scholarly journals Anti-arbitration injunctions: walking the tightrope

2020 ◽  
Vol 36 (3) ◽  
pp. 347-372
Author(s):  
Richard Garnett
Keyword(s):  
Case Management ◽  
Common Law ◽  
Controversial Issue ◽  
International Arbitration ◽  
English Court ◽  
Law Courts ◽  
Court Of Appeal

Abstract Anti-arbitration injunctions are a controversial issue in the field of international arbitration. While some commentators decry them as an interference with the autonomy and independence of arbitrators, English and other common law courts steadfastly refuse to renounce them entirely. By reference to the framework established in recent decisions of the English Court of Appeal, the article seeks to forge a middle path between making anti-arbitration injunctions available on a discretionary, case management basis and prohibiting them in all cases. An approach that respects both the rights of arbitrators to determine their own jurisdiction and the rights of courts to protect parties from abuse of the arbitral process is advocated.

scholarly journals Doing “Practical Justice” for Duress in Contract Law

2009 ◽  
pp. 253-256
Author(s):  
M.H. Ogilvie
Keyword(s):  
Criminal Law ◽  
Common Law ◽  
Contract Law ◽  
Complex Case ◽  
Undue Influence ◽  
Trial Judge ◽  
English Court ◽  
Conflict Of Laws ◽  
The Common ◽  
Court Of Appeal

Cases of duress in contract law are few and far between. Most are concerned with improper threats or taking advantage of a weaker party to procure a contract rather than with actual physical threats of the “[y]our money or your life” variety, which are more likely to be controlled by the criminal law. A recent decision on a preliminary issue of law in relation to duress in the English Court of Appeal answered an interesting question that appears never to have been raised in earlier cases about duress, that is, whether rescission of a contract can be granted where restitution is impossible because one of the parties has destroyed documents relating to the contract as required by the contract so that they could not be restored. The trial judge found that rescission could not be granted and that no other remedy was available in the common law for duress, but the Court of Appeal reversed that finding by assimilating the fact situation with those in which equity has done “practical justice,” thereby further fusing the common law and equity relating to duress and undue influence, and possibly also fraud as well. The facts of this highly complex case, which also involved conflict of laws, mistake, frustration, and uncertainty have yet to be resolved at trial, but the Court of Appeal entertained two preliminary questions of law, duress, and conflict of laws before sending the case to trial. This comment is focused on the duress point.

scholarly journals Victim personal statements in managing victims’ voices in sentencing in Northern Ireland: taking a more procedural justice approach

2017 ◽  
Vol 68 (4) ◽  
pp. 555-576
Author(s):  
Luke Moffett
Keyword(s):  
Criminal Justice ◽  
Northern Ireland ◽  
Procedural Justice ◽  
Common Law ◽  
English Court ◽  
Victim Satisfaction ◽  
Criminal Justice Systems ◽  
The Impact ◽  
Court Of Appeal ◽  
The Eu

Victim personal statements (VPS) have been introduced in a number of common law criminal justice systems. Although they have been espoused as important in ensuring victims’ ‘voices’ are ‘heard’ in sentencing, this article examines the extent of improving victim satisfaction and procedural justice in Northern Ireland. In light of increasing juridification of victim participation through the VPS by the EU and the English Court of Appeal, its impact on sentencing has received mixed views amongst victims, intermediaries and legal practitioners. Drawing from 24 interviews with judges, lawyers and intermediaries, this article finds that greater attention should be paid to vulnerable victims’ inclusion and that judges should better articulate the impact the VPS has on sentencing and the significance of such statements in acknowledging the victim’s experience, rather than engendering harsher sentences.

