Pub Date : 2022-07-03DOI: 10.1080/14729342.2022.2146946
Latika Vashist
ABSTRACT This article traces the judicial discourse in obscenity cases in (colonial and postcolonial) India (1860–2015). I demonstrate that law emerges as an affective site that mobilises the emotions of disgust (towards sex) and fear (of transgressive sexualities) to strengthen the dominant (hetero)normative sexual order. In this landscape of emotional adjudication, the ‘sexual’ invariably comes under erasure unless it meets the ‘community standard’ of honourable love.
{"title":"Disgust for the sexual: the emotional side of obscenity law in India","authors":"Latika Vashist","doi":"10.1080/14729342.2022.2146946","DOIUrl":"https://doi.org/10.1080/14729342.2022.2146946","url":null,"abstract":"ABSTRACT This article traces the judicial discourse in obscenity cases in (colonial and postcolonial) India (1860–2015). I demonstrate that law emerges as an affective site that mobilises the emotions of disgust (towards sex) and fear (of transgressive sexualities) to strengthen the dominant (hetero)normative sexual order. In this landscape of emotional adjudication, the ‘sexual’ invariably comes under erasure unless it meets the ‘community standard’ of honourable love.","PeriodicalId":35148,"journal":{"name":"Oxford University Commonwealth Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47757318","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 : 2022-01-02DOI: 10.1080/14729342.2022.2027700
Ben Cartwright
ABSTRACT The role of defences in breach of contract has been historically under-addressed: most treatises do not have a section dedicated to defences, and writers often doubt the utility of defences terminology. In this article, I argue that our understanding of breach of contract actions will be improved if we recognise that there are three types of arguments that can be made to escape the liability to pay damages for breach: denials, defences, and damages-limiting rules. Denials negate one or more of the elements of the action, defences are liability-defeating reasons external to the action, and damages-limiting rules affect the defendant’s liability to pay damages once a claim has been made out against them. After justifying this taxonomy from practical and philosophical perspectives, I then categorise several contract doctrines accordingly. By classifying doctrines in this way, the taxonomy can better illuminate the individual doctrines and the role of defences in contract more generally.
{"title":"Denials, defences, and damages-limiting rules in breach of contract","authors":"Ben Cartwright","doi":"10.1080/14729342.2022.2027700","DOIUrl":"https://doi.org/10.1080/14729342.2022.2027700","url":null,"abstract":"ABSTRACT The role of defences in breach of contract has been historically under-addressed: most treatises do not have a section dedicated to defences, and writers often doubt the utility of defences terminology. In this article, I argue that our understanding of breach of contract actions will be improved if we recognise that there are three types of arguments that can be made to escape the liability to pay damages for breach: denials, defences, and damages-limiting rules. Denials negate one or more of the elements of the action, defences are liability-defeating reasons external to the action, and damages-limiting rules affect the defendant’s liability to pay damages once a claim has been made out against them. After justifying this taxonomy from practical and philosophical perspectives, I then categorise several contract doctrines accordingly. By classifying doctrines in this way, the taxonomy can better illuminate the individual doctrines and the role of defences in contract more generally.","PeriodicalId":35148,"journal":{"name":"Oxford University Commonwealth Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42956515","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 : 2022-01-02DOI: 10.1080/14729342.2022.2058212
Ong Ken Wei
ABSTRACT Much ink has been spilt over the workings of irrationality review and its continuing relevance. Absent in large part, however, is an examination of these issues situated outside the English context. This article seeks to fill that gap from a Singaporean perspective. It will be argued that, as a ground of review, the principle of rationality is amply adequate, and that its retention as part of Singaporean administrative law allows for an articulation of our own approach towards judicial review. The observations and arguments made therein may be of interest to other common law jurisdictions which find themselves at a crossroads.
