Pub Date : 2018-01-02DOI: 10.1080/14729342.2018.1436262
Saloni Khanderia
ABSTRACT In the present era, most jurisdictions across the globe imbibe the subjective interpretation of party autonomy whereby the parties’ choice of governing law in an international commercial contract is unfettered by any geographical limitations. Indian private international law conforms to this international best practice and there are sufficient judicial dicta to indicate that party autonomy extends to the choice of any law—even if it has no nexus with the transaction in question. However, the blind adoption of the traditional common law principles has led to certain ambiguities in Indian private international law, in particular concerning the limits within which this freedom must operate. Furthermore, under the current principles of Indian private international law, it is unclear whether party autonomy in the choice of law also extends to the express selection of other rules of law or non-state norms. In such circumstances, it is suggested that the Indian courts could plausibly refer to the recommendations formulated by international organisations such as the Hague Conference on Private International Law’s Principles on Choice of Law in International Commercial Contracts (the Hague Principles) on these aspects for interpretational purposes if they encounter such anomalies in the future.
{"title":"Indian private international law vis-à-vis party autonomy in the choice of law","authors":"Saloni Khanderia","doi":"10.1080/14729342.2018.1436262","DOIUrl":"https://doi.org/10.1080/14729342.2018.1436262","url":null,"abstract":"ABSTRACT In the present era, most jurisdictions across the globe imbibe the subjective interpretation of party autonomy whereby the parties’ choice of governing law in an international commercial contract is unfettered by any geographical limitations. Indian private international law conforms to this international best practice and there are sufficient judicial dicta to indicate that party autonomy extends to the choice of any law—even if it has no nexus with the transaction in question. However, the blind adoption of the traditional common law principles has led to certain ambiguities in Indian private international law, in particular concerning the limits within which this freedom must operate. Furthermore, under the current principles of Indian private international law, it is unclear whether party autonomy in the choice of law also extends to the express selection of other rules of law or non-state norms. In such circumstances, it is suggested that the Indian courts could plausibly refer to the recommendations formulated by international organisations such as the Hague Conference on Private International Law’s Principles on Choice of Law in International Commercial Contracts (the Hague Principles) on these aspects for interpretational purposes if they encounter such anomalies in the future.","PeriodicalId":35148,"journal":{"name":"Oxford University Commonwealth Law Journal","volume":"18 1","pages":"1 - 15"},"PeriodicalIF":0.0,"publicationDate":"2018-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/14729342.2018.1436262","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41748150","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 : 2017-07-03DOI: 10.1080/14729342.2017.1360606
Moira Paterson, Maeve McDonagh
ABSTRACT This article commences with a discussion of the concept of public interest generally and more specifically within the context of the common law. It then considers the role of public interest tests in the Freedom of information (FOI) legislation of Commonwealth countries and presents a taxonomy of public interest tests in Commonwealth FOI legislation. It concludes by considering the merits of the ground-breaking developments in the approach to public interest tests in Australian FOI law and argues that there are valuable insights to be gained from the experience of this early FOI adopter.
{"title":"Freedom of information and the public interest: the Commonwealth experience","authors":"Moira Paterson, Maeve McDonagh","doi":"10.1080/14729342.2017.1360606","DOIUrl":"https://doi.org/10.1080/14729342.2017.1360606","url":null,"abstract":"ABSTRACT This article commences with a discussion of the concept of public interest generally and more specifically within the context of the common law. It then considers the role of public interest tests in the Freedom of information (FOI) legislation of Commonwealth countries and presents a taxonomy of public interest tests in Commonwealth FOI legislation. It concludes by considering the merits of the ground-breaking developments in the approach to public interest tests in Australian FOI law and argues that there are valuable insights to be gained from the experience of this early FOI adopter.","PeriodicalId":35148,"journal":{"name":"Oxford University Commonwealth Law Journal","volume":"17 1","pages":"189 - 210"},"PeriodicalIF":0.0,"publicationDate":"2017-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/14729342.2017.1360606","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43624213","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 : 2017-07-03DOI: 10.1080/14729342.2017.1404671
Mohammud Jaamae Hafeez-Baig, Jordan English
ABSTRACT In Nelson (City) v Mowatt 2017 SCC 8, the Supreme Court of Canada held that the inconsistent use test forms no part of the law of British Columbia. This note surveys and critiques the Court’s reasoning, and argues that the spirit of the decision should be followed in the other provinces. Using the law of Ontario as a case study, it argues that the existence of the inconsistent use test is contrary to both legal history and precedent.
