scholarly journals Revisiting the fraud exception: a critique of United City Merchants v Royal Bank of Canada 40 years on

Legal Studies ◽  
2019 ◽  
Vol 39 (4) ◽  
pp. 656-675
Author(s):  
Katie Richards
Keyword(s):  
Supreme Court ◽  
Case Law ◽  
Bank Of Canada ◽  
Credit Mechanism ◽  
The Us ◽  
Strict Compliance ◽  
Fraud Exception ◽  
Time Of Presentation ◽  
Made In

AbstractMuch has changed in the four decades since United City Merchants v Royal Bank of Canada, in which Lord Diplock established the fraud exception in transactions financed by documentary credit. In particular, the introduction of the UCP 600, case law on nullity documents and amendment to the American fraud exception justify a reconsideration of both the policy arguments underpinning Lord Diplock's rule and the fate of documents known to be forged or null at the time of presentation. Accordingly, two arguments are made in this paper. First, a consideration of the broader exception in the US should prompt a modern Supreme Court to re-examine his Lordship's insistence that a narrow exception was required to preserve the efficiency of the credit mechanism. In addition, it further argues that banks should be entitled to reject known nullities and forgeries as non-complying. This argument would reinstate the doctrine of strict compliance, which was overlooked in United City Merchants, and is based on the clarified definitions in the UCP 600, more recent judicial consideration of nullities and the existence of the ICC's International Maritime Bureau.

THE LEGAL STATUS OF CENTRAL BANK INVESTMENTS UNDER ENGLISH LAW

1998 ◽  
Vol 57 (2) ◽  
pp. 374-390 ◽  
Author(s):  
WILLIAM BLAIR
Keyword(s):  
Legal Status ◽  
Case Law ◽  
Central Banks ◽  
The Public ◽  
State Immunity ◽  
The Us ◽  
English Law ◽  
The Uk ◽  
Special Provision ◽  
Made In

Central banks have enormous sums of money in various forms of investments. When claims are made either against the banks themselves, or against other governmental bodies, issues arise as to whether these assets can be attached, and made available to satisfy judgments. The article explains how central banks are treated in English law. It explains the special provision made in respect of their assets under the State Immunity Act 1978. There is wide immunity from attachment, though questions can arise as to the ownership of such assets. The UK legislation is, in some respects, wider than its counterpart, the US Foreign Sovereign Immunities Act 1976. Recent case law is described in which the English courts have recognised that the public responsibilities of central banks have to be taken account of when determining the extent of their liability to attachment.

scholarly journals Crown and Foreign acts of State Before British Courts

2019 ◽  
pp. 714-732
Author(s):  
Eirik Bjorge ◽  
Cameron Miles
Keyword(s):  
United Kingdom ◽  
Supreme Court ◽  
Separation Of Powers ◽  
Case Law ◽  
The United Kingdom ◽  
The Supreme Court ◽  
Full Picture ◽  
The Relationship ◽  
Made In

The Supreme Court of the United Kingdom undertook in Rahmatullah v. Ministry of Defence and Belhaj v. Straw to demarcate the relationship between the judiciary and the executive with respect to Crown and foreign act of state. This chapter aims to unpack Rahmatullah and Belhaj for the reader and further to use these decisions to enquire into the constitutional underpinnings of the British act of state doctrines—particularly as they pertain to the separation of powers. The chapter concludes that there exists a general uncertainty regarding the scope of the doctrines, and a lack of jurisprudential development with respect to their constitutional underpinnings. But it is undeniable that progress, however minor, has been made in these decisions. The scene has been set in Rahmatullah and Belhaj for further developments—even if litigants will still need to refer to the earlier case law in order to get the full picture.

Binding non-signatories to arbitrate—the United States approach

2021 ◽  
Author(s):  
Andrijana Mišović
Keyword(s):  
New York ◽  
Supreme Court ◽  
Case Law ◽  
The United States ◽  
Arbitration Clause ◽  
Foreign State ◽  
The Supreme Court ◽  
The Us ◽  
Us Supreme Court ◽  
New York Convention

Abstract Parties’ consent to the arbitration is the basis for tribunal’s authority to decide the case and, as such, is of fundamental importance in any arbitration proceedings. Commercial reality, however, often requires from the so called ‘non-signatories’ of the contract containing an arbitration clause to participate in performance of such contract. Being sensitive to such commercial concerns, the US courts have developed different domestic theories for binding the non-signatories. Recent ruling of the US Supreme Court holds that such domestic theories are also applicable in cases governed by Chapter 2 of the Federal Arbitration Act (incorporating New York Convention). However, the Supreme Court did not resolve the question which law should be applied to the issue of binding the non-signatories. Although US courts might be more inclined to apply federal principles to this issue, this is not the only possible solution based on the current SCOTUS case-law. The US court could also resort to the choice of law analysis and apply appropriate (foreign) state principles for binding the non-signatories. However, different states clearly have different views of the issue of binding the non-signatories, as this article briefly outlines. Thus, the same factual pattern might lead to completely different results.

