Chasing the Dragon: trust assets caught by the divorce courts

The recent Court of Appeal decision in Charman v Charman [2007]EWCA Civ 503 provides the latest analysis of the courts' approachin apportioning assets in ‘big money’ divorce casesand pays particular attention to the treatment of assets settledinto offshore trusts.     

Dutch Courts' Universal Jurisdiction over Violations of Common Article 3 qua War Crimes

On 14 October 2005, The Hague District Court sentenced two Afghanasylum seekers for their role and participation in the tortureof civilians during the Afghan War of 1978–1992. The Courtheld in both cases that it had ‘universal jurisdiction’over violations of Common Article 3 of the Geneva Conventionsand that the accused were guilty of ‘torment’ (‘foltering’)and torture as a war crime (‘marteling’). The jurisdictionalbasis relied upon by the Court and the Court's legal reasoningin both cases is open to criticism.     

Does Dworkin Commit Dworkin's Fallacy?: A Reply to Justice in Robes

In an article entitled ‘Dworkin's Fallacy, Or What thePhilosophy of Language Can't Teach Us about the Law’,I argued that in Law's Empire Ronald Dworkin misderived hisinterpretive theory of law from an implicit interpretive theoryof meaning, thereby committing ‘Dworkin's fallacy’.In his recent book, Justice in Robes, Dworkin denies that hecommitted the fallacy. As evidence he points to the fact thathe considered three theories of law—‘conventionalism’,‘pragmatism’ and ‘law as integrity’—inLaw's Empire. Only the last of these is interpretive, but each,he argues, is compatible with his interpretive theory of meaning,which he describes as the view that ‘the doctrinal conceptof law is an interpretive concept’. In this Reply, I arguethat Dworkin's argument that he does not commit Dworkin's fallacyis itself an example of the fallacy and that Dworkin's fallacypervades Justice in Robes just as much as it did Law's Empire.     

Pepper v Hart: A Footnote to Professor Vogenauer's Reply to Lord Steyn

This Note is intended to stand as a short supplement to thecompelling article by Stefan Vogenauer entitled, ‘A Retreatfrom Pepper v Hart? A Reply to Lord Steyn’ published inthe Journal at the end of 2005.¹ In his article, Professor Vogenauercalls in question the argument advanced by Lord Steyn in hisarticle in the Journal, entitled ‘Pepper v Hart: A Re-examination’.²In that article, Lord Steyn called for a retreat from the decisionof the House of Lords in Pepper v Hart³ concerning the circumstancesin which reference may be made to Hansard as an aid to statutoryconstruction and for a reinterpretation of the decision in linewith a theory that a Minister speaking in Parliament who givesan explanation of the meaning or effect of a clause in a Billshould be taken to create a binding legitimate expectation thatthe executive will apply the provision, once enacted, in thatsense. In this Note, I express my agreement with Professor Vogenauer’sargument, and seek to support it with some additional pointsunder three heads: (1) the proper interpretation of Pepper vHart and its status as authority; (2) the basis in principlefor adhering to that interpretation; and (3) conceptual difficultiesattached to Lord Steyn’s legitimate expectation thesis.     

Gaining confidence in the law of confidence

Legal context. The recent case of EPI v Symphony has left theUK law of confidentiality in an uncertain state: the extentto which recipients of confidential information may be permittedto ‘use’ mixtures of such information with publiclyavailable material remains unclear. The Court of Appeal in EPIfelt that it was hard to reconcile the principle that any claimin confidence must fail if the material in question is in thepublic domain with the ‘springboard’ doctrine; butis the distinction illusory? Key points. Issues raised in this case include considerationof what precisely is ‘use’ of confidential information,when mixed with public information, and whether a confider shoulddo more than rely on confidentiality obligations to protectthe fruits of his/her disclosures. This article asks how confidentialityobligations may be aligned with the control of statutory intellectualproperty rights. It considers whether the Court of Appeal inMarkem v Zipher has confused the issue and speculates as tohow far the general law of contract can assist the confider. Practical significance. Finally, this article discusses whichlegal tools will best assist the confider seeking to protectits intellectual property.     

Part One of the Employment Act 2008: 'Better' Dispute Resolution?

This article will analyse Part One of the Employment Act 2008on employment dispute resolution and in particular the repealof the statutory workplace dispute resolution procedures onlyfour years after Regulations implemented them. It will beginby considering the background of increasing tribunal caseloadthat led to their introduction in the first place. Later sectionswill examine the replacement of these statutory procedures withwhat Ministers described as the triple package of a new AdvisoryConciliation and Arbitration Service (‘ACAS’) helpline,increased ACAS conciliation and a revised ACAS Code. The languageof repeal and the Act's reintroduction of the Polkey line ofcases might suggest that dismissal law is merely reverting backto its pre October 2004 position. This article will, however,conclude that Part One does not just ‘simplify’dismissal law, or ‘return’ the law to September2004 or indeed to any other time frame. Instead, it weakenskey procedural protections for employees potentially by conflatingthe 2002 Act's different tests of ‘automatically’unfair and ‘ordinarily’ unfair dismissals, for example.Lowering standards of procedural justice is significant in itselfbut this takes added importance for dismissed employees as tribunalsrarely investigate the substantive fairness of dismissals.     