在Nelson (City) v Mowatt 2017 SCC 8案中，加拿大最高法院认为不一致使用检验不构成不列颠哥伦比亚省法律的一部分。本说明对法院的推理进行了调查和批评，并认为其他省份应遵循该决定的精神。本文以安大略省的法律为例，论证了不一致使用检验的存在既违反了法律历史，也违反了先例。
{"title":"An inconsistency in the Canadian law of adverse possession? Nelson (City) v Mowatt 2017 SCC 8","authors":"Mohammud Jaamae Hafeez-Baig, Jordan English","doi":"10.1080/14729342.2017.1404671","DOIUrl":"https://doi.org/10.1080/14729342.2017.1404671","url":null,"abstract":"ABSTRACT In Nelson (City) v Mowatt 2017 SCC 8, the Supreme Court of Canada held that the inconsistent use test forms no part of the law of British Columbia. This note surveys and critiques the Court’s reasoning, and argues that the spirit of the decision should be followed in the other provinces. Using the law of Ontario as a case study, it argues that the existence of the inconsistent use test is contrary to both legal history and precedent.","PeriodicalId":35148,"journal":{"name":"Oxford University Commonwealth Law Journal","volume":"17 1","pages":"290 - 300"},"PeriodicalIF":0.0,"publicationDate":"2017-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/14729342.2017.1404671","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42880466","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 : 2017-07-03DOI: 10.1080/14729342.2017.1383769
Chia Ming Lee, Kenny Chng
ABSTRACT In a series of inconsistent decisions by the Singapore courts on contract formation in continuing negotiations cases, Lord Denning’s broad approach—which does away with the traditional offer and acceptance analysis—appears to have been simultaneously adopted and rejected. This article suggests that the continued uncertainty in Singapore regarding the scope of application of the traditional approach and Lord Denning’s approach arises from a conflation of both as being substantially similar. This article further argues that both approaches are conceptually and practically distinct. A better way forward for Singapore law in the area of contract formation in continuing negotiations cases, having regard to developments in English law and a comparative study of various approaches taken in international instruments and jurisdictions around the world, is to affirm the traditional approach as the default rule, subject to displacement in exceptional situations.
{"title":"Lord Denning’s influence on contract formation in Singapore—an overdue demise?","authors":"Chia Ming Lee, Kenny Chng","doi":"10.1080/14729342.2017.1383769","DOIUrl":"https://doi.org/10.1080/14729342.2017.1383769","url":null,"abstract":"ABSTRACT In a series of inconsistent decisions by the Singapore courts on contract formation in continuing negotiations cases, Lord Denning’s broad approach—which does away with the traditional offer and acceptance analysis—appears to have been simultaneously adopted and rejected. This article suggests that the continued uncertainty in Singapore regarding the scope of application of the traditional approach and Lord Denning’s approach arises from a conflation of both as being substantially similar. This article further argues that both approaches are conceptually and practically distinct. A better way forward for Singapore law in the area of contract formation in continuing negotiations cases, having regard to developments in English law and a comparative study of various approaches taken in international instruments and jurisdictions around the world, is to affirm the traditional approach as the default rule, subject to displacement in exceptional situations.","PeriodicalId":35148,"journal":{"name":"Oxford University Commonwealth Law Journal","volume":"17 1","pages":"211 - 237"},"PeriodicalIF":0.0,"publicationDate":"2017-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/14729342.2017.1383769","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46195981","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 : 2017-07-03DOI: 10.1080/14729342.2017.1351755
Lord Sumption
ABSTRACT This is the text of the inaugural Farquharson Lecture, delivered at Keble College, Oxford, on 8 May 2017. These Lectures were established by the Harris Society, the law society at Keble College, in honour of The Rt Hon Sir Donald Farquharson, an Old Member and Honorary Fellow of the College who served as a Lord Justice of Appeal between 1989 and 1995 and passed away in 2011. The 2017 Lecture discusses the approach to the interpretation of contracts adopted by the Supreme Court in a number of recent cases. It concludes that the Court may be retreating from the principles set out by Lord Hoffmann in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896. The Lecture is reproduced here with the kind permission of its organisers, Dr James Goudkamp and Mr Sebastian Bates, and appears as it was delivered, with only minor editorial changes.
