sphere but nor are they merely fleeting or stopgap measures. The chapter identifies compelling economic incentives for all Member States to make these safeguards work and to resist destructive behaviour.
{"title":"European Banking Union and the EU Single Financial Market: More Differentiated Integration, or Disintegration?","authors":"Eilís Ferran","doi":"10.2139/SSRN.2426580","DOIUrl":"https://doi.org/10.2139/SSRN.2426580","url":null,"abstract":"European Banking Union (EBU) provides an important new context in which to examine how differentiation affects integration. This chapter considers: (1) the short to medium term appeal of EBU participation for Member States that do not use the euro (centripetal effects); and (ii) the potential over the same time horizon for EBU to lead to disorderly break-up of the EU (centrifugal effects). On (1), EBU pushes the boundaries of legal technology with a view to maximising the functional equivalence between euro Member States, whose participation is compulsory, and the non-euro Member States that choose to participate in EBU via a close cooperation agreement. The early indications that some non-euro Member States do want to join EBU notwithstanding certain lingering differences between their position and that of euro area Member States provide an encouraging sign as to the value of those efforts. But whilst fair participation terms are necessary, they are not a sufficient precondition to the exercise of the option to participate in EBU. Each non-euro Member State will make its own wide-ranging political calculations on whether there are net welfare gains from EBU and in doing so will take due account of the policy preferences of private and public stakeholders, which may pull in different directions. The full extent of the centripetal effect of EBU is therefore hard to predict but it is certainly a new force to be reckoned with. On (2), the chapter reaches a cautiously optimistic prognosis. The legal safeguards in EBU to address disintegration risks are not a permanent solution to the problem of certain Member States being intent upon remaining outside deeper integration in the monetary and economic sphere but nor are they merely fleeting or stopgap measures. The chapter identifies compelling economic incentives for all Member States to make these safeguards work and to resist destructive behaviour.","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"15 3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126927809","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 paper examines the relationship between what seem to be basic principles in contract law: "consideration need not be adequate" and "the rule against penalties applies only to sums payable on breach." The 'reluctant inspiration' lies in the recent Australian case of Andrews v. Australia and New Zealand Banking Group Ltd, which establishes that the absence of breach or an obligation to avoid the occurrence of an event upon which a sum becomes payable, does not render such sum incapable of being characterized as a penalty. This decision constitutes an unexpected divergence from the position in most other common law jurisdictions. What are its practical implications? Should we even engage in historical arguments given that the penalty jurisdiction evolved at the time where the law did not recognize enforceable promises to perform? The paper commences with broad observations regarding the enforceability of liquidated damages clauses, the increasingly commercial approach to evaluating whether a pre-estimate of loss is "genuine" and the necessity to treat sums payable on breach as part of the commercial bargain. The more liberal the attitude with regards to the amount (i.e. the higher the sum that can be stipulated), the more limited the effect of the rule against penalties. A liberal approach does not affect the contract breaker’s ability to invoke the rule but his ability to succeed. In combination with the description of the performance, the price and the limitation of liability (if any), sums payable on breach often point towards a transaction-specific risk allocation. In many instances such sums come dangerously close to primary obligations. And courts do not, as a matter of principle, review primary obligations. Once this is acknowledged, it becomes even more difficult to justify any attempts to expand the scope of the penalty jurisdiction beyond payments triggered by breach. After confronting some of the historical arguments made by the court in Andrews, the paper analyzes the recurring attempts to extend judicial review of contractual payments by creating "hybrid stipulations" – sums that are neither payable on breach nor in return for contractual performance. A difficult theoretical exercise awaits: should we create artificial divisions between contractual payments to establish whether they can be reviewed? Or should we finally acknowledge that all sums payable under a contract are part of the commercial bargain? On one hand, doctrinal integrity may point towards the need to vigorously defend the present form of the rule against penalties, including its (seemingly) strict limitation to sums payable on breach. On the other, some arguments made in Andrews and in other recent cases highlight the theoretical inconsistencies of its current formulation. After all, the "breach/no breach" dichotomy can also be regarded as a device for avoiding judicial scrutiny. At present, on the basis of Andrews alone it appears incorrect to use an institution th