{"title":"Abolishing irrationality: a decision so unreasonable that no reasonable judiciary could ever come to it?","authors":"Ong Ken Wei","doi":"10.1080/14729342.2022.2058212","DOIUrl":"https://doi.org/10.1080/14729342.2022.2058212","url":null,"abstract":"ABSTRACT Much ink has been spilt over the workings of irrationality review and its continuing relevance. Absent in large part, however, is an examination of these issues situated outside the English context. This article seeks to fill that gap from a Singaporean perspective. It will be argued that, as a ground of review, the principle of rationality is amply adequate, and that its retention as part of Singaporean administrative law allows for an articulation of our own approach towards judicial review. The observations and arguments made therein may be of interest to other common law jurisdictions which find themselves at a crossroads.","PeriodicalId":35148,"journal":{"name":"Oxford University Commonwealth Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45249122","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 : 2022-01-02DOI: 10.1080/14729342.2022.2026629
Kenny Chng, Soon Wen Qi Andrea
ABSTRACT It is a general principle of administrative law that the courts will not compel a decision-maker to perform a public duty in a particular manner by way of a mandatory order. However, in CBB v Law Society of Singapore [2021] SGCA 6, the Singapore Court of Appeal notably accepted that an exception could be made to this general principle where there was only one reasonable way to perform the public duty in question. Beyond the decision’s obvious ramifications for the law relating to public law remedies in Singapore, this note argues that the Court of Appeal’s reasoning has significant implications for administrative law in Singapore more broadly. Indeed, the Court’s ruling is indicative of a shift in attitude towards the legality-merits distinction, a foundational principle of administrative law in Singapore.
{"title":"Revisiting remedies and the legality-merits distinction in Singapore administrative law: CBB v Law Society of Singapore [2021] SGCA 6","authors":"Kenny Chng, Soon Wen Qi Andrea","doi":"10.1080/14729342.2022.2026629","DOIUrl":"https://doi.org/10.1080/14729342.2022.2026629","url":null,"abstract":"ABSTRACT It is a general principle of administrative law that the courts will not compel a decision-maker to perform a public duty in a particular manner by way of a mandatory order. However, in CBB v Law Society of Singapore [2021] SGCA 6, the Singapore Court of Appeal notably accepted that an exception could be made to this general principle where there was only one reasonable way to perform the public duty in question. Beyond the decision’s obvious ramifications for the law relating to public law remedies in Singapore, this note argues that the Court of Appeal’s reasoning has significant implications for administrative law in Singapore more broadly. Indeed, the Court’s ruling is indicative of a shift in attitude towards the legality-merits distinction, a foundational principle of administrative law in Singapore.","PeriodicalId":35148,"journal":{"name":"Oxford University Commonwealth Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42602760","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 : 2022-01-02DOI: 10.1080/14729342.2022.2058213
Zamir R. Golestani
ABSTRACT In both tort and contract, the addition of a public body as a party to proceedings typically superimposes complex, policy-based considerations onto a given claim. This premise remains true in the context of a claim concerning restitution for unjust enrichment. The recent case of Surrey County Council v NHS Lincolnshire [2020] EWHC 3550 (QB) concerned a successful unjust enrichment claim by one public body against another to recover costs of specialist care for an autistic man which, although statutorily required, were not provided. The facts of the case and its decision provide fertile ground to explore the complexities that arise in an unjust enrichment claim where a public body is party to the proceedings. In particular, the reasoning of Thornton J encourages analysis of the policy-based reasons for restitution and the utility of the change of position defence in the context of an unjust enrichment claim against public bodies.
{"title":"Surrey County Council v NHS Lincolnshire Clinical Commissioning Group [2020] EWHC 3550 (QB) and the relationship between unjust enrichment and public bodies","authors":"Zamir R. Golestani","doi":"10.1080/14729342.2022.2058213","DOIUrl":"https://doi.org/10.1080/14729342.2022.2058213","url":null,"abstract":"ABSTRACT In both tort and contract, the addition of a public body as a party to proceedings typically superimposes complex, policy-based considerations onto a given claim. This premise remains true in the context of a claim concerning restitution for unjust enrichment. The recent case of Surrey County Council v NHS Lincolnshire [2020] EWHC 3550 (QB) concerned a successful unjust enrichment claim by one public body against another to recover costs of specialist care for an autistic man which, although statutorily required, were not provided. The facts of the case and its decision provide fertile ground to explore the complexities that arise in an unjust enrichment claim where a public body is party to the proceedings. In particular, the reasoning of Thornton J encourages analysis of the policy-based reasons for restitution and the utility of the change of position defence in the context of an unjust enrichment claim against public bodies.","PeriodicalId":35148,"journal":{"name":"Oxford University Commonwealth Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49158658","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 : 2022-01-02DOI: 10.1080/14729342.2022.2076969
A. W. See
ABSTRACT This article attempts to dispel the myth that a trustee holding land on trust for a minor could deal with it only with court approval. The source of this myth is a series of antiquated statutes suggesting that minors belong to a vulnerable group deserving of special protection. As the complex interpretive exercise reveals, much of the difficulty is in identifying the precise problem(s) intended to be addressed by these statutes, as this is not at all clear from their wording. Adding to the complexity is the location of the topic at the intersection between the old and the new, thus requiring attention to the divergences between Singaporean and post-1925 English laws, as well as the status of the general law within the Torrens system of title registration. As this discussion illustrates, the study of land law is often inextricably linked to the study of the history of land law.