摘要这是2017年5月8日在牛津大学凯布尔学院举行的法夸尔森首届讲座的正文。这些讲座由凯布尔学院的律师会哈里斯协会设立，以纪念该学院的老会员和荣誉院士唐纳德·法夸尔森爵士，他曾在1989年至1995年间担任上诉大法官，并于2011年去世。2017年的讲座讨论了最高法院在最近的一些案件中采用的合同解释方法。法院的结论是，法院可能会放弃霍夫曼勋爵在投资者赔偿计划有限公司诉West Bromwich Building Society[1998]1 WLR 896案中提出的原则。该讲座在组织者James Goudkamp博士和Sebastian Bates先生的善意许可下转载，并按原样发表，只做了微小的编辑修改。
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Pub Date : 2017-04-25DOI: 10.1080/14729342.2017.1357357
Kayleen Manwaring
ABSTRACT A ‘third wave’ of computing is emerging, encompassing technologies that have been called many names, including ubiquitous and pervasive computing, ambient intelligence, the Internet of Things and eObjects. This third wave will bring about significant socio-technical change, especially in the lives of consumers. With this change comes the possibility of a disconnection between consumer protection law and the new things, activities and relationships enabled by the third wave. This article analyses the attributes of these technologies, and identifies where consumers may face challenges relating to acquisition and interaction. These challenges are appraised in the light of common consumer protection principles, to identify whether likely detrimental outcomes for consumers may conflict with these principles. This article provides a basis for consumer protection lawyers in Commonwealth jurisdictions to examine whether or not their current consumer protection legislation can adequately provide appropriate consumer protection in the face of the third wave.
{"title":"Emerging information technologies: challenges for consumers","authors":"Kayleen Manwaring","doi":"10.1080/14729342.2017.1357357","DOIUrl":"https://doi.org/10.1080/14729342.2017.1357357","url":null,"abstract":"ABSTRACT A ‘third wave’ of computing is emerging, encompassing technologies that have been called many names, including ubiquitous and pervasive computing, ambient intelligence, the Internet of Things and eObjects. This third wave will bring about significant socio-technical change, especially in the lives of consumers. With this change comes the possibility of a disconnection between consumer protection law and the new things, activities and relationships enabled by the third wave. This article analyses the attributes of these technologies, and identifies where consumers may face challenges relating to acquisition and interaction. These challenges are appraised in the light of common consumer protection principles, to identify whether likely detrimental outcomes for consumers may conflict with these principles. This article provides a basis for consumer protection lawyers in Commonwealth jurisdictions to examine whether or not their current consumer protection legislation can adequately provide appropriate consumer protection in the face of the third wave.","PeriodicalId":35148,"journal":{"name":"Oxford University Commonwealth Law Journal","volume":"17 1","pages":"265 - 289"},"PeriodicalIF":0.0,"publicationDate":"2017-04-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/14729342.2017.1357357","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45488072","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 : 2017-03-01DOI: 10.1080/14729342.2017.1360604
Marcus Roberts
ABSTRACT When faced with unilateral contract variations, the lower courts in Australia and New Zealand have taken different paths regarding the requirement of consideration. In Australia, consideration is still required to be provided by the promisee, but what counts as consideration can include ‘practical benefits’. In New Zealand, the requirement for consideration for variation contracts has essentially been removed. This article will analyse both approaches. It will argue that the ‘practical benefit’ test for consideration is severely flawed, and that the removal of consideration as a requirement for variation contracts is also conceptually dangerous. A removal of consideration for one type of contract (variations) cannot be achieved without bringing it into question for all types of contracts. This article will argue (unfashionably perhaps) that there is still a place for consideration and that the pre-existing duty rule for variation contracts should be retained.