Private Enforcement in the UK

2021 ◽  
pp. 311-336
Author(s):  
Barry J Rodger
Keyword(s):  
Supreme Court ◽  
Competition Law ◽  
Case Law ◽  
Private Enforcement ◽  
Court Ruling ◽  
Supreme Court Ruling ◽  
Opt Out ◽  
The Us ◽  
The Uk

In Chapter 12, Barry Rodger retraces his footsteps in relation to his contributions in both earlier collections on the theme of private enforcement in the UK, with a particular slant on the extent to which consumers have benefited, or may benefit, from statutory and case law developments in the area. Accordingly, this chapter assesses how private enforcement of competition law rights has developed in the UK over the last twenty years. Key legislative developments, inter alia the Competition Act 1998, Enterprise Act 2002 and Consumer Rights Act 2015, have transformed the private enforcement architecture, notably with the introduction, and increasingly significant and enhanced role of the specialist tribunal, Competition Appeal Tribunal, and the availability of an opt-out collective redress mechanism. The chapter assesses the key UK statutory and case law developments, in comparison with the US private antitrust enforcement model, to reflect on the disappointing extent to which effective redress for consumers has been provided to date, despite those legal and institutional developments, although the recent Supreme Court ruling in Merricks should be pivotal in this context.

The Interpretation of Article 30 of the EC Treaty and the “Dormant” Commerce Clause by the European Court of Justice and the US Supreme Court

1999 ◽  
Vol 48 (1) ◽  
pp. 155-167 ◽  
Author(s):  
Georg Haibach
Keyword(s):  
Supreme Court ◽  
Case Law ◽  
European Court Of Justice ◽  
Controversial Issues ◽  
Court Of Justice ◽  
Commerce Clause ◽  
European Court ◽  
The Us ◽  
Us Supreme Court ◽  
Ec Law

There are numerous publications on the interpretation of Article 30 of the EC Treaty by the European Court of Justice1 which for the last 20 years has been one of the most controversial issues in EC law. It is, however, surprising that there is much older, yet strikingly similar, case law of the US Supreme Court which has remained almost unnoticed in Europe. In this article the respective case law of the two courts will be compared. Such a comparison is not only of interest as such, but can also contribute to the discussion about the correct scope of Article 30—which has certainly not yet been exhausted.

scholarly journals Towards a New Justificatory Theory of Comparative Constitutional Law

2015 ◽  
Vol 1 (1) ◽  
pp. 90-117
Author(s):  
Santiago Legarre
Keyword(s):  
Human Rights ◽  
Comparative Analysis ◽  
Supreme Court ◽  
Natural Law ◽  
Constitutional Law ◽  
Case Law ◽  
Legal Practice ◽  
The Us ◽  
Us Supreme Court ◽  
Comparative Constitutional Law

This paper tries to explain what comparative constitutional law is and takes the US legal practice as an example. The presence of comparative analysis is considered both in the academic arena and in the case law of the US Supreme Court. The conclusion of this part of the article is that for comparative constitutional law to be valid its role ought to be restricted by several constraints. The article also suggests that the comparative enterprise only makes sense if the universality of human rights is first acknowledged. The paper next delves into such universality and connects it with notions of new classical natural law that are considered essential in order to adequately understand the problem. Finally, it provides an example of the misuse of comparative constitutionalism.

The Rights of the Accused under the Rome Statute and the US Bill of Rights: Has 20 Years of ICC Jurisprudence Brought Those Together?

2021 ◽  
Vol 20 (2) ◽  
pp. 318-366
Author(s):  
Kacper Zajac
Keyword(s):  
Rome Statute ◽  
Institutional Design ◽  
Case Law ◽  
Bill Of Rights ◽  
Judicial Interpretation ◽  
The Us ◽  
Us Constitution ◽  
Procedural Rights ◽  
Disclosure Obligations ◽  
Made In

Abstract The alleged lower standard of the rights of the accused under the Rome Statute compared to those guaranteed by the US Constitution was one of the most important areas of criticism of the Rome Statute by American scholars. This criticism was made in the early 2000s and was based on the text of the Rome Statute alone, before any ICC jurisprudence existed. This article draws on the 20 years of operation of the ICC to ascertain whether the judicial interpretation and application of the procedural rights of the defendant, guaranteed under the Rome Statute, have made them more compatible with their counterparts under the US Constitution. The premise of this article is that the 20 years of interpretation and application of those rights may have strengthened them to the point where the gap between the procedural guarantees under the Rome Statute and the US Constitution has become negligible. This, in turn, would make the early criticism of the ICC system obsolete, at least insofar as the legal argument is concerned. Accordingly, this paper examines existing jurisprudence of the ICC in the areas of prosecutorial disclosure obligations, admission of evidence and the examination of witnesses. This is for several reasons: firstly, the selected three rights were among those criticised by American scholars in the early 2000s as falling short of what was required under the US Constitution; secondly, unlike some other criticised rights, which reflect the ICC’s institutional design and, therefore, are unlikely to change in scope, the selected three are relatively vaguely phrased, thus making it possible to transform their meaning through judicial interpretation; thirdly, the selected rights have been sufficiently elaborated on by the ICC through case law so as to carry a meaning exceeding what the Rome Statute alone provides. The findings of the study indicate that inasmuch as the ICC’s jurisprudence has moved some aspects of the three areas under examination towards their counterparts under the US Constitution, the procedural rights of the defendant before American courts generally remain more robust.

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