Anti‐suit Injunctions and the Doctrine of Comity

Hin‐Pro International Logistics Limited v CSAV is an important case in the areas of anti‐suit injunctions, contractual interpretation and private international law. Despite the ambiguities surrounding the jurisdiction clause contained in the bills of lading, the Court of Appeal construed the jurisdiction clause as ‘exclusive’ in the context of a ‘contractual background’, and affirmed the continuation of the anti‐suit injunction granted by the Commercial Court. It is argued that the approach of applying the common law principles of contractual interpretation to a bill of lading is questionable. The approach used to apply English private international law is problematic in a number of ways. There are legitimate reasons for concern that the doctrine of comity in English private international law may become undermined as a result.     

Remedies for Breach of Trust

The decision of the Supreme Court in AIB Group (UK) Plc v Mark Redler & Co confirms the approach taken by Lord Browne‐Wilkinson in Target Holdings Ltd v Redferns: where a trustee misapplies trust assets, a beneficiary is limited to a claim for equitable compensation for losses caused by the trustee's breach of duty. This seems to be a departure from traditional equitable doctrine, which held that the beneficiary could falsify the trustee's unauthorised disbursement and bring a claim for an ‘equitable debt’. This note considers the impact of the decision of the Supreme Court, and how the law regarding ‘equitable compensation’ might continue to develop.     

Section 994 of the Companies Act 2006 and the Primacy of Contract

The Court of Appeal's decision in Fulham Football Club (1987) Ltd v Richards & Anor is both of interest and significance. By embracing the idea of the parties’ ability to ‘contract out’ of their statutory right to petition the court for relief under section 994 of the Companies Act 2006 (the so‐called ‘unfair prejudice’ remedy), their Lordships have not only contrived to stunt the future development of unfair prejudice as a minority shareholder remedy but, and more importantly for the purposes of this case note, their decision has reasserted and extended the contractual analogy in modern UK company law.     

Understanding Intimidation

This article examines the gist, vitality and practical utility of the tort of intimidation and identifies what count as unlawful threats and as actionable harm. While two versions of the tort have been identified in the past – one involving two parties, one involving three – only the former has survived the decision of the House of Lords in OBG v Allan. In the context considering the tort's practical usefulness, the article exposes as bogus the suggestion that two‐party intimidation offers nothing that is not already supplied under the law of contract via the doctrines of anticipatory breach, duress and economic duress. The article concludes with two radical suggestions. First, that two‐party intimidation is not a specifically economic tort and secondly, in view of this fact, it was a most inappropriate tool for the House of Lords to have used in their resurrection of the tort of unlawful means conspiracy in Total Network SL v Revenue and Customs Commissioners.     

Where There's a Will There's a Way: Marley v Rawlings and Another

In Marley v Rawlings and another, a unanimous Supreme Court has widened the scope of judicial power to rectify a will under section 20 of the Administration of Justice Act 1982. An intended will that falls foul of formality requirements may now have such defects resolved by rectification, and the meaning of ‘clerical error’ – one of the two possible bases for invoking the rectification doctrine – has been expanded. The Court's decision to resolve the issue by this method rather than by recourse to the doctrine of construction may prove to have implications for the extended scope of the latter. Moreover, the recent award of a third party costs order in this case is also likely to have a significant impact on the manner in which similar disputes are conducted in the future.     

The Heathrow Case in the Supreme Court: Climate Change Legislation and Administrative Adjudication

In R (on the application of Friends of the Earth Ltd and others) v Heathrow Airport Ltd the UK Supreme Court allowed an appeal against the Court of Appeal's decision that there had been a series of legal errors in the designation of the Airport National Policy Statement. This case note analyses the case from an ‘internal’ doctrinal perspective and argues that the Supreme Court could have engaged more explicitly with the legal issues that arise from climate change legislation for administrative law adjudication. For courts to adjudicate well in such circumstances they need to be prepared to develop administrative law doctrine, particularly in light of the issues of integrating climate change into public decision-making and of scientific/policy uncertainty which lie in the background of climate change legislation.     

Fraud by Abuse of Position and Unlicensed Gangmasters

This article analyses the Court of Appeal's interpretation of the fraud by abuse of position offence in R v Valujevs. Two issues are explored: first, the Court's welcome clarification of the meaning of a relevant ‘expectation’; second, the inadequacy of the Court's reasoning in deciding that an unlicensed gangmaster ‘is expected to safeguard, or not to act against, the financial interests’ of his workers.     

