Pub Date : 2023-03-01DOI: 10.1017/s0008197323000120
Pedro Schilling de Carvalho, Bobby V. Reddy
{"title":"CREDIT WHERE CREDIT'S DUE: THE SUPREME COURT TAKE ON DIRECTORS’ DUTIES AND CREDITORS’ INTERESTS","authors":"Pedro Schilling de Carvalho, Bobby V. Reddy","doi":"10.1017/s0008197323000120","DOIUrl":"https://doi.org/10.1017/s0008197323000120","url":null,"abstract":"","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2023-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41271884","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-03-01DOI: 10.1017/s0008197323000168
{"title":"CLJ volume 82 issue 1 Cover and Back matter","authors":"","doi":"10.1017/s0008197323000168","DOIUrl":"https://doi.org/10.1017/s0008197323000168","url":null,"abstract":"","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2023-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41563680","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-03-01DOI: 10.1017/S0008197323000041
Costas Douzinas
{"title":"The Redress of Law: Globalisation, Constitutionalism and Market Capture. By Emilios Christodoulidis. [Cambridge University Press, 2021. xiv + 592 pp. Hardback £95.00. ISBN 978-1-108-48703-0.]","authors":"Costas Douzinas","doi":"10.1017/S0008197323000041","DOIUrl":"https://doi.org/10.1017/S0008197323000041","url":null,"abstract":"","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2023-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43242639","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-03-01DOI: 10.1017/S0008197323000028
John Murphy
Writing extrajudicially, just a few years after delivering his leading speech in OBG Ltd. v Allan [2008] 1 A.C. 1, Lord Hoffmann suggested that, in the wake of that decision it was now fair to say that “the economic torts have run their course”. But despite their Lordships’ best endeavours in OBG to render the economic torts an area of interest to legal historians alone, cases involving these torts have continued to trouble courts all over the Commonwealth. Accordingly, in spite of what Lord Hoffmann hoped for in the wake of OBG, there is still a good deal of life left in these torts; and they continue to pose puzzles a-plenty. Against this background, a new book dealing with these actions was always destined to be eye-catching, especially when one bears in mind that the economic torts have been largely overlooked by most torts scholars. Furthermore, an especially attractive feature of this book is that it offers a collection of essays that is properly representative of the makeup of the private law community: there is none of the familiar dominance of contributions from male scholars based in England and Wales. However, as Shakespeare warned us several centuries ago, “all that glisters is not gold”. And that, I am afraid, is my overwhelming view of Economic Torts and Economic Wrongs. To be clear: the book is by no means a disaster. It comprises a collection of essays written by academics and practitioners located in various different jurisdictions and it undoubtedly contains some very worthwhile contributions. The problem, however, is that these are outnumbered by others that, for all their novelty, seem somehow to be misplaced. Before addressing the particular merits of some of the key essays in this volume, I think it is worth flagging up from the start what I take to be a serious omission in the editors’ introductory chapter. For this, instead of supplying a road map to the essays that follow, and a brief account of the arguments they advance, provides the reader with, in essence, a very swift (and therefore not very detailed) account of the way the economic torts have developed over the last century or so. Reference is made to a number of the landmark cases, and this is all well and good. But the reader is offered no guide to the particular conception of “economic torts” adopted by the editors. This is a great pity because, without such a guide, it is hard to fathom why quite a few of the essays that appear in this book should be thought to belong here. For all that there is well-known disagreement around the margins about just which torts comprise this particular family of actions, most torts scholars would consider some of the essays in this book as being fish out of water. There is, for example, an essay on defamation; and there are two on private nuisance. There is an essay concerned with “an award of equitable compensation against a defaulting fiduciary” (p. 232) and a related one entitled “Misfeasance by Directors”. There is also a con
{"title":"Economic Torts and Economic Wrongs. Edited by John Eldridge, Michael Douglas and Claudia Carr. [Oxford: Hart Publishing, 2021. xiv + 344 pp. Hardback £85.00. ISBN 978-1-50993-475-1.]","authors":"John Murphy","doi":"10.1017/S0008197323000028","DOIUrl":"https://doi.org/10.1017/S0008197323000028","url":null,"abstract":"Writing extrajudicially, just a few years after delivering his leading speech in OBG Ltd. v Allan [2008] 1 A.C. 1, Lord Hoffmann suggested that, in the wake of that decision it was now fair to say that “the economic torts have run their course”. But despite their Lordships’ best endeavours in OBG to render the economic torts an area of interest to legal historians alone, cases involving these torts have continued to trouble courts all over the Commonwealth. Accordingly, in spite of what Lord Hoffmann hoped for in the wake of OBG, there is still a good deal of life left in these torts; and they continue to pose puzzles a-plenty. Against this background, a new book dealing with these actions was always destined to be eye-catching, especially when one bears in mind that the economic torts have been largely overlooked by most torts scholars. Furthermore, an especially attractive feature of this book is that it offers a collection of essays that is properly representative of the makeup of the