In East Asia Company Ltd v PT Satria Tirtatama Energindo, the Judicial Committee of the Privy Council clarified the relationship between ostensible authority and the indoor management rule. It also confirmed that third parties seeking to rely on the appearance of authority must have acted reasonably, and not just rationally or honestly.
在East Asia Company Ltd诉PT Satria Tirtatama Energindo案中，枢密院司法委员会澄清了表面权威与室内管理规则之间的关系。它还证实，寻求依靠权威表象的第三方必须采取合理的行动，而不仅仅是理性或诚实。
{"title":"No Magic to the Indoor Management Rule","authors":"Hans Tjio, D. Ang","doi":"10.2139/SSRN.3743849","DOIUrl":"https://doi.org/10.2139/SSRN.3743849","url":null,"abstract":"In East Asia Company Ltd v PT Satria Tirtatama Energindo, the Judicial Committee of the Privy Council clarified the relationship between ostensible authority and the indoor management rule. It also confirmed that third parties seeking to rely on the appearance of authority must have acted reasonably, and not just rationally or honestly.","PeriodicalId":266956,"journal":{"name":"Lloyd's Maritime and Commercial Law Quarterly","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2020-12-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125169036","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 “mistake of law” category of unjust enrichment might be a more obscure cause of action were it not for s.32(1)(c) of the Limitation Act 1980. That provision postpones the limitation period in cases of “mistake”. Recent landmark judgments have interpreted s.32(1)(c) to extend time for bringing actions in mistake of law until there has been an authoritative judicial pronouncement on the point of law in issue. This understanding of discoverability is arbitrary, jurisprudentially strained and internally inconsistent. It gives rise to serious problems in doctrine and policy. The courts should revisit their jurisprudence and consider the more coherent understandings of the discoverability principle that others have previously advanced.
{"title":"The Discoverability of Mistakes of Law","authors":"S. Beswick","doi":"10.2139/SSRN.3220062","DOIUrl":"https://doi.org/10.2139/SSRN.3220062","url":null,"abstract":"The “mistake of law” category of unjust enrichment might be a more obscure cause of action were it not for s.32(1)(c) of the Limitation Act 1980. That provision postpones the limitation period in cases of “mistake”. Recent landmark judgments have interpreted s.32(1)(c) to extend time for bringing actions in mistake of law until there has been an authoritative judicial pronouncement on the point of law in issue. This understanding of discoverability is arbitrary, jurisprudentially strained and internally inconsistent. It gives rise to serious problems in doctrine and policy. The courts should revisit their jurisprudence and consider the more coherent understandings of the discoverability principle that others have previously advanced.","PeriodicalId":266956,"journal":{"name":"Lloyd's Maritime and Commercial Law Quarterly","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2018-07-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122302755","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 seeks to refute several basic propositions concerning the law of contract interpretation that have recently been put forward by academic commentators, some of which gain implicit support from an extrajudicial speech by Lord Sumption earlier this year. These propositions are: the very purpose of a written contract dictates the existence of a plain meaning rule; evidence of prior negotiations is necessarily irrelevant; the explanation for allowing evidence of trade usage or custom to override plain meaning is that the document was not intended to contain the whole contract; the ICS principles are inherently flawed; the “assimilation” theory on which the principles are based is also flawed; recent decisions of the UK Supreme Court demonstrate that the principles have been abandoned and that, as a result, Lord Hoffmann’s legacy in the area of contract interpretation has ended; and this development is to be welcomed because it has the benefits of increased certainty, cost savings and greater protection for third parties. I. INTRODUCTION Lord Hoffmann’s well-known restatement of the principles of contract interpretation in Investors Compensation Scheme Ltd v West Bromwich Building Society (“ ICS ”) 1 has been contentious ever since it was pronounced in 1997. Although it was adopted on countless occasions by the courts, the reaction of some judges, commentators and commercial practitioners was hostile, and it now seems that their concerns have been heeded, at least to some extent. Thus, as I have discussed elsewhere, 2 recent developments suggest that a court should depart from what it considers to be the plain meaning of a contract only in truly exceptional circumstances, a main plank of what was generally considered to be the correct approach prior to ICS . Particularly important in this context is the reasoning of Lord Neuberger (with which Lord Sumption and Lord Hughes agreed) in Arnold v Britton . 3 Having found that the service charge clauses in 99-year leases of holiday chalets contained no ambiguity and that nothing had gone “significantly wrong” with