Shadows in Paradise - Exploring Non-Refoulement as an Open Concept

The principle of non-refoulement contains a paradox. While stateshave committed to respecting the principle by joining the 1951Refugee Convention and key human rights conventions, its contentis not established in international law. In other words, stateshave committed to a principle the content of which is indeterminate.Since no common definition exists, in practice, national andinternational bodies have extensive powers of discretion togive content to the terms ‘persecution’, ‘torture’,‘degrading’ or ‘cruel’ treatment. Thepurpose of this article is to explore non-refoulement as anopen and ambiguous concept. Acknowledgement of the indeterminacyis important, as open concepts never remain such in practicebut are always issued with content or interpreted. This approachcalls for a further question: how do interpretations come aboutand what kind of factors influence them? The conclusion of thearticle is that different national and international actorspromote their own ‘correct’ interpretations of thiskeystone of refugee protection.     

Civilized Squatting

This article seeks to trace the origins of the requirement thata squatter must have an intention to possess (animus possidendi)in order to establish title by adverse possession. The requirementhas been confirmed by the House of Lords in the recent caseof Pye (Oxford) Ltd v Graham [2003] 1 AC 419. Its origins canreadily be traced back to the decision of the Court of Appealin Littledale v Liverpool College [1900] 1 Ch 19, but thereis little evidence of any need for intention before that case,and no convincing authority is cited for it. Possible explanationsfor the source of this requirement are considered by the article(for instance cases on re-entry by landlords and the so-called‘found chattel’ cases), but these are ultimatelyrejected. The article goes on to suggest that the reason forthis is that the intention requirement was ‘imported’into English law from German Pandectist writers of the nineteenthcentury. It suggests that Littledale was the case in which thishappened. It seeks to support this hypothesis by reference tobiographical details of Lindley MR, who gave the leading judgmentin Littledale, and who not only trained in part in Germany butalso took an active interest in German scholarship of the time.A brief survey of the relevant German sources is undertaken,focusing primarily on the work of Savigny, but also consideringthe rival theory of Jhering. Finally, it tracks the developmentand refinement of the content of animus possidendi, first by19th century legal scholars and then by 20th century judges,to make it ‘fit’ with English property law. It seeksto address the question of whether the animus possidendi requirementis a free-standing element (the ‘strong’ will theory),or whether it is simply implied from the acts of the squatter(the ‘weak’ will theory), and suggests a solutionby reference to the German sources and later English cases.Finally, it considers how the House of Lords decision in Pyereflects the logical culmination of the acceptance of this ‘legaltransplant’ into the common law.     

Overcoming the challenges posted by technology to traditional copyright law: from Betamax to Grokster

Legal context: Dual use technology, or technology which can be used for bothinfringing and non-infringing uses, raises interesting issuesin the area of copyright law. This note analyses inter aliathe two US Supreme Court decisions on dual use technology, separatedby a gap of over 20 years—Sony v Universal Studios (1984)and MGM v Grokster (2005). Key points: Sony lays down the famous ‘Betamax’ defence—ifthe technology is ‘capable of substantial non-infringinguses’, then it cannot be challenged as infringing. Thistest had stood the test of time, and it is only recently inGrokster that there arose an occasion to reconsider its application.The Court in Grokster, borrowing from the jurisprudence developedin Patent law, recognized a novel test of liability—basedon the active ‘inducement’ to infringe. The flawin Grokster is that despite its attempt to develop new standardsfor a digital age, the ruling leaves areas of uncertainty. Practical significance: Dual use technology has become ubiquitous in this age—fromthe iPod to YouTube to P2P software, all are capable of beingused in lawful as well as unlawful ways. Legal pronouncementshave the potential to impact not just the development of law,but also innovation in technology. Some believe that the ‘brightline’ of Sony has been muddled thereby threatening technologicalinnovation. Others, me included, believe that Sony is inapplicablein the face of new technology, and hail the decision in Groksteras a positive step forward in what it actually decides. However,in what it does not decide, Grokster still represents a lostopportunity by the Court to clear up the muddled waters.     

Clear, Simple, and Precise Legislative Drafting: How Does a European Community Directive Fare?