private law community: there is none of the familiar dominance of contributions from male scholars based in England and Wales. However, as Shakespeare warned us several centuries ago, “all that glisters is not gold”. And that, I am afraid, is my overwhelming view of Economic Torts and Economic Wrongs. To be clear: the book is by no means a disaster. It comprises a collection of essays written by academics and practitioners located in various different jurisdictions and it undoubtedly contains some very worthwhile contributions. The problem, however, is that these are outnumbered by others that, for all their novelty, seem somehow to be misplaced. Before addressing the particular merits of some of the key essays in this volume, I think it is worth flagging up from the start what I take to be a serious omission in the editors’ introductory chapter. For this, instead of supplying a road map to the essays that follow, and a brief account of the arguments they advance, provides the reader with, in essence, a very swift (and therefore not very detailed) account of the way the economic torts have developed over the last century or so. Reference is made to a number of the landmark cases, and this is all well and good. But the reader is offered no guide to the particular conception of “economic torts” adopted by the editors. This is a great pity because, without such a guide, it is hard to fathom why quite a few of the essays that appear in this book should be thought to belong here. For all that there is well-known disagreement around the margins about just which torts comprise this particular family of actions, most torts scholars would consider some of the essays in this book as being fish out of water. There is, for example, an essay on defamation; and there are two on private nuisance. There is an essay concerned with “an award of equitable compensation against a defaulting fiduciary” (p. 232) and a related one entitled “Misfeasance by Directors”. There is also a con","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2023-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41998636","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-03-01DOI: 10.1017/S0008197323000077
D. Campbell, D. Milman
Abstract It has been argued in previous work that Hedley Byrne v Heller addressed no actual mischief. In the case itself, the defendant's credit reference about Easipower Ltd. was neither a misstatement nor negligently given, and in general the indemnification of reliance on negligent statements is far better regulated by contract than it can possibly be by negligent misstatement. This paper expands on the significance of contract relative to tort in Hedley Byrne, but mainly argues that the mischief perceived by the claimant was caused by the operation of the statutory regime regulating Easipower's insolvency. This makes regarding Hedley Byrne as a necessary response to “the privity of contract fallacy” even more implausible.
{"title":"THE UNEXPLORED CONTRACT AND INSOLVENCY LAW DIMENSIONS OF HEDLEY BYRNE V HELLER","authors":"D. Campbell, D. Milman","doi":"10.1017/S0008197323000077","DOIUrl":"https://doi.org/10.1017/S0008197323000077","url":null,"abstract":"Abstract It has been argued in previous work that Hedley Byrne v Heller addressed no actual mischief. In the case itself, the defendant's credit reference about Easipower Ltd. was neither a misstatement nor negligently given, and in general the indemnification of reliance on negligent statements is far better regulated by contract than it can possibly be by negligent misstatement. This paper expands on the significance of contract relative to tort in Hedley Byrne, but mainly argues that the mischief perceived by the claimant was caused by the operation of the statutory regime regulating Easipower's insolvency. This makes regarding Hedley Byrne as a necessary response to “the privity of contract fallacy” even more implausible.","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2023-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45680123","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-03-01DOI: 10.1017/S0008197323000065
Lerong Lu
{"title":"Fintech Regulation in China: Principles, Policies and Practices. By Robin Hui Huang. [Cambridge University Press, 2021. xvi + 298 pp. Hardback £84.99. ISBN 978-1-108-48811-2.]","authors":"Lerong Lu","doi":"10.1017/S0008197323000065","DOIUrl":"https://doi.org/10.1017/S0008197323000065","url":null,"abstract":"","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2023-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46894466","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-03-01DOI: 10.1017/S000819732300003X
Nick Friedman
Following the publication of the United Nations Guiding Principles on Business and Human Rights (UNGPs) in 2011, and subsequent attempts at the national and international level to enforce human rights in the commercial sphere (like the UK’s Modern Slavery Act 2015), there has been renewed scholarly interest in the human rights duties of corporations. “Business and human rights” is a difficult area of inquiry: making sound policy proposals requires attention to the intersection of human rights, corporate law, tort, both private and public international law, and other legal fields besides. Moreover, it frequently requires a theory of these fields, including a theory about which field should be deployed to solve certain problems under certain conditions. Depending on the author’s aims, it can also require engagement with economics and with difficult philosophical issues concerning the nature of the corporation. This call for interdisciplinarity is what makes “business and human rights” an exciting field of study, but the difficulty of answering that call has created a body of scholarship that sometimes feels superficial or theoretically thin. In this regard, David