{"title":"Subject to Review? Consideration, Liquidated Damages and the Penalty Jurisdiction","authors":"Dr Eliza Mik","doi":"10.2139/ssrn.2512582","DOIUrl":"https://doi.org/10.2139/ssrn.2512582","url":null,"abstract":"The paper examines the relationship between what seem to be basic principles in contract law: \"consideration need not be adequate\" and \"the rule against penalties applies only to sums payable on breach.\" The 'reluctant inspiration' lies in the recent Australian case of Andrews v. Australia and New Zealand Banking Group Ltd, which establishes that the absence of breach or an obligation to avoid the occurrence of an event upon which a sum becomes payable, does not render such sum incapable of being characterized as a penalty. This decision constitutes an unexpected divergence from the position in most other common law jurisdictions. What are its practical implications? Should we even engage in historical arguments given that the penalty jurisdiction evolved at the time where the law did not recognize enforceable promises to perform? The paper commences with broad observations regarding the enforceability of liquidated damages clauses, the increasingly commercial approach to evaluating whether a pre-estimate of loss is \"genuine\" and the necessity to treat sums payable on breach as part of the commercial bargain. The more liberal the attitude with regards to the amount (i.e. the higher the sum that can be stipulated), the more limited the effect of the rule against penalties. A liberal approach does not affect the contract breaker’s ability to invoke the rule but his ability to succeed. In combination with the description of the performance, the price and the limitation of liability (if any), sums payable on breach often point towards a transaction-specific risk allocation. In many instances such sums come dangerously close to primary obligations. And courts do not, as a matter of principle, review primary obligations. Once this is acknowledged, it becomes even more difficult to justify any attempts to expand the scope of the penalty jurisdiction beyond payments triggered by breach. After confronting some of the historical arguments made by the court in Andrews, the paper analyzes the recurring attempts to extend judicial review of contractual payments by creating \"hybrid stipulations\" – sums that are neither payable on breach nor in return for contractual performance. A difficult theoretical exercise awaits: should we create artificial divisions between contractual payments to establish whether they can be reviewed? Or should we finally acknowledge that all sums payable under a contract are part of the commercial bargain? On one hand, doctrinal integrity may point towards the need to vigorously defend the present form of the rule against penalties, including its (seemingly) strict limitation to sums payable on breach. On the other, some arguments made in Andrews and in other recent cases highlight the theoretical inconsistencies of its current formulation. After all, the \"breach/no breach\" dichotomy can also be regarded as a device for avoiding judicial scrutiny. At present, on the basis of Andrews alone it appears incorrect to use an institution th","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"60 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-07-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121946551","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 explores the notion of ‘integrity’ under copyright law by analysing examples of 'integrity-based objections' in the field of theatre. These objections typically involve playwrights objecting to changes being made to their copyright works by other parties, such as directors and actors. This analysis is deepened by the use of two concepts from the field of art theory – ‘aura’, as put forward by Walter Benjamin, and ‘trajectory’, as outlined by Bruno Latour and Adam Lowe. Finally, to shed further light on the issues raised, the work of Pierre Bourdieu is used to present new empirical research recently undertaken by the author in the field of UK theatre. This research demonstrates that ‘power struggles’ are a common feature of theatrical collaboration; that copyright is deeply implicated in the way such power struggles are conceived; and moreover, that resolving these power struggles successfully – including taking account of ‘integrity-based objections’ – is crucial to theatrical practice.
{"title":"Plays, Performances and Power Struggles – Examining Copyright's ‘Integrity’ in the Field of Theatre","authors":"Luke McDonagh","doi":"10.1111/1468-2230.12078","DOIUrl":"https://doi.org/10.1111/1468-2230.12078","url":null,"abstract":"This article explores the notion of ‘integrity’ under copyright law by analysing examples of 'integrity-based objections' in the field of theatre. These objections typically involve playwrights objecting to changes being made to their copyright works by other parties, such as directors and actors. This analysis is deepened by the use of two concepts from the field of art theory – ‘aura’, as put forward by Walter Benjamin, and ‘trajectory’, as outlined by Bruno Latour and Adam Lowe. Finally, to shed further light on the issues raised, the work of Pierre Bourdieu is used to present new empirical research recently undertaken by the author in the field of UK theatre. This research demonstrates that ‘power struggles’ are a common feature of theatrical collaboration; that copyright is deeply implicated in the way such power struggles are conceived; and moreover, that resolving these power struggles successfully – including taking account of ‘integrity-based objections’ – is crucial to theatrical practice.","PeriodicalId":255520,"journal":{"name":"English & Commonwealth Law eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128680243","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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