Social Insurance Monopolies in Community Competition Law and the Italian Constitution: 'Practical' Convergences and 'Theoretical' Conflicts

An Italian judge, following earlier suggestions of the national antitrust Authority, has referred to the Court of Justice for a preliminary ruling under Article 234 EC Treaty two questions on the interpretation of Articles 81 and 86 of the EC Treaty. With those questions, raised in an action brought by a self‐employee against the Istituto Nazionale per l'Assicurazione contro gli Infortuni sul Lavoro (INAIL) concerning the actor's refusal to pay for social insurance contributions, the Tribunale di Vicenza has in summary asked the Court of Justice whether the public entity concerned, managing a general scheme for the social insurance of accidents at work and professional diseases, can be qualified as an enterprise under Article 81 EC Treaty and, if so, whether its dominant position can be considered in contrast with EC competition rules. This article takes this preliminary reference as a starting point to consider in more general terms the complex constitutional issues raised by what Ge´rard Lyon‐Caen has evocatively called the progressive ‘infiltration’ of EC competition rules into the national systems of labour and social security law. The analysis is particularly focused on the significant risks of ‘constitutional collision’, between the ‘solidaristic’ principles enshrined in the Italian constitution and the fundamental market freedoms protected by the EC competition rules, which are implied by the questions raised in the preliminary reference. It considers first the evolution of ECJ case law—from Poucet and Pistre to Albany International BV—about the limits Member States have in granting exclusive rights to social security institutions under EC competition rules. It then considers specularly, from the Italian constitutional law perspective, the most recent case law of the Italian Constitutional Court on the same issues. The ‘contextual’ reading of the ECJ's and the Italian Constitutional Court's case law with specific regard to the case referred to by the Tribunale di Vicenza leads to the conclusion that there will probably be a ‘practical convergence’in casu between the ‘European’ and the ‘national’ approach. Following the arguments put forward by the Court of Justice in Albany, the INAIL should not be considered as an enterprise, in line also with a recent decision of the Italian Constitutional Court. And even when it was to be qualified as an enterprise, the INAIL should in any case be able to escape the ‘accuse’ of abuse of dominant position and be allowed to retain its exclusive rights, pursuant to Article 86 of the EC Treaty. This ‘practical convergence’in casu does not, however, remove the latent ‘theoretical conflict’ between the two approaches and the risk of ‘constitutional collision’ that it implies. A risk of a ‘conflict’ of that kind could be obviously detrimental for the European integration process. The Italian Constitutional Court claims for herself the control over the fundamental principles of the national constitutional order, assigning them the role of ‘counter‐limits’ to the supremacy of European law and to European integration. At the same time, and more generally, the pervasive spill over of the EC market and competition law virtually into every area of national regulation runs the risk of undermining the social and democratic values enshrined in the national labour law traditions without compensating the potential de‐regulatory effects through measures of positive integration at the supranational level. This also may contribute to undermine and threaten, in the long run, the (already weak) democratic legitimacy of the European integration process. The search for a more suitable and less elusive and unilateral balance between social rights and economic freedoms at the supranational level should therefore become one of the most relevant tasks of what Joseph Weiler has called the ‘European neo‐constitutionalism’. In this perspective, the article, always looking at the specific questions referred to the Court of Justice by the Tribunale di Vicenza, deals with the issue of the ‘rebalance’ between social rights and economic and market freedoms along three distinct but connected lines of reasoning. The first has to do with the need of a more open and respectful dialogue between the ECJ and the national constitutional courts. The second is linked to the ongoing discussion about the ‘constitutionalization’ of the fundamental social rights at the EC level. The third finally considers the same issues from the specific point of view of the division of competences between the European Community and the Member States in the area of social (protection) policies.     

Dryden v Johnson Matthey: The Boundaries of Actionable Damage

In Dryden v Johnson Matthey, the claimants sought to recover in tort for becoming sensitised to platinum salts by the defendant's negligence. The Supreme Court found, unanimously, that merely becoming sensitised, as opposed to developing an allergic reaction, sufficed as actionable damage. However, the court only provided two ‘indicative factors’ for when damage was ‘actionable’: whether there had been some impairment, and whether the effect of that impairment was ‘more than negligible’. This approach is unclear, in tension with other parts of the judgment, and produces undesirable broader consequences. It misses an opportunity for the Court to provide guidance on developments in tort like preventive damages, claimant‐specific loss, and the broader raison d'être of tort. A narrow and constrained adjustment to the law to permit recovery in negligence of pure economic loss for preventive damage could have achieved the same result without relying on somewhat convoluted mental gymnastics.     