In 2001, Martin Cutts redrafted Toy-Safety Directive 88/378/EEC¹in plain language. He criticized the language of that Directiveas being archaic legalese.² He added that Directives, as a whole,were poorly drafted.³ The European Commissions Legal Servicerejected his criticisms. It stated that it had published theEuropean Commission’s plain language guidelines⁴ afterDirective 88/378/EEC had been drafted. In a previous articlein the Statute Law Review,⁵ Butt and Castle’s⁶ plain languageguidelines were explicated using examples from Directive 2002/2/EC.⁷In this article, their guidelines are applied to the whole ofthat Directive to see if its language is ‘clear, simple,and precise’.⁸ The criticisms made in the previous article,⁹combined with those made in this article, suggest that the draftersof Directive 2002/2/EC¹⁰ have not yet mastered the skill ofwriting in ‘clear, simple, and precise’ language.     

Irish 'Lipitor' litigation: High Court favours broad claim construction

In its first significant judgment on claim construction in over25 years, Ireland's High Court approved the principles laiddown by the English House of Lords in Kirin-Amgen, holding thatWarner-Lambert's ‘Lipitor’ patent is not limitedto a racemic mixture and refusing Ranbaxy a declaration of non-infringement.     

The Vessel Hull Design Protection Act of 1998: is it still afloat?

Legal context. The Vessel Hull Design Protection Act (‘VHDPA’or ‘Act’) is a unique form of industrial designprotection under US law, part of the Digital Millennium CopyrightAct 1998. Congress provided this sui generis form of protectionin response to the Supreme Court's decision in Bonito Boatsv Thunder Craft Boats, Inc. This statute has been underutilizeddue to the difficulty in proving infringement, as unintendedconsequences were caused by the way ‘hull’ was originallydefined under the Act. A bill is pending in Congress that addresseshow a ‘hull’ is defined, eliminating any inclusionof ‘deck’ features, when passed, registrants shouldbe able to pursue infringers with greater success. Key points. The recreational boat manufacturing industry hasbeen plagued by low-cost boat makers who think nothing of takinga competitor's boat hull design, and using it as a ‘plug’to make a casting for their own unauthorized manufacturing use,a counterfeiting technique known in the trade as ‘splashing’a hull. In the eight years since enactment, the boating industryhas generally overlooked this form of intellectual propertyprotection due to the difficulty in proving infringement—thatis likely to change soon. Practical significance. The Act includes the right to excludeothers from making, having made, importing, offering for sale,or using in any trade, any boat hull embodying the protectedhull design. The Act provides compensatory recovery for damagesas well as injunctive relief. The newly revised Act has thepotential to provide a low-cost and effective form of intellectualproperty protection for recreational boat manufacturers whobuild hulls from moulded fibreglass or similar materials.     

Does the 'Personal Employment Contract' Provide a Basis for the Reunification of Employment Law?

This article considers Mark Freedland's idea, at the core ofThe Personal Employment Contract, that a unified body of employmentlaw for ‘employees’ and ‘workers’ isboth feasible and desirable. It discusses the origins of thedivision between employees and the self-employed, and considerswhether the rediscovery of the worker concept in the 1990s hasprovided the hoped-for solution to problems concerning the coverageof employment legislation. More generally, it seeks to takeup Freedland's challenge to reconceptualise the employment relationshipas a ‘personal employment contract’ covering bothemployees and the dependent self-employed.     

The Shifting and Multiple Border and International Law

The question of how the ‘border’ is conceived ininternational law, and how it shapes identity and peoples’lives, remains largely unexplored in the international legalliterature. This article seeks to contribute to our understandingof the meaning of the border in international law, and in thecontemporary context, by drawing on the work of the philosopherand political theorist, Étienne Balibar, and by reflecting,in the light of his work, on the recent decision of the Houseof Lords in R v Immigration Officer at Prague Airport. It isshown that international law's focus on the territorial bordermay render invisible other borders which are significant forsubaltern groups, and thereby fail to address the manner inwhich borders affect lives and determine outcomes. Borders arenot stable and ‘univocal’, but instead, ‘multiple’,shifting in meaning and function from group to group. They arealso being ‘exported’ such that a person may experiencea foreign border while still within the territory of their owncountry. In highlighting the multiplicity of borders, the articleseeks to prompt further reflection on the articulation and applicationof norms of international law in a way that addresses the realitiesof the contemporary context.     