{"title":"Some Fallacies Concerning the Law of Contract Interpretation","authors":"D. McLauchlan","doi":"10.2139/SSRN.3123371","DOIUrl":"https://doi.org/10.2139/SSRN.3123371","url":null,"abstract":"This article seeks to refute several basic propositions concerning the law of contract interpretation that have recently been put forward by academic commentators, some of which gain implicit support from an extrajudicial speech by Lord Sumption earlier this year. These propositions are: the very purpose of a written contract dictates the existence of a plain meaning rule; evidence of prior negotiations is necessarily irrelevant; the explanation for allowing evidence of trade usage or custom to override plain meaning is that the document was not intended to contain the whole contract; the ICS principles are inherently flawed; the “assimilation” theory on which the principles are based is also flawed; recent decisions of the UK Supreme Court demonstrate that the principles have been abandoned and that, as a result, Lord Hoffmann’s legacy in the area of contract interpretation has ended; and this development is to be welcomed because it has the benefits of increased certainty, cost savings and greater protection for third parties. I. INTRODUCTION Lord Hoffmann’s well-known restatement of the principles of contract interpretation in Investors Compensation Scheme Ltd v West Bromwich Building Society (“ ICS ”) 1 has been contentious ever since it was pronounced in 1997. Although it was adopted on countless occasions by the courts, the reaction of some judges, commentators and commercial practitioners was hostile, and it now seems that their concerns have been heeded, at least to some extent. Thus, as I have discussed elsewhere, 2 recent developments suggest that a court should depart from what it considers to be the plain meaning of a contract only in truly exceptional circumstances, a main plank of what was generally considered to be the correct approach prior to ICS . Particularly important in this context is the reasoning of Lord Neuberger (with which Lord Sumption and Lord Hughes agreed) in Arnold v Britton . 3 Having found that the service charge clauses in 99-year leases of holiday chalets contained no ambiguity and that nothing had gone “significantly wrong” with","PeriodicalId":266956,"journal":{"name":"Lloyd's Maritime and Commercial Law Quarterly","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2017-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116685253","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}
{"title":"Testing the limits of interpretation","authors":"Liron Shmilovits","doi":"10.17863/CAM.27469","DOIUrl":"https://doi.org/10.17863/CAM.27469","url":null,"abstract":"","PeriodicalId":266956,"journal":{"name":"Lloyd's Maritime and Commercial Law Quarterly","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2016-02-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127778706","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 the decades following Armagas v. Mundogas, a leading case on some basic principles of agency law, the case has become surrounded by at least as many lukewarm lieutenants as stout defenders. There is in fact an understandable tension between not subjecting persons to transactions to which they have demonstrably not agreed and protecting the expectations of those who not unreasonably have trusted an intermediary accurately to report their principal’s willingness to transact. Protecting expectations, including “the security of contracting”, is generally more fashionable amongst lawyers now than it once was. This article addresses two of the holdings in Armagas (the need for a holding out by a (non-consenting) principal as to an agent’s authority before liability arises in either contract or the tort of negligent misstatement) and two of the dicta (being put on inquiry as to a lack of authority, and the unreliability of a course of dealing between the parties), and reviews the pronouncements of United Kingdom and England and Wales judges on each of them. The article seeks to reinforce Armagas on the first three, but not the last.
阿玛加斯诉蒙多加斯案(Armagas v. Mundogas)是关于代理法一些基本原则的重要案例。在该案之后的几十年里，围绕此案的不冷不热的副手和坚定的捍卫者至少一样多。事实上，在不让人们接受他们显然没有同意的交易与保护那些并非不合理地信任中介准确报告其委托人交易意愿的人的期望之间，存在着一种可以理解的紧张关系。保护期望，包括“合同的安全”，在律师中比以前更流行。本文地址的两个持有Armagas(需要坚持(non-consenting)主要代理的权威在合同或侵权责任出现之前的疏忽错报)和两个的格言(被放在调查缺乏权威性,和不可靠的交易双方的课程),和评论英国和英格兰和威尔士法官的声明他们每个人。本文试图在前三个方面加强Armagas，而不是最后一个。
{"title":"Some wear and tear on Armagas v Mundogas: the tension between having and wanting in the law of agency","authors":"Peter G. Watts","doi":"10.2139/SSRN.2714271","DOIUrl":"https://doi.org/10.2139/SSRN.2714271","url":null,"abstract":"In the decades following Armagas v. Mundogas, a leading case on some basic principles of agency law, the case has become surrounded by at least as many lukewarm lieutenants as stout defenders. There is in fact an understandable tension between not subjecting persons to transactions to which they have demonstrably not agreed and protecting the expectations of those who not unreasonably have trusted an intermediary accurately to report their principal’s willingness to transact. Protecting expectations, including “the security of contracting”, is generally more fashionable amongst lawyers now than it once was. This article addresses two of the holdings in Armagas (the need for a holding out by a (non-consenting) principal as to an agent’s authority before liability arises in either contract or the tort of negligent misstatement) and two of the dicta (being put on inquiry as to a lack of authority, and the unreliability of a course of dealing between the parties), and reviews the pronouncements of United Kingdom and England and Wales judges on each of them. The article seeks to reinforce Armagas on the first three, but not the