{"title":"Dealing with a minor’s land in Singapore","authors":"A. W. See","doi":"10.1080/14729342.2022.2076969","DOIUrl":"https://doi.org/10.1080/14729342.2022.2076969","url":null,"abstract":"ABSTRACT This article attempts to dispel the myth that a trustee holding land on trust for a minor could deal with it only with court approval. The source of this myth is a series of antiquated statutes suggesting that minors belong to a vulnerable group deserving of special protection. As the complex interpretive exercise reveals, much of the difficulty is in identifying the precise problem(s) intended to be addressed by these statutes, as this is not at all clear from their wording. Adding to the complexity is the location of the topic at the intersection between the old and the new, thus requiring attention to the divergences between Singaporean and post-1925 English laws, as well as the status of the general law within the Torrens system of title registration. As this discussion illustrates, the study of land law is often inextricably linked to the study of the history of land law.","PeriodicalId":35148,"journal":{"name":"Oxford University Commonwealth Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44427817","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 : 2021-12-05DOI: 10.1080/14729342.2021.2008137
F. Gélinas, Zackary Goldford
ABSTRACT In the common law tradition, it has long been the case that a contract not backed by consideration is no contract at all. But this rule has been slowly washed away in various contexts, especially contract modifications, in various Commonwealth jurisdictions. In response to these developments, we argue that the consideration requirement has outlived its purpose and that it is time for it to be formally retired. We identify its purpose as ensuring fairness, voluntariness, and the integrity of consent, and we demonstrate that a collection of doctrinal tools have become increasingly available in recent years to fulfil this purpose. We conclude by discussing some of the harms that the consideration requirement causes. Since it does no good and causes some harm, it is time for it to go.
{"title":"More than a side-wind: rethinking the consideration requirement in Commonwealth contract law","authors":"F. Gélinas, Zackary Goldford","doi":"10.1080/14729342.2021.2008137","DOIUrl":"https://doi.org/10.1080/14729342.2021.2008137","url":null,"abstract":"ABSTRACT In the common law tradition, it has long been the case that a contract not backed by consideration is no contract at all. But this rule has been slowly washed away in various contexts, especially contract modifications, in various Commonwealth jurisdictions. In response to these developments, we argue that the consideration requirement has outlived its purpose and that it is time for it to be formally retired. We identify its purpose as ensuring fairness, voluntariness, and the integrity of consent, and we demonstrate that a collection of doctrinal tools have become increasingly available in recent years to fulfil this purpose. We conclude by discussing some of the harms that the consideration requirement causes. Since it does no good and causes some harm, it is time for it to go.","PeriodicalId":35148,"journal":{"name":"Oxford University Commonwealth Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-12-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49364173","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 : 2021-07-03DOI: 10.1080/14729342.2021.1984722
Jason Haynes, A. Hippolyte
ABSTRACT The Covid-19 pandemic has wreaked havoc on Caribbean countries. These countries have lost billions of dollars in foreign capital. Although the region's peoples are currently being vaccinated, the damage already caused by Covid-19 remains immeasurable and will likely continue for many years. Irrespective of whether vaccination results in herd immunity, Caribbean countries not only face the unenviable challenge of recalibrating their economies post-Covid-19, but also the prospect of being hauled before arbitral tribunals in respect of claims brought by investors alleging breaches of investor protection standards as a result of measures taken in response to the pandemic. To the extent that there is a real risk of claims of this nature arising in future, this article contends that Covid-19, as an unprecedented event, exposes the asymmetrical nature of the international investment regime, and its inability to fully countenance the domestic realities of developing countries that are confronted with existential threats.