Mistakes in Algorithmic Trading of Cryptocurrencies

How should the doctrine of unilateral mistake apply when a programming error results in a buyer's algorithmic trading programme accepting an offer generated by the seller's trading programme to exchange cryptocurrencies at 250 times the current market rate? How should the knowledge element be adapted given that algorithmic trading necessarily means that the traders’ minds were not engaged at the moment the contract was formed? These novel issues came before the Singapore Court of Appeal in Quoine Pte Ltd v B2C2 Ltd. The decision further cautions customers of cryptocurrency exchanges not to assume that they have property rights in the cryptocurrencies held by the exchange and to examine carefully the nature of asset holding arrangement found in the documentation.     

Belize It or Not: Implied Contract Terms in Marks and Spencer v BNP Paribas

In Marks and Spencer v BNP Paribas, the Supreme Court restated the law on the implication of terms in fact, rejecting the previously authoritative approach taken by Lord Hoffmann in Attorney General of Belize v Belize Telecom Ltd. This article examines two major departures from Belize in Lord Neuberger's leading judgment: the treatment of implication as a process separate from interpretation, and a return to the ‘traditional tests’ for the implication of terms. It argues that these are retrogressive steps in our understanding of contract terms, which risk fostering an incoherent and unprincipled approach to the law.     

(Non‐)Enforcement of Directors’ Duties in Corporate Groups: Goh Chan Peng v Beyonics Technology Ltd

Corporate groups, a ubiquitous feature of modern business, pose formidable challenges for common law courts relying on traditional corporate law doctrine. Arising out of a corporate group's recent bid to recover millions of dollars in lost profits from a former director and CEO who had diverted a core business, Goh Chan Peng v Beyonics Technology Ltd raised thorny issues of separate legal entity doctrine, single economic unit theory, and reflective loss shared by common law legal systems. Despite finding that the defendant had breached his duties to the ultimate holding company, the Singapore Court of Appeal absolved the faithless director from most of his liabilities, relying on limited domestic precedent to the exclusion of a rich body of Commonwealth jurisprudence – including the House of Lords’ landmark Johnson v Gore Wood decision. This note explores the paths not taken by the court, and highlights the pitfalls of a narrow, autochthonous approach to problems of common law doctrine.     

All Bark and No Bite: Notes on the Federal Constitutional Court's 'Banana Decision'

The Federal Constitutional Court's banana decision of 7 June 2000 continues the complex theme of national fundamental‐rights control over Community law. Whereas in the ‘Solange II’ decision (BVerfGE 73, 339) the Federal Constitutional Court had lowered its standard of review to the general guarantee of the constitutionally mandatorily required minimum, the Maastricht judgment (BVerfGE 89, 155) had raised doubts as to the continued validity of this case law. In the banana decision, which was based on the submission of the EC banana market regulation by the Frankfurt‐am‐Main administrative court for constitutional review, the Federal Constitutional Court has now confirmed the ‘Solange II’decision and restrictively specified the admissibility conditions for constitutional review of Community law as follows. Constitutional complaints and judicial applications for review of European legislation alleging fundamental‐rights infringements are inadmissible unless they show that the development of European law including Court of Justice case law has since the ‘Solange II’ decision generally fallen below the mandatorily required fundamental‐rights standard of the Basic Law in a given field. This would require a comprehensive comparison of European and national fundamental‐rights protection. This paper criticises this formula as being logically problematic and scarcely compatible with the Basic Law. Starting from the position that national constitutional courts active even in European matters should be among the essential vertical ‘checks and balances’ in the European multi‐level system, a practical alternative to the Federal Constitutional Court's retreat is developed. This involves at the first stage a submission by the Federal Constitutional Court to the Court of Justice, something that in the banana case might have taken up questions on the method of fundamental‐rights review and the internal Community effect of WTO dispute settlement decisions. Should national constitutional identity not be upheld even by this, then at a second stage, as ultima ratio taking recourse to general international law, the call is made for the decision of constitutional conflicts by an independent mediating body.     