International Law and Detention of US Asylum Seekers: Contrasting Matter of D-J- with the United Nations Refugee Convention

US refugee law reflects an ever-increasing conception that theapplication of international standards would constitute an unacceptablerisk to national security. CSR Article 31(2)’s requirementthat refugees ‘shall not’ be detained unless ‘necessary’appears among the chief casualties of such suspicions. US jurisprudenceremains strikingly devoid of reference to Article 31, and 2003’sMatter of D-J- is a prime example. D-J- was an administrativedecision in which the US Attorney General held that nationalsecurity required all US asylum seekers who successfully arrivevia boat must be subject to mandatory detention throughout thecourse of removal proceedings. Despite US accession to the Protocol,Article 31(2) was not mentioned. This article explores what might have happened to D-J- if theRefugee Convention had indeed been applied to his case. Utilizingthe international methodology for treaty interpretation, itapplies Article 31(2) to various aspects of the Attorney General'sdecision. Part 2 argues that under the Supreme Court's CharmingBetsy rule, statutory discretion to detain must be interpretedconsistently with US international obligations. Part 3 concludesthat Article 31(2) of the Refugee Convention grants asylum seekersa right to release whenever their detention is not ‘necessary’.Part 4 proposes a three-part ‘pyramid’ approachto explain the elemental phases of the decision to detain anasylum seeker and examines necessity at each stage. Finally,Part 5 discusses Article 31(2)’s implications regardingevidence and proportion. The premise throughout is that, hadit been applied, the Refugee Convention could have protectedthe interests of both D-J- and ‘national security’.     

Court of Appeal hears 'huge money' divorce case involving offshore trusts

On 7 March, Mr and Mrs John Charman's ‘huge money’divorce reached the Court of Appeal. Last year insurance magnateJohn Charman was ordered by the High Court to pay his formerwife £48 million in what is thought to be the biggestdivorce award in legal history. (See Trusts & Trustees,Volume 12, Issue 9, November 2006, High-value divorces and trusts,p 22, by James Freeman of Speechly Bircham LLP). James Freeman, family law solicitor at City law firm SpeechlyBircham LLP (tel. 020 7427 6584), commented on the case:

TheCourt of Appeal will rule on how parties with unusually highwealth, including offshore trust assets, should be treated ondivorce.     

Hastings-Bass: the true and the spurious

In his article in Trusts and Trustees, 2007, volume 13, No 7,Dakis Hagen discussed the increasingly widespread application,and the uncertain limits, of the ‘Unruly rule in Hastings-Bass’.In this article, co-editor Tony Molloy QC questions whetherwhat has come to be called the Rule in Hastings-Bass is anythingmore than a baseless snare.     

Violence and Massacres -- Towards a Criminal Law of Inhumanity?

The law's responses to massacres seem to vacillate between twomodels: (i) the model of the ‘criminal law of the enemy’inspired by the national criminal law and rendered topical againby the attacks of September 11; (ii) the model of the ‘criminallaw of inhumanity’ symbolized by the paradigm of crimesagainst humanity. The latter model is better suited to takeaccount of the qualitative dimension of massacres, i.e. thefact that they, besides being mass offences (quantitative criterion),also offend against humanity. To establish a ‘criminallaw of inhumanity’ as a model with a universal, or universalizable,dimension, three conditions are necessary, which concern (i)the definition of the crimes, (ii) the assignment of responsibilityand (iii) the nature of the punishment. As for the definitionof the crime, one could implicitly deduce from the list of actsconstituting crimes against humanity (Article 7 of the InternationalCriminal Court Statute) that humanity so protected has two inseparablecomponents: the individuality of each human being, not reducibleto membership in a group, and the equal membership of each inthe human community as a whole. With regard to the second condition,it is not sufficient to hold responsible the de jure or de factoleaders; intermediaries and perpetrators, at all levels of hierarchy,must also be held accountable. As for the third condition, itis not sufficient to content oneself with the watchword of thefight against impunity without bringing up the nature and functionsof the punishment; hence the necessity not only to rethink therole ‘criminal’ law can play in a policy of punishment,but also to focus on prevention, reparation and reconciliation.Finally, the author suggests that the proposed model of a ‘criminallaw of inhumanity’ must be built through the interplaybetween municipal law and international law. On the one hand,the wealth of national legal systems — also with regardto penalties and responsibility — should be better integratedinto international criminal justice; on the other, nationalcriminal systems should be better adapted to conditions of internationallaw, through the introduction into domestic law of the definitionsof the crimes and also the rules for assigning criminal responsibility.     

An Odd Couple: Domestic Crimes and International Responsibility in the Special Tribunal for Lebanon

This article examines one of the most serious flaws of the Statuteof the Special Tribunal for Lebanon (‘STL’): whileit provides that Lebanese domestic law is the sole source ofcrimes over which the STL will have jurisdiction, it at thesame time applies to these domestic crimes uniquely internationalforms of criminal responsibility, namely joint criminal enterpriseand command responsibility. By doing so, the Statute is in violationof the nullum crime sine lege principle, since it would allowfor the conviction of persons who could not be held responsibleunder Lebanese law. The purpose of this article is to highlightsome ways out of this problem.