Liverpool Law Review最新文献

Iran and the United States (US) have resorted to the International Court of Justice (ICJ) on five occasions to settle their disputes. The latest dispute was initiated by Iran and pertains to US’s decision of withdrawal from the Joint Comprehensive Plan of Action (JCPOA) agreement and re-imposition of sanctions on Iran, including its nationals and companies. In this brief critique, the authors have analysed the preliminary objections and the ICJ’s approach in deciding the dispute. The authors have noticed that the ICJ digressed from its earlier decisions which involved the Treaty of Amity 1955 between Iran and the US. It is also to be noted that the ICJ has not substantiated its deviation with analytical observation. Also, it is opined that although the international adjudication lacks a system of precedent, it is the sacrosanct duty of the ICJ to establish a coherent jurisprudence in the interest of justice, which the ICJ has consciously neglected to achieve in this present dispute.

Minority is well established as a form of legal incapacity across jurisdictions and laws. Some countries grant minors with limited capacity to contract while others consider all minors' contracts to be void. These rules were laid down in the pre-digital age. Minors today are entering into more and varied transactions than the generations before them, be it shopping on e-retail websites, creating social media accounts, or the more traditional employment contracts. This paper examines how the three jurisdictions of England, India and South Africa deal with minor contracts in the digital age. While South Africa permits minors above the age of seven years to enter into contracts with parental assistance, the English and Indian position is that minor contracts are unenforceable against minors, unless they are 'contracts for necessaries' or contracts for the benefit of the minor. Judicial interpretation of these categories has been fluid and indeterminate, creating its own set of problems. This paper argues from the Indian standpoint that the current understanding is inadequate to address the issues that will arise from the mismatch between law (where minority is almost synonymous with incapacity) and reality (where minors are increasingly entering into contracts). The author suggests that the definition for minority for contractual liability should be graded after the model of criminal liability and demonstrates that there are some, albeit imperfect, gains to be had from the South African system.

The protection which the law gives animals is based on a fundamentally different philosophy to that it gives people. With people, causing significant physical harm is nearly always prohibited, irrespective of any benefit which might accrue to others. By contrast, animals' essential interests are weighed against a wide range of human interests, and usually they lose out. That routinely means that significant harm is inflicted on them, quite legally. Many consider that there is therefore a pressing need for lawyers committed to maximising the protection which animals receive. This article discusses the numerous ways in which lawyers can help animal protection organisations realise their goals, with two case studies. The first relates to the global trade in seal products and the second to the legal status of domesticated animals as chattels and the implications this has for their welfare.

The experience of Covid-19 has taught us many things, not least the consequence of what John Milton termed 'gibberish law'. Law drafted amidst the 'throng and noises of irrational men'. The closer purpose of this article is the attempt to regulate 'gatherings' during the coronavirus pandemic, including the re-invention of a bespoke crime of 'mingling'. A jurisprudential curiosity which, it will be suggested, is symptomatic of a broader malaise. An assault on the integrity of the rule of law which is only too familiar; much, it might be said, like the arrival of a pandemic. The first part of the article will revisit three particular gatherings, in part to debunk the myth of the unprecedented. But also to introduce some themes, literal and figurative, of masking and muddle. The conjuring of what Shakespeare called 'rough magic'. The second part of the article will then take a closer look at the jurisprudential consequence of this conjuration. The final part will venture some larger concerns, about the crisis of parliamentary democracy in the 'age of Covid'.