{"title":"Variation contracts in Australia and New Zealand: whither consideration?","authors":"Marcus Roberts","doi":"10.1080/14729342.2017.1360604","DOIUrl":"https://doi.org/10.1080/14729342.2017.1360604","url":null,"abstract":"ABSTRACT When faced with unilateral contract variations, the lower courts in Australia and New Zealand have taken different paths regarding the requirement of consideration. In Australia, consideration is still required to be provided by the promisee, but what counts as consideration can include ‘practical benefits’. In New Zealand, the requirement for consideration for variation contracts has essentially been removed. This article will analyse both approaches. It will argue that the ‘practical benefit’ test for consideration is severely flawed, and that the removal of consideration as a requirement for variation contracts is also conceptually dangerous. A removal of consideration for one type of contract (variations) cannot be achieved without bringing it into question for all types of contracts. This article will argue (unfashionably perhaps) that there is still a place for consideration and that the pre-existing duty rule for variation contracts should be retained.","PeriodicalId":35148,"journal":{"name":"Oxford University Commonwealth Law Journal","volume":"17 1","pages":"238 - 264"},"PeriodicalIF":0.0,"publicationDate":"2017-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/14729342.2017.1360604","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44263871","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 : 2017-01-02DOI: 10.1080/14729342.2017.1332902
D. Dagbanja
ABSTRACT The question of the legal and normative limitations on the competence of states to agree to a mechanism that enables foreign investors to bypass the jurisdiction of municipal courts, using legal rules that do not apply in municipal law, and thereby enabling arbitral tribunals to override municipal courts (the jurisdiction of which is original, appellate and final) has not been explored in the literature. I address this question with particular reference to Ghana. I dispute the conventional supposition that municipal courts are incapable of resolving investor-state disputes and question the justification for direct access to investor-state arbitration in customary international law. I argue that the local remedies rule and fundamental principles of Ghana’s legal system—in which the courts have jurisdiction over all legal disputes and persons, and in which separation of powers, rule of law, transparency and accountability are constitutionally entrenched—limit the state’s competence to agree to investor-arbitration.
{"title":"Constitutionalism and local remedies rule as limitations on investor-state arbitration: perspectives from Ghana","authors":"D. Dagbanja","doi":"10.1080/14729342.2017.1332902","DOIUrl":"https://doi.org/10.1080/14729342.2017.1332902","url":null,"abstract":"ABSTRACT The question of the legal and normative limitations on the competence of states to agree to a mechanism that enables foreign investors to bypass the jurisdiction of municipal courts, using legal rules that do not apply in municipal law, and thereby enabling arbitral tribunals to override municipal courts (the jurisdiction of which is original, appellate and final) has not been explored in the literature. I address this question with particular reference to Ghana. I dispute the conventional supposition that municipal courts are incapable of resolving investor-state disputes and question the justification for direct access to investor-state arbitration in customary international law. I argue that the local remedies rule and fundamental principles of Ghana’s legal system—in which the courts have jurisdiction over all legal disputes and persons, and in which separation of powers, rule of law, transparency and accountability are constitutionally entrenched—limit the state’s competence to agree to investor-arbitration.","PeriodicalId":35148,"journal":{"name":"Oxford University Commonwealth Law Journal","volume":"17 1","pages":"110 - 143"},"PeriodicalIF":0.0,"publicationDate":"2017-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/14729342.2017.1332902","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45502599","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 : 2017-01-02DOI: 10.1080/14729342.2017.1321817
James Goudkamp, J. Plunkett
ABSTRACT The recent decision of the High Court of Australia in Prince Alfred College v ADC is a landmark case in the law of vicarious liability. It is the first time in almost 14 years that the High Court has grappled in earnest with the second stage of the test for vicarious liability. This note observes that Prince Alfred College charts a far more restrictive course for the vicarious liability doctrine than has been followed by UK courts. It examines the different trajectories of the law in Australia and the UK and explores possible reasons for this difference.