last.","PeriodicalId":266956,"journal":{"name":"Lloyd's Maritime and Commercial Law Quarterly","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2015-01-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121110706","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 a means of effecting cross-border restructuring, a scheme of arrangement under section 425 of the UK Companies Act 1985 suffers from a serious defect in that it may not be binding on 'foreign creditors' in the following sense. As the question of whether an obligation has been discharged is governed by its proper law, creditors whose claims are governed by foreign law may, notwithstanding a section 425 scheme compromising their claims, enforce their claims against the company in a foreign court. Two methods have often been used in practice to overcome this defect so that the scheme is effective according to the law of the place in which the company's assets are located. First, if there are assets in the United States of America, the company may seek a permanent injunctive relief under section 304 of the US Bankruptcy Code in order to protect those assets. Second, if there are assets in jurisdictions (such as Australia and the Cayman Islands) that have an equivalent restructuring regime, parallel schemes of arrangement may be put forward in those jurisdictions. The recent decision of the Ontario Superior Court of Justice in Re Cavell Insurance Company opens up another avenue by which a section 425 scheme may be binding on foreign creditors, namely by enforcing the English scheme overseas as a judgment. Re Cavell also supports the position that an English court order sanctioning a scheme of arrangement is a judgment within the Council Regulation (EC) 44/2001.
{"title":"A new byword for cross-border restructuring: scheme of arrangement as judgment (Re Cavell)","authors":"Look Chan Ho","doi":"10.2139/SSRN.852824","DOIUrl":"https://doi.org/10.2139/SSRN.852824","url":null,"abstract":"As a means of effecting cross-border restructuring, a scheme of arrangement under section 425 of the UK Companies Act 1985 suffers from a serious defect in that it may not be binding on 'foreign creditors' in the following sense. As the question of whether an obligation has been discharged is governed by its proper law, creditors whose claims are governed by foreign law may, notwithstanding a section 425 scheme compromising their claims, enforce their claims against the company in a foreign court. Two methods have often been used in practice to overcome this defect so that the scheme is effective according to the law of the place in which the company's assets are located. First, if there are assets in the United States of America, the company may seek a permanent injunctive relief under section 304 of the US Bankruptcy Code in order to protect those assets. Second, if there are assets in jurisdictions (such as Australia and the Cayman Islands) that have an equivalent restructuring regime, parallel schemes of arrangement may be put forward in those jurisdictions. The recent decision of the Ontario Superior Court of Justice in Re Cavell Insurance Company opens up another avenue by which a section 425 scheme may be binding on foreign creditors, namely by enforcing the English scheme overseas as a judgment. Re Cavell also supports the position that an English court order sanctioning a scheme of arrangement is a judgment within the Council Regulation (EC) 44/2001.","PeriodicalId":266956,"journal":{"name":"Lloyd's Maritime and Commercial Law Quarterly","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2005-11-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131955734","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}
{"title":"THE UNITED NATIONS CONVENTION ON CONDITIONS FOR REGISTRATION OF SHIPS","authors":"S. Sturmey","doi":"10.1093/ulr/os-14.1.363","DOIUrl":"https://doi.org/10.1093/ulr/os-14.1.363","url":null,"abstract":"","PeriodicalId":266956,"journal":{"name":"Lloyd's Maritime and Commercial Law Quarterly","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"1987-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123283870","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 : 1900-01-01DOI: 10.1093/he/9780199565665.003.0022
Malcolm D Evans
{"title":"The Law of the Sea","authors":"Malcolm D Evans","doi":"10.1093/he/9780199565665.003.0022","DOIUrl":"https://doi.org/10.1093/he/9780199565665.003.0022","url":null,"abstract":"","PeriodicalId":266956,"journal":{"name":"Lloyd's Maritime and Commercial Law Quarterly","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115632300","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}
{"title":"The Rotterdam Rules","authors":"Anthony Diamond","doi":"10.4324/9781315850290","DOIUrl":"https://doi.org/10.4324/9781315850290","url":null,"abstract":"","PeriodicalId":266956,"journal":{"name":"Lloyd's Maritime and Commercial Law Quarterly","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124841668","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 : 1900-01-01DOI: 10.1007/978-3-642-55104-8_4
A. Dickinson
{"title":"Territory in the Rome I and Rome II Regulations","authors":"A. Dickinson","doi":"10.1007/978-3-642-55104-8_4","DOIUrl":"https://doi.org/10.1007/978-3-642-55104-8_4","url":null,"abstract":"","PeriodicalId":266956,"journal":{"name":"Lloyd's Maritime and Commercial Law Quarterly","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125742746","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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