The introduction of the EU Unfair Terms in Consumer Contracts Directive in the legal system of Cyprus was the first instrument specifically dealing with the problems that arise with standard form contracts and the issue of consent. However, the Directive only generated caselaw approximately twenty years after its adoption, whereas the principle-based approach of the test for unfairness (significant imbalance test and good faith requirement) was interpreted in the common law notion of absence of dishonesty. Hence, Cypriot courts interpreted good faith as "honesty in fact". Under this interpretation, it seems that both procedural and substantive unfairness are not captured under the test. It is understood that whereas the statute codifying the contract law of Cyprus has incorporated the [civil law] will theory of contracts, no tools for the invalidation and scrutiny of terms that may be deemed unfair were provided. The statute placed considerable emphasis on procedural fairness, however, Cypriot courts seemed unwilling to adapt their approach and deal with the problems that standard form contracting poses, failing also to follow the developments in the UK. Thus, even after the adoption of EU consumer law directives, Cypriot courts show an unwillingness to scrutinize the parties' initial allocation of risk, even though such allocation was done in a standardized manner by one party. Despite the mixed character of the legal system, consumer law directives and the introduction of content control can be seen as legal irritants.

One of the key legal questions that COVID-19 has raised relates to the status of the traditional contractual doctrine of frustration. The pandemic and the ongoing lockdowns across the globe have made it difficult for many contracts to perform. At the same time, there is a deep doctrinal and conceptual confusion with respect to the very essentials of this doctrine and its remedy - i.e., what happens after an adjudicative tribunal declares that a given contract has been frustrated. The paper offers a unified conceptual account of the frustration doctrine and claims that both the doctrine and its remedy crystallize a single unifying idea.

The law of contract is changing. "Good faith" and "relational contracts" are used by parties more than ever before in commercial disputes. Yet, their definition and what it really means to act in good faith are still unsettled in the UK and Australia, reducing the (judicial and doctrinal) utility and impact of such conceptual tools. In contrast, the construction industry is trying to move forward in policy terms. Over the last 30 years, industry-led initiatives have been working to improve collaboration. In the UK and Australia, new collaborative frameworks contain express provisions asking parties to act with mutual trust and cooperation among other collaborative schemes. Examination of the judicial approach and industry initiatives demonstrates that there is - underpinning both - a project-centric approach (even if that is yet to be fully recognised or articulated). It is the aim of this paper to further articulate this understanding by examining at the judicial and industry positions in the UK and Australia.

The 1951 Refugee Convention and the 1967 Protocol are the only binding international instruments under which the parties of the instruments agree to protect refugees. However, there are gaps in the existing protection mechanisms for refugees at sea. Moreover, the South East Asian States are non-parties to the 1951 Refugee Convention; the States argue that they have no treaty obligation to accept Rohingya boat refugees. In this context, this article revisits the traditional view of 'soft laws', suggesting a fresh look at 'soft laws' regarding boat refugees. This article argues that even though the States are non-parties to international refugee law, the South East Asian States are members of the UN General Assembly, IMO, and ExCom. These international bodies have adopted numerous resolutions, guidelines and conclusions on refugee protection at sea; therefore, the States have international obligations to boat refugees according to Article 38(1)(C) of the Statute of the International Court of Justice 1945, the general principle of international law.

The Constitution of the Federal Republic of Nigeria 1999 (as amended), guarantees the right to freedom from discrimination. Similarly, the Land Use Act 2004, which is the principal legislation governing land matters in Nigeria, endorses a right of occupancy system that allows all genders to inherit land, without discrimination. Further, Nigeria is a State party to several regional and international instruments advancing the principles of non-discrimination and gender equality, notably the African Charter on Human and Peoples’ Rights 1986, and the Convention on the Elimination of All Forms of Discrimination against Women 1979. Moreover, the various courts of law in Nigeria have lately exhibited strong commitments towards ending discrimination and gender inequality in all its forms in the country. Nonetheless, gender-based restrictions on women’s land inheritance rights persists. This study attributes these challenges to the combined negative influences of weak law enforcement; die-hard socio-economic, cultural and religious norms; and poor knowledge regarding the right to freedom from discrimination on the part of many Nigerian women and girls. Inter alia, it recommends stricter law enforcement regime, as well as educating Nigerian women and girls, particularly those at the grassroots, on the right to freedom from discrimination as viable tools for overcoming the challenges.