Bilchitz is exceptional. Bilchitz is one of the leading figures in the field; he has been working on tricky pieces of the business and human rights puzzle for a long time. He has captured the depth and breadth of his knowledge in his latest book, Fundamental Rights and the Legal Obligations of Business, which is stunning in its sophisticated coverage of numerous legal fields as well as some associated areas of philosophy. The book is divided into three parts. After an initial chapter on the nature and purpose of the corporation (to which I return below), Part I describes and critiques various models of legal reasoning that courts have adopted to address human rights infringements by corporations. Most of the chapters in this part describe models which assume that human rights obligations bind only the state. Chapter 2 focuses on the state’s duty under international law to protect a person’s human rights from violation by a third party (say, another individual or a corporation). Chapter 3 describes the “indirect application model” that exists in some national legal systems. It is the domestic analogue of the international law duty to protect: once again, human rights obligations fall on states only, requiring them to enact legislation and develop their common law with a view to preventing human rights violations by corporate actors. Chapter 4 describes what Bilchitz calls the “expanding the state” model, which redraws the boundaries of the state to extend human rights obligations to at least some kinds of state-like corporations. The overriding critique of all three foregoing models is that they wrongly suppose that corporations themselves bear no human rights obligations, and so depend on circuitous reasoning to implicate the state in a corporation’s human rights abuses. By closely analysi
{"title":"Fundamental Rights and the Legal Obligations of Business. By David Bilchitz. [Cambridge University Press, 2022. xxii + 499 pp. Hardback £110.00. ISBN 978-1-108-84194-8.]","authors":"Nick Friedman","doi":"10.1017/S000819732300003X","DOIUrl":"https://doi.org/10.1017/S000819732300003X","url":null,"abstract":"Following the publication of the United Nations Guiding Principles on Business and Human Rights (UNGPs) in 2011, and subsequent attempts at the national and international level to enforce human rights in the commercial sphere (like the UK’s Modern Slavery Act 2015), there has been renewed scholarly interest in the human rights duties of corporations. “Business and human rights” is a difficult area of inquiry: making sound policy proposals requires attention to the intersection of human rights, corporate law, tort, both private and public international law, and other legal fields besides. Moreover, it frequently requires a theory of these fields, including a theory about which field should be deployed to solve certain problems under certain conditions. Depending on the author’s aims, it can also require engagement with economics and with difficult philosophical issues concerning the nature of the corporation. This call for interdisciplinarity is what makes “business and human rights” an exciting field of study, but the difficulty of answering that call has created a body of scholarship that sometimes feels superficial or theoretically thin. In this regard, David Bilchitz is exceptional. Bilchitz is one of the leading figures in the field; he has been working on tricky pieces of the business and human rights puzzle for a long time. He has captured the depth and breadth of his knowledge in his latest book, Fundamental Rights and the Legal Obligations of Business, which is stunning in its sophisticated coverage of numerous legal fields as well as some associated areas of philosophy. The book is divided into three parts. After an initial chapter on the nature and purpose of the corporation (to which I return below), Part I describes and critiques various models of legal reasoning that courts have adopted to address human rights infringements by corporations. Most of the chapters in this part describe models which assume that human rights obligations bind only the state. Chapter 2 focuses on the state’s duty under international law to protect a person’s human rights from violation by a third party (say, another individual or a corporation). Chapter 3 describes the “indirect application model” that exists in some national legal systems. It is the domestic analogue of the international law duty to protect: once again, human rights obligations fall on states only, requiring them to enact legislation and develop their common law with a view to preventing human rights violations by corporate actors. Chapter 4 describes what Bilchitz calls the “expanding the state” model, which redraws the boundaries of the state to extend human rights obligations to at least some kinds of state-like corporations. The overriding critique of all three foregoing models is that they wrongly suppose that corporations themselves bear no human rights obligations, and so depend on circuitous reasoning to implicate the state in a corporation’s human rights abuses. By closely analysi","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2023-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45279955","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-03-01DOI: 10.1017/s0008197323000016
Sarah Green
{"title":"The Province and Politics of the Economic Torts. By John Murphy. [London: Hart Publishing, 2022. xxx + 287 pp. Hardback £85.00. ISBN 978-1-50992-731-9.]","authors":"Sarah Green","doi":"10.1017/s0008197323000016","DOIUrl":"https://doi.org/10.1017/s0008197323000016","url":null,"abstract":"","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2023-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42438881","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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