A Riddle Whose Answer is ‘Tort’: A Reassessment of International News Service v Associated Press

The decision of the US Supreme Court in International News Service v Associated Press (1918) has variously been interpreted as recognising a ‘quasi‐property’ right in ‘valuable intangibles’, such as hot news; as turning on unjust enrichment; or as creating a novel tort of unfair competition by misappropriation. It is suggested that the case is more authentically understood as an incidental result of a process by which the Supreme Court extended the boundaries of tort liability, and the corresponding scope of property protection, in a series of decisions against organised labour. The argument is pursued with reference to the prima facie tort theory of Oliver Wendell Holmes, the American ‘labour injunction’, and the labour law record of the author of the majority opinion in International News, Justice Mahlon Pitney.     

Marr v Collie: The Ballooning of the Common Intention Constructive Trust

The decision in Marr v Collie represents a significant expansion of the common intention constructive trust doctrine. Unsupported by authority, it relaxes the requirement that the property be acquired for a ‘domestic’ purpose, and widens the doctrine to encompass all property, whether real or personal. The decision's abrogation of the ‘purpose’ restriction redraws the line between the common intention constructive trust doctrine and the presumed resulting trust doctrine and expands the former to the greatest possible extent. This exacerbates a doctrine already apt to adversely affect both individual litigants and the justice system as a whole, and which creates incongruous theoretical divisions within the law of intentionally created trusts. As the doctrine is reliant on the proposition, unsupported by authority or legislation, that conveyance of a title to land into joint names necessarily gives rise to a trust, it is hoped that a future apex court will reconsider the doctrine's proper scope.     

Fundamental rights in the EU after Kadi and Al Barakaat

This article takes stock of the emerging scholarship on the European Court of Justice's 2008 Kadi decision and seeks to make sense of the court's apparent evasiveness towards international law. The article argues that Kadi is best understood as an act of civil disobedience prompted by the UN Security Council's misapplication of foundational principles of the international order. In turn, the court's forceful articulation of the stakes in this case signals a prioritisation of basic rights within the supranational constitutional architectonic. In this respect, the ‘domestic’ constitutional implications of Kadi are just as far reaching as its consequences for the EU's status as an actor under international law.     

Measuring Reed’s Reach: Content Discrimination in the U.S. Circuit Courts of Appeals After Reed v. Town of Gilbert

Commentators and justices on the Supreme Court of the United States speculated when the Court delivered its opinion in Reed v. Town of Gilbert in 2015 that the case would dramatically reshape First Amendment law. This article analyzes Reed’s impact to date in the United States Circuit Courts of Appeals. The article demonstrates that, although Reed has been consequential in some circuits, it has not been the basis of any First Amendment revolution. Indeed, the research supports the conclusion that many circuit courts seem to be actively working to narrow Reed’s reach. Moreover, the article concludes that Reed did little to clarify — and in some ways made worse — what has been a problematic doctrine for decades.     

Animal Defenders International v United Kingdom: Sensible Dialogue or a Bad Case of Strasbourg Jitters?

In Animal Defenders International v United Kingdom a majority of the Grand Chamber of the European Court of Human Rights held that the UK's statutory broadcasting ban on political advertisements under the Communications Act 2003 did not breach the right to freedom of expression under Article 10 of the European Convention on Human Rights. The judgment departs from the Court's established case law and, it is argued, raises several issues of concern both with regard to freedom of expression, and for human rights adjudication more generally. In particular, the Court's use of a doctrine of ‘general measures’ led it to place a great deal of reliance on the quality and quantity of legislative debate that preceded the UK ban, rather than its actual impact upon the applicant.     

Immediate Effect of Community Law in the New Member States: Is there a Place for a Consistent Doctrine?

Abstract: Extension of the acquis to the new Member States raises a number of questions relating to the temporal reach of Community rules. This paper examines a general doctrine underlying the solutions. It presents a classic intertemporal doctrine, which has influenced early jurisprudence of the European Court of Justice. Then, it comments upon the cases brought before the Court in the context of the 1995 enlargement, the entry into force of the EEA Agreement and also the Europe Agreements. These cases evidence substantial differences in the attitudes taken by the national courts, the Advocates General and the Court. One reason for divergence is that the line of reasoning adopted by the Court carries several interpretative difficulties characteristic of the classic doctrine. Secondly, controversies arise in the instances where the Court takes a proactive attitude, which is difficult to reconcile with the traditional scheme. It is argued that greater attention to the structure underlying the reasoning would help to strengthen justification of the Court's solutions and enhance their predictability. This is the more important, as the forthcoming accessions are likely to bring new disputes relating to the effects of Community law in time.