摘要澳大利亚高等法院最近在Prince Alfred College诉ADC一案中作出的裁决是替代责任法中具有里程碑意义的一个案例。这是近14年来高等法院首次认真应对替代责任测试的第二阶段。本说明指出，阿尔弗雷德王子学院为替代责任原则制定了比英国法院更严格的课程。它考察了澳大利亚和英国法律的不同轨迹，并探讨了这种差异的可能原因。
{"title":"Vicarious liability in Australia: on the move?","authors":"James Goudkamp, J. Plunkett","doi":"10.1080/14729342.2017.1321817","DOIUrl":"https://doi.org/10.1080/14729342.2017.1321817","url":null,"abstract":"ABSTRACT The recent decision of the High Court of Australia in Prince Alfred College v ADC is a landmark case in the law of vicarious liability. It is the first time in almost 14 years that the High Court has grappled in earnest with the second stage of the test for vicarious liability. This note observes that Prince Alfred College charts a far more restrictive course for the vicarious liability doctrine than has been followed by UK courts. It examines the different trajectories of the law in Australia and the UK and explores possible reasons for this difference.","PeriodicalId":35148,"journal":{"name":"Oxford University Commonwealth Law Journal","volume":"17 1","pages":"162 - 170"},"PeriodicalIF":0.0,"publicationDate":"2017-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/14729342.2017.1321817","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47681991","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 : 2017-01-02DOI: 10.1080/14729342.2017.1328166
K. O’Regan
ABSTRACT This is the text of the 2016 Bram Fischer Memorial Lecture, delivered at Rhodes House, Oxford, on 27 October 2016. These Memorial Lectures honour Bram Fischer QC, a South African lawyer who defended Nelson Mandela and other leaders of the liberation movement when on trial for their lives, and who himself died in imprisonment in 1975. The 2016 Lecture discusses the themes of the famous Hart–Fuller debate and considers them in light of Bram Fischer’s life, in particular his membership of the Communist Party, his estreatment of bail, and his opposition to his consequent disbarring. The Lecture is reproduced here with the kind permission of its organisers, Lord Joel Joffe and Prof Nic Cheeseman, and appears as it was delivered, with only minor editorial changes.
{"title":"Fidelity to law: how Bram Fischer illuminates a perennial debate","authors":"K. O’Regan","doi":"10.1080/14729342.2017.1328166","DOIUrl":"https://doi.org/10.1080/14729342.2017.1328166","url":null,"abstract":"ABSTRACT This is the text of the 2016 Bram Fischer Memorial Lecture, delivered at Rhodes House, Oxford, on 27 October 2016. These Memorial Lectures honour Bram Fischer QC, a South African lawyer who defended Nelson Mandela and other leaders of the liberation movement when on trial for their lives, and who himself died in imprisonment in 1975. The 2016 Lecture discusses the themes of the famous Hart–Fuller debate and considers them in light of Bram Fischer’s life, in particular his membership of the Communist Party, his estreatment of bail, and his opposition to his consequent disbarring. The Lecture is reproduced here with the kind permission of its organisers, Lord Joel Joffe and Prof Nic Cheeseman, and appears as it was delivered, with only minor editorial changes.","PeriodicalId":35148,"journal":{"name":"Oxford University Commonwealth Law Journal","volume":"17 1","pages":"171 - 188"},"PeriodicalIF":0.0,"publicationDate":"2017-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/14729342.2017.1328166","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44209391","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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