Equity before ‘Equity’

The notion of ‘equity’ is undergoing conceptual repositioning in international law today, embracing individuals as well as states and gaining an association with human rights and the politics of protest. In the context of these developments, the present paper enquires into the premodern roots of this ancient and rich term through three historical vignettes: first, the emergence of aequitas in Roman law – as a source of law anchored in analogy and empathy – and in particular its relevance to the ambiguous status of slaves; second, the importance of ‘natural equity’ to the consolidation of ‘natural rights’ during the Franciscan poverty debate in 14th century Europe, and finally, ‘common equity’ in the rights-based constitutional order proposed by the Levellers in 1640s England. In its root sense, I conclude, what we might call ‘radical equity’ has historically lent itself to trenchant critique of the law, centred on the individual as subject of right.     

Human Rights Watch v Secretary of State for the Foreign and Commonwealth Office: Victim Status,Extraterritoriality and the Search for Principled Reasoning

In Human Rights Watch v Secretary of State for the Foreign and Commonwealth Office the UK Investigatory Powers Tribunal found that the relevant standard of ‘victim status’ that applies in secret surveillance cases consists in a potential risk of being subjected to surveillance and that the European Convention on Human Rights does not apply to the surveillance of individuals who reside outside of the UK. This note argues that the Tribunal's finding regarding the victim status of the applicants was sound but that the underlying reasoning was not. It concludes that the Tribunal's finding on extraterritoriality is unsatisfactory and that its engagement with the European Court of Human Rights case law on the matter lacked depth. Finally, the note considers the defects of the Human Rights Watch case, and the case law on extraterritoriality more generally, against the backdrop of the place of principled reasoning in human rights adjudication.     

Laws of Inclusion and Exclusion: Nomos,Nationalism and the Other

This article explores how and why contemporary nationalist ‘defence leagues’ in Australia and the UK invoke fantasies of law. I argue these fantasies articulate with Carl Schmitt’s theory of ‘nomos’, which holds that law functions as a spatial order of reason that both produces and is produced by land qua the territory of the nation. To elucidate the ideological function of law for defence leagues, I outline a theory of law as it relates to (political) subjectivity. Drawing on the work of Foucault, Agamben and Brown, I demonstrate how subjects form and are formed by historically contingent relationships to law in the contemporary neo-liberal moment. Turning to Lacan, I show how nationalistic invocations of law provide nationalists with a fantasy that the nation’s law represents them and holds them together (as the nation itself). Similarly, I argue that nationalists imagine that the other has their own law as well, which not only corresponds to the other, but functions as a legible index of the other’s otherness—a metonym for the threatening uncertainty and radical difference that the other represents. Drawing on Lacan’s concept of the big Other, I ultimately argue that nationalists aggressively (re)assert law not only to defend the nation, but to ensure their own symbolic and ontological security therein.

     

It Ain't Necessarily So: A Legal Realist Perspective on the Law of Agency Work

Analysis of UK employment and labour law is often characterised by a curious dissonance. The overarching narrative mandates that labour law is a countervailing force to the inequality of bargaining power, embedded with values and assumptions concerning the nature of employment relations and the role of labour law. And yet, labour law jurisprudence tends to treat with respect, and seeks to decipher, abstract statutory concepts and tests derived from judicial pronouncements as if they were, indeed, a ‘brooding omnipresence in the sky’. This paper seeks to bridge that gap, by offering a legal realist account of the legal doctrine that governs the employment of agency workers, focusing on the ‘necessity’ and ‘sham’ tests. It assesses the legitimacy of importing legal tests from one (commercial) context to another (employment) context; questions the courts’ protestations that their use is mandated by precedent; and outlines the real implications for the status and rights of agency workers in the UK.     

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.     

The Elective and Automatic Theories of Termination in the Common Law of the Contract of Employment: Conundrum Resolved?

If a party to an employment contract commits a repudiatory dismissal or resignation, it has long been unclear whether the other party has the option either to terminate or affirm the contract (the elective theory) or whether the former's breach operates to bring the contract of employment to an end (the automatic theory). The recent decision of the Supreme Court in Société Générale (London Branch) v Geys has finally resolved this question. By a majority, the Supreme Court held that the elective theory also applies in the context of a wrongful repudiation of the employment contract by express dismissal or resignation. This note examines the significance of Geys in the context of the common law of the contract of employment and evaluates whether a number of related issues surrounding the breach and termination of the employment contract have been resolved.     

The Territorial Scope of Employment Legislation and Choice of Law

Traditionally, the determination of the territorial scope of the statutory rights conferred by employment legislation forming part of English law has been regarded as an issue entirely disconnected from the choice‐of‐law process. Indeed, this view formed the basis of the key decision addressing the problem of territoriality, Lawson v Serco, decided by the House of Lords in 2006. After presenting the current state of the law with regard to the territorial scope of employment legislation, this article takes a critical look at Lawson v Serco. It is argued that the ‘European’ choice‐of‐law rules must have a greater importance for determining the territorial scope of employment legislation and, consequently, that the approach pursued in Lawson v Serco is no longer correct, if it ever was, and should not be followed in the future.     

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.     

Durie v Gardiner: Public Libel Law and Stare Non Decisis

This note examines the controversial case of Durie v Gardiner, a recent decision of the Court of Appeal of New Zealand, which radically altered the nation's public libel jurisprudence. It argues that Durie is incorrect as a matter of public libel law for three reasons. First, both Durie judgments failed to engage in freedom of expression theorising. Second, this undertheorising has caused significant confusion in Durie, including misinterpretation of material facts, breakdown of the ‘theory-doctrine’ interface, and a precipitous and unwarranted dismissal of the Court of Appeal's settled public libel principles. Third, owing to these difficulties, the Durie courts were in no position to import a new ‘public interest’ defence from foreign jurisdictions. Above all, by hastening towards wholesale law reform and ignoring its earlier comparative law deliberations, Durie arguably scuppers public libel law's best hope for advancement.     

On the Relations between Agent and Principal: Angove's Pty Ltd v Bailey

In Angove's Pty Ltd v Bailey the Supreme Court faced ‘two important and controversial questions of commercial law’: whether an agent's authority could ever be ‘irrevocable’, and whether the receipt of money by an imminent insolvent could ever give rise to a constructive trust of that sum. It answered both in the affirmative, albeit subject to heavy qualifications. This note supports these conclusions in principle, however it will argue that the court's reasoning, especially in answering the second question, leaves much to be desired. In particular, it ignored the central role of fiduciary law in regulating the conduct of agents.     

Unjust Enrichment in the ‘Fairchild Enclave’ International Energy Group Ltd v Zurich Insurance plc

In International Energy Group v Zurich Insurance, the Supreme Court considered the implications of the special rule in Fairchild v Glenhaven Funeral Services Ltd for insurers’ for employers’ liability. The question for the Court was whether, in the light of its earlier decision in Durham v BAI (Run off) Ltd, insurers could be held liable for employees’ mesothelioma claims, even if the employer was not insured throughout the period of employment. The seven Justices unanimously held that insurers’ liability was proportionate to the period of insurance. In reaching that result, the majority recognised that the insurers were entitled to ‘equitable recoupment’ from insured‐employers in respect of periods during which they were uninsured. This note critiques the recoupment right with an unjust enrichment lens.     

Sevilleja v Marex Financial Ltd: Reflective Loss and the Autonomy of Company Law

In Sevilleja v Marex Financial Ltd the Supreme Court considered the ambit of the prohibition on a shareholder recovering losses from third parties for the reduction in the value of their shares or loss of dividend income arising from a wrong suffered by the company. This prohibition on ‘reflective loss’ had been growing in scope in recent years, leading to a lack of clarity as to whether it is taxonomically situated in company law or in private law. The majority in this case situated the prohibition firmly within company law. This note argues that the majority judgment did not go far enough and explores the impact of this case on company law more broadly.     

A note on the misconduct of academics in UK HEIs1

The article compares the employment regime for academics in UK HEIs with that of faculty in US HEIs. It considers, inter alia, ‘progressive discipline’, ‘at will contracts’, ‘the Model Statute’, ‘academic freedom’, ‘faculty misconduct’ and ‘academic underperformance’.     

O'Keeffe v Ireland: The Liability of States for Failure to Provide an Effective System for the Detection and Prevention of Child Sexual Abuse in Education

In O'Keeffe v Ireland, the Grand Chamber of the European Court of Human Rights found that Ireland failed to protect the applicant from sexual abuse suffered as a child in an Irish National School in 1973 and violated her rights under Article 3 (prohibition of inhuman and degrading treatment) and Article 13 (right to an effective remedy) of the European Convention on Human Rights. This note argues that the decision is important in expanding the Court's jurisprudence regarding positive obligations under Article 3 to child sexual abuse in a non‐state setting where there was no knowledge of a ‘real and immediate’ risk to the applicant. It also argues that the case raises concerns about the Court's methodology for the historical application of the Convention and about the interaction of Article 3 positive obligations with vicarious liability in common law tort regimes.     

From Brand Performance to Consumer Performativity: Assessing European Trade Mark Law after the Rise of Anthropological Marketing

Since the 2009 CJEU decision in L'Oréal v. Bellure, the idea that a brand's image is the property of the trade mark owner has become increasingly entrenched within European trade mark law. Brand image is now protected even where there is no harm to the underlying mark. However, the courts have largely failed to acknowledge the radical ways in which the marketplace for goods bearing trade marks has changed in the past three decades. One key shift is that businesses and marketers no longer view the brand creation process from a top‐down ‘brand performance’ perspective, but, rather, through the prisms of ‘anthropological marketing’ and ‘consumer performativity'. Through an interdisciplinary approach, this article dissects the process of brand creation in the context of European trade mark law, and argues that the law must take account of consumer agency when the question of who should own brand image arises.     

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.     

(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.     

Comments on Illegal War and Illegal Conduct: Are the Two Related?

This article examines whether there is a link between the legality or otherwise of an armed conflict under jus ad bellum and the subsequent conduct of the campaign under jus in bello. This is done by comparing two conflicts where the legality was not in serious dispute, the Falklands/Malvinas conflict and the Iraq War 1990–1991, and three where the legality has been questioned, Kosovo 1999, the ‘global war on terror’ and the Iraq War 2003. In looking for a common link, the author is drawn away from concerns over the jus ad bellum to doubts over the content of the relevant law governing the conduct of hostilities. Uncertainties in the law have occurred both from the extension to non-international armed conflict of ‘Hague law’, traditionally applicable only in international armed conflicts, and the overlap between human rights law and the law of armed conflict. The author concludes that there is a danger that the balance between military necessity and humanity may be disturbed so that the law will become impracticable in the cauldron of conflict to the detriment of all, soldier and civilian alike.

     

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.