{"title":"The Covid-19 pandemic and the potential for investor-state claims: a Caribbean perspective","authors":"Jason Haynes, A. Hippolyte","doi":"10.1080/14729342.2021.1984722","DOIUrl":"https://doi.org/10.1080/14729342.2021.1984722","url":null,"abstract":"ABSTRACT The Covid-19 pandemic has wreaked havoc on Caribbean countries. These countries have lost billions of dollars in foreign capital. Although the region's peoples are currently being vaccinated, the damage already caused by Covid-19 remains immeasurable and will likely continue for many years. Irrespective of whether vaccination results in herd immunity, Caribbean countries not only face the unenviable challenge of recalibrating their economies post-Covid-19, but also the prospect of being hauled before arbitral tribunals in respect of claims brought by investors alleging breaches of investor protection standards as a result of measures taken in response to the pandemic. To the extent that there is a real risk of claims of this nature arising in future, this article contends that Covid-19, as an unprecedented event, exposes the asymmetrical nature of the international investment regime, and its inability to fully countenance the domestic realities of developing countries that are confronted with existential threats.","PeriodicalId":35148,"journal":{"name":"Oxford University Commonwealth Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48901530","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 : 2021-07-03DOI: 10.1080/14729342.2021.1991147
M. Handler, Robert Burrell
ABSTRACT It would be natural to suppose that once a trade mark has been expunged from the trade marks register it would cease to have legal force or effect. For many years this was indeed the position in British Commonwealth countries. However, the New Zealand Supreme Court has recently held that a trade mark whose registration has been revoked can still block a subsequent application for registration in certain circumstances. In so doing the New Zealand Supreme Court followed an earlier decision of the Singapore Court of Appeal that was to much the same effect. This article argues that these decisions are problematic on policy grounds and rest on faulty doctrinal premises. It is important to recognise these issues now, not least because there is a danger that this approach may spread to other jurisdictions, including the EU, Hong Kong, and the UK.
{"title":"Zombie marks invade New Zealand! How scared should the rest of the world be?","authors":"M. Handler, Robert Burrell","doi":"10.1080/14729342.2021.1991147","DOIUrl":"https://doi.org/10.1080/14729342.2021.1991147","url":null,"abstract":"ABSTRACT It would be natural to suppose that once a trade mark has been expunged from the trade marks register it would cease to have legal force or effect. For many years this was indeed the position in British Commonwealth countries. However, the New Zealand Supreme Court has recently held that a trade mark whose registration has been revoked can still block a subsequent application for registration in certain circumstances. In so doing the New Zealand Supreme Court followed an earlier decision of the Singapore Court of Appeal that was to much the same effect. This article argues that these decisions are problematic on policy grounds and rest on faulty doctrinal premises. It is important to recognise these issues now, not least because there is a danger that this approach may spread to other jurisdictions, including the EU, Hong Kong, and the UK.","PeriodicalId":35148,"journal":{"name":"Oxford University Commonwealth Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43454008","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 : 2021-07-03DOI: 10.1080/14729342.2021.1991648
M. Moore
ABSTRACT This paper traces the Canadian doctrine of unconscionability’s distant voyage in Uber Technologies v Heller 2020 SCC 16 from the familiar waters of the English ‘unconscionable bargains’ family of doctrines, found in various common law jurisdictions. Since the 19th century, those jurisdictions had included Canada. However, in this important decision of the Supreme Court of Canada, the position of the doctrine shifted significantly. Its movement can be identified as towards the American doctrine of unconscionability, a distinct doctrine not part of the English family, based rather on §2-302 of the Uniform Commercial Code. Court-watchers in the United Kingdom and other Commonwealth jurisdictions wondering whether this reinterpretation of unconscionability might represent a model for progressive reform should understand why it does not. Adrift between two doctrines with different purposes, it is insufficiently suited to serve either. Meanwhile, it may disrupt business reliance on standard form contracts, and cause tremendous contractual instability.
{"title":"The HMCS Unconscionability: adrift in the Atlantic","authors":"M. Moore","doi":"10.1080/14729342.2021.1991648","DOIUrl":"https://doi.org/10.1080/14729342.2021.1991648","url":null,"abstract":"ABSTRACT This paper traces the Canadian doctrine of unconscionability’s distant voyage in Uber Technologies v Heller 2020 SCC 16 from the familiar waters of the English ‘unconscionable bargains’ family of doctrines, found in various common law jurisdictions. Since the 19th century, those jurisdictions had included Canada. However, in this important decision of the Supreme Court of Canada, the position of the doctrine shifted significantly. Its movement can be identified as towards the American doctrine of unconscionability, a distinct doctrine not part of the English family, based rather on §2-302 of the Uniform Commercial Code. Court-watchers in the United Kingdom and other Commonwealth jurisdictions wondering whether this reinterpretation of unconscionability might represent a model for progressive reform should understand why it does not. Adrift between two doctrines with different purposes, it is insufficiently suited to serve either. Meanwhile, it may disrupt business reliance on standard form contracts, and cause tremendous contractual instability.","PeriodicalId":35148,"journal":{"name":"Oxford University Commonwealth Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45826419","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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