‘I, Me, Mine’: Bodies, Parts and Property

1998 ◽  
Vol 3 (4) ◽  
pp. 299-317 ◽  
Author(s):  
Andrew Grubb
Keyword(s):  
Common Law ◽  
Legal Protection ◽  
Recent Case ◽  
Body Parts ◽  
English Court ◽  
Commercial Exploitation ◽  
The Common ◽  
English Law ◽  
The Impact ◽  
Court Of Appeal

The idea that human bodies and their parts are ‘property’ has traditionally found little support in English law. By contrast, philosophers have mused at the prospect of persons owning themselves and the justice of self-ownership and its implications for the product of a person's labours. There are signs that the common law may be prepared to recognise that parts of a body are ‘property’ and subject to control by their source or another. In the recent case of R v Kelly, the English Court of Appeal decided that parts of corpses held as anatomical specimens were ‘property’ and could be stolen. The impact of the court's view may be considerable in respect of tissue and parts held by medical or other institutions for research, storage, archival or transplantation purposes; conferring legal protection where otherwise there would be none. What, however, of body parts or tissue taken from living persons? Is this ‘property’ and, if so, who has “rights” over it? The implications are considerable for patients and others, particularly researchers where commercial exploitation is envisaged.

scholarly journals The Contribution of the Prague Rules to Promoting Efficiency in International Arbitration

2020 ◽  
pp. 367-377
Author(s):  
Gisèle Stephens-Chu ◽  
Camille Teynier
Keyword(s):  
Case Management ◽  
Common Law ◽  
Civil Law ◽  
Active Role ◽  
International Arbitration ◽  
Adversarial System ◽  
Oral Testimony ◽  
Rule Making

The Prague Rules are intended to provide efficiency and reduce costs in conducting arbitration proceedings. The Rules are based on the position that the practice and procedure of international arbitration is too heavily influenced by the adversarial system found in common law jurisdictions, and that the inquisitorial judicial practices of civil law jurisdictions are more conducive to a “streamlined procedure”. In this paper, the authors first consider whether this predicate is accurate and fair. Are adversarial practices the source of inefficiency in international arbitration, or can the reasons be found elsewhere? Next, they compare certain features of the Prague Rules to the IBA Rules on the Taking of Evidence, and examine how both sets of rules differ in substance. Moreover, they address the criticisms that the Prague Rules may pose yet another case of useless rule-making. In fact, the authors critically assess the consequences of an active role of arbitral tribunals in case management and the appropriateness of a controlled use of documentary production, witness evidence (particularly in oral testimony) and appointment of experts.

2 The Impact of U.S. Litigation

2016 ◽  
Author(s):  
Armas Oliver J ◽  
Pieper Thomas N
Keyword(s):  
Case Management ◽  
Direct Product ◽  
Legal System ◽  
Common Law ◽  
International Arbitration ◽  
Adversarial Model ◽  
The Impact ◽  
The U.S

This chapter provides an account of some of the salient aspects of the U.S. legal system that will help non-U.S. readers identify the “litigation baggage” U.S. lawyers may bring to an international arbitration. U.S.-trained lawyers acting as counsel or arbitrators in such cases will naturally bring with them into arbitration certain expectations that flow from their U.S. litigation experience (i.e., the so-called “litigation baggage”), which may differ from those of their non-U.S. trained colleagues. This is a direct product of the adversarial model employed by the U.S. common-law legal system. In the adversarial model, the lawyers take control of the litigation as advocates through much of the process. U.S. litigators will seek to be more involved in case management, feel greater entitlement to broad discovery, and prepare for a witness-oriented hearing.

The Unity of the Common Law and the Ending of Appeals to the Privy Council

2005 ◽  
Vol 54 (1) ◽  
pp. 197-210 ◽  
Author(s):  
KJ Keith
Keyword(s):  
New Zealand ◽  
Common Law ◽  
Privy Council ◽  
English Court ◽  
James Cook ◽  
Final Volume ◽  
The Common ◽  
The Law ◽  
Court Of Appeal ◽  
Do So

In 1769, by a nice coincidence, Captain James Cook made landfall in New Zealand, the first British mariner to do so, and William Blackstone published the final volume of hisCommