Pub Date : 2020-08-19DOI: 10.38127/uqlj.v39i2.5029
Stephen Lee
There are a variety of instances when courts exercising equitable jurisdiction have recognised and enforced foreign judgments. But when those instances are acknowledged at all, they have tended to be consigned to discrete subject areas and not treated as examples of a wider genus. A new approach is required to keep apace with the needs of an increasingly borderless society. In this article, the author collects in one place the established instances of equitable intervention and argues that they are merely illustrations of a comprehensive equitable jurisdiction to recognise and enforce foreign judgments.
{"title":"The Equitable Jurisdiction to Enforce Foreign Judgments","authors":"Stephen Lee","doi":"10.38127/uqlj.v39i2.5029","DOIUrl":"https://doi.org/10.38127/uqlj.v39i2.5029","url":null,"abstract":"There are a variety of instances when courts exercising equitable jurisdiction have recognised and enforced foreign judgments. But when those instances are acknowledged at all, they have tended to be consigned to discrete subject areas and not treated as examples of a wider genus. A new approach is required to keep apace with the needs of an increasingly borderless society. In this article, the author collects in one place the established instances of equitable intervention and argues that they are merely illustrations of a comprehensive equitable jurisdiction to recognise and enforce foreign judgments.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":"1 1","pages":"313-340"},"PeriodicalIF":0.0,"publicationDate":"2020-08-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86449169","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 : 2020-08-19DOI: 10.38127/uqlj.v39i2.5023
Brendan Walker-Munro
Criminal law regulators face difficulties in adapting to technological change. They must often operate in environments of significant uncertainty, with changing policy aims and legislative provisions that fail to ‘move with the times’. Rather than engaging with robust, let alone radical theoretical examination of their actions and structure, regulatory organisations struggle to enforce laws in communities affected by technological or systemic change, often leading to claims of overcriminalisation, inadequacy, regulatory overreach or inconsistency. This article suggests that dealing with disruptive criminality solely through legal instruments is a policy failure. Instead, a radical new framework is proposed, embedded in cybernetics (a transdiscplinary approach to exploring regulatory systems). Such a framework — systemic governance — offers a substantially altered way of managing regulatory relationships that resists disruptive change and challenges regulators to find new ways of engaging with the population they seek to influence.
{"title":"Cyber-Systemics, Systemic Governance and Disruption of the Criminal Law","authors":"Brendan Walker-Munro","doi":"10.38127/uqlj.v39i2.5023","DOIUrl":"https://doi.org/10.38127/uqlj.v39i2.5023","url":null,"abstract":"Criminal law regulators face difficulties in adapting to technological change. They must often operate in environments of significant uncertainty, with changing policy aims and legislative provisions that fail to ‘move with the times’. Rather than engaging with robust, let alone radical theoretical examination of their actions and structure, regulatory organisations struggle to enforce laws in communities affected by technological or systemic change, often leading to claims of overcriminalisation, inadequacy, regulatory overreach or inconsistency. This article suggests that dealing with disruptive criminality solely through legal instruments is a policy failure. Instead, a radical new framework is proposed, embedded in cybernetics (a transdiscplinary approach to exploring regulatory systems). Such a framework — systemic governance — offers a substantially altered way of managing regulatory relationships that resists disruptive change and challenges regulators to find new ways of engaging with the population they seek to influence.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":"18 1","pages":"225-252"},"PeriodicalIF":0.0,"publicationDate":"2020-08-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78782621","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 : 2020-08-19DOI: 10.38127/uqlj.v39i2.5019
Robert Flannigan
Some judges and writers have been moving our regulation of opportunism off its conceptual rails. Numerous departures from convention presently are nesting in the jurisprudence and the literature. None of the departures are justified, and all should be purged. They choke the coherent expression of principle. If not dispatched, they may invite or license the collapse of our prudent strict supervision of the mischief that vitally undermines synergy and community.
{"title":"The End of Fiduciary Accountability","authors":"Robert Flannigan","doi":"10.38127/uqlj.v39i2.5019","DOIUrl":"https://doi.org/10.38127/uqlj.v39i2.5019","url":null,"abstract":"Some judges and writers have been moving our regulation of opportunism off its conceptual rails. Numerous departures from convention presently are nesting in the jurisprudence and the literature. None of the departures are justified, and all should be purged. They choke the coherent expression of principle. If not dispatched, they may invite or license the collapse of our prudent strict supervision of the mischief that vitally undermines synergy and community.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":"46 1","pages":"157-196"},"PeriodicalIF":0.0,"publicationDate":"2020-08-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73257368","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 : 2020-08-19DOI: 10.38127/uqlj.v39i2.5021
J. Dietrich
The Civil Liability Acts place significant limitations and caps on the damages that are recoverable for claims caught by those Acts or relevant parts thereof. Such limitations and preclusions significantly impact on what were plaintiffs’ existing common law rights prior to the passage of the CLAs. Importantly, however, many of those limitations do not apply to certain classes of claims excluded from the operation of the CLAs. The focus of this article is on some widely (but not uniformly) adopted exclusions to the operation of the CLAs, namely that many parts of the CLAs do not apply to claims arising from types of intentional conduct. Many of these limitations are express; but other limitations raise issues of intention that are less patent. The precise reach of the ‘intentional conduct’ exclusions in the CLAs has not been resolved and many important questions remain unanswered. This is despite the increasing number of cases coming before the courts in which plaintiffs are attempting to circumvent the operation of the CLAs. The issues will continue to attract judicial attention. This article considers the different interpretation and operation of the ‘intentional conduct’ exclusions in the CLAs and seeks to answer some of unanswered questions.
{"title":"Intentional Conduct and the Operation of the Civil Liability Acts: Unanswered Questions","authors":"J. Dietrich","doi":"10.38127/uqlj.v39i2.5021","DOIUrl":"https://doi.org/10.38127/uqlj.v39i2.5021","url":null,"abstract":"The Civil Liability Acts place significant limitations and caps on the damages that are recoverable for claims caught by those Acts or relevant parts thereof. Such limitations and preclusions significantly impact on what were plaintiffs’ existing common law rights prior to the passage of the CLAs. Importantly, however, many of those limitations do not apply to certain classes of claims excluded from the operation of the CLAs. The focus of this article is on some widely (but not uniformly) adopted exclusions to the operation of the CLAs, namely that many parts of the CLAs do not apply to claims arising from types of intentional conduct. Many of these limitations are express; but other limitations raise issues of intention that are less patent. The precise reach of the ‘intentional conduct’ exclusions in the CLAs has not been resolved and many important questions remain unanswered. This is despite the increasing number of cases coming before the courts in which plaintiffs are attempting to circumvent the operation of the CLAs. The issues will continue to attract judicial attention. This article considers the different interpretation and operation of the ‘intentional conduct’ exclusions in the CLAs and seeks to answer some of unanswered questions.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":"99 1","pages":"197-223"},"PeriodicalIF":0.0,"publicationDate":"2020-08-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86109235","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 : 2020-05-18DOI: 10.38127/UQLJ.V37I1.4133
Ross B. Grantham
Is it feasible for regulation (and particularly legislation) effectively to communicate to the participants the rights, duties, processes, and procedures that embody the regulatory goals upon which they are meant to act. Looking at attempts in Australia to implement this regulatory strategy in the fields of corporate law andconsumer law, this article suggests that a more profound change would need to occur in the form and style of Australian legislation before such an approach is viable.
{"title":"To Whom Does Australian Corporate and Consumer Legislation Speak?","authors":"Ross B. Grantham","doi":"10.38127/UQLJ.V37I1.4133","DOIUrl":"https://doi.org/10.38127/UQLJ.V37I1.4133","url":null,"abstract":"Is it feasible for regulation (and particularly legislation) effectively to communicate to the participants the rights, duties, processes, and procedures that embody the regulatory goals upon which they are meant to act. Looking at attempts in Australia to implement this regulatory strategy in the fields of corporate law andconsumer law, this article suggests that a more profound change would need to occur in the form and style of Australian legislation before such an approach is viable.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":"247 1","pages":"57-67"},"PeriodicalIF":0.0,"publicationDate":"2020-05-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74061845","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 : 2020-05-18DOI: 10.38127/UQLJ.V37I1.4137
Brent Fisse
The PhD thesis upon which Laura was working before her tragic death sought to resolve the intractable question of whether two key goals of anti-cartel enforcement, namely (a) deterrence and (b) compensation, can be achieved more effectively by integrating their pursuit. The potential capacity of redress facilitation orders both to facilitate compensation and to enhance deterrence is one aspect of that question. This article canvasses the possibility of redress facilitation orders designed to facilitate compensation for loss caused by cartel and other unlawful conduct and at the same time to enhance deterrence. It advances a statutory model for redress facilitation orders under the Competition and Consumer Act 2010 (Cth) (CCA). The model advanced is Australian in legislative style but could readily be adapted elsewhere.
{"title":"Redress Facilitation Orders as a Sanction Against Corporations","authors":"Brent Fisse","doi":"10.38127/UQLJ.V37I1.4137","DOIUrl":"https://doi.org/10.38127/UQLJ.V37I1.4137","url":null,"abstract":"The PhD thesis upon which Laura was working before her tragic death sought to resolve the intractable question of whether two key goals of anti-cartel enforcement, namely (a) deterrence and (b) compensation, can be achieved more effectively by integrating their pursuit. The potential capacity of redress facilitation orders both to facilitate compensation and to enhance deterrence is one aspect of that question. This article canvasses the possibility of redress facilitation orders designed to facilitate compensation for loss caused by cartel and other unlawful conduct and at the same time to enhance deterrence. It advances a statutory model for redress facilitation orders under the Competition and Consumer Act 2010 (Cth) (CCA). The model advanced is Australian in legislative style but could readily be adapted elsewhere.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":"4 1","pages":"85-106"},"PeriodicalIF":0.0,"publicationDate":"2020-05-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87104572","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 : 2020-05-18DOI: 10.38127/UQLJ.V37I1.4129
C. Noonan
Private enforcement was built into many competition statutes from the start, or uncovered by the courts early in the life of the regime. Many aspects of private cartel enforcement impact on public enforcement, and vice versa. The relationship between public and private enforcement is complex and multifaceted. However, most examinations of the relationship tend to take public enforcement as given and examine the additional role that private enforcement can and should play. The answer is usually greater deterrence of cartel conduct or compensation for harms suffered by the victims of cartel conduct.
{"title":"Mediating Between Public and Private Enforcement in Multi-Jurisdiction Settings","authors":"C. Noonan","doi":"10.38127/UQLJ.V37I1.4129","DOIUrl":"https://doi.org/10.38127/UQLJ.V37I1.4129","url":null,"abstract":"Private enforcement was built into many competition statutes from the start, or uncovered by the courts early in the life of the regime. Many aspects of private cartel enforcement impact on public enforcement, and vice versa. The relationship between public and private enforcement is complex and multifaceted. However, most examinations of the relationship tend to take public enforcement as given and examine the additional role that private enforcement can and should play. The answer is usually greater deterrence of cartel conduct or compensation for harms suffered by the victims of cartel conduct.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":"22 1","pages":"25-40"},"PeriodicalIF":0.0,"publicationDate":"2020-05-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87046615","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 : 2020-05-18DOI: 10.38127/UQLJ.V37I1.4127
K. Barker
Achieving a workable, hybrid model of competition law enforcement that is sensitive to both instrumental and non-instrumental ends and which commands broad, cross-jurisdictional support always struck me as a tall order. For one thing, it required a keen understanding of the nature of competition law wrongs, which sit awkwardly at the turnstile between public and private law. The enforcement processes of competition law have also evolved in very different social and historical contexts, the United States being an environment in which regulatory agencies have historically been regarded with scepticism (if not downright distrust) and Europe being a centralised bureaucracy in which they have tended to be regarded as the paradigm. Most challengingly of all, the project required a theory of ‘holism’ capable of explaining how it is possible to reconcile complex moral, economic and social objectives within a singular enforcement system, or (more accurately) within a linked network of distinct law enforcement systems.
{"title":"Modelling Public and Private Enforcement","authors":"K. Barker","doi":"10.38127/UQLJ.V37I1.4127","DOIUrl":"https://doi.org/10.38127/UQLJ.V37I1.4127","url":null,"abstract":"Achieving a workable, hybrid model of competition law enforcement that is sensitive to both instrumental and non-instrumental ends and which commands broad, cross-jurisdictional support always struck me as a tall order. For one thing, it required a keen understanding of the nature of competition law wrongs, which sit awkwardly at the turnstile between public and private law. The enforcement processes of competition law have also evolved in very different social and historical contexts, the United States being an environment in which regulatory agencies have historically been regarded with scepticism (if not downright distrust) and Europe being a centralised bureaucracy in which they have tended to be regarded as the paradigm. Most challengingly of all, the project required a theory of ‘holism’ capable of explaining how it is possible to reconcile complex moral, economic and social objectives within a singular enforcement system, or (more accurately) within a linked network of distinct law enforcement systems.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":"13 1","pages":"9-23"},"PeriodicalIF":0.0,"publicationDate":"2020-05-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83178246","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 : 2020-05-18DOI: 10.38127/UQLJ.V37I1.4135
S. Bronitt, A. D'amico
Our ambition is to examine the legal responses to cartel wrongdoing, drawing insights and parallels with new and emerging models of corporate responsibility applied to deal with other white-collar crimes. Our article traces how traditional legal binaries — public versus private law, and criminal versus civil law — are being increasingly challenged by legal hybridity, and the emergence of a range of new regulatory tools that meld together a wide range of purposes including prevention, deterrence, retribution, incapacitation, restorative justice, restitution and compensation.
{"title":"Fighting Cartels and Corporate Corruption - Public versus Private Enforcement Models","authors":"S. Bronitt, A. D'amico","doi":"10.38127/UQLJ.V37I1.4135","DOIUrl":"https://doi.org/10.38127/UQLJ.V37I1.4135","url":null,"abstract":"Our ambition is to examine the legal responses to cartel wrongdoing, drawing insights and parallels with new and emerging models of corporate responsibility applied to deal with other white-collar crimes. Our article traces how traditional legal binaries — public versus private law, and criminal versus civil law — are being increasingly challenged by legal hybridity, and the emergence of a range of new regulatory tools that meld together a wide range of purposes including prevention, deterrence, retribution, incapacitation, restorative justice, restitution and compensation.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":"74 1","pages":"69-84"},"PeriodicalIF":0.0,"publicationDate":"2020-05-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74308979","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 : 2020-05-18DOI: 10.38127/UQLJ.V37I1.4145
Andreas Stephan
This paper argues that the EU’s efforts to promote private enforcement in competition law, lack a coherent purpose. The drive to facilitate actions for damages was originally a response to the underdeveloped and diverging nature of private enforcement rules across its Member States. Enhancing deterrence (especially through stand-alone actions) constituted a primary objective at first, but was later abandoned for an emphasis on compensating injured parties. It is argued that the 2014 Damages Directive fails on both counts and may be harming enforcement overall.
{"title":"Does the EU's Drive for Private Enforcement of Competition Law Have a Coherent Purpose?","authors":"Andreas Stephan","doi":"10.38127/UQLJ.V37I1.4145","DOIUrl":"https://doi.org/10.38127/UQLJ.V37I1.4145","url":null,"abstract":"This paper argues that the EU’s efforts to promote private enforcement in competition law, lack a coherent purpose. The drive to facilitate actions for damages was originally a response to the underdeveloped and diverging nature of private enforcement rules across its Member States. Enhancing deterrence (especially through stand-alone actions) constituted a primary objective at first, but was later abandoned for an emphasis on compensating injured parties. It is argued that the 2014 Damages Directive fails on both counts and may be harming enforcement overall.","PeriodicalId":83293,"journal":{"name":"The University of Queensland law journal","volume":"24 1","pages":"153-168"},"PeriodicalIF":0.0,"publicationDate":"2020-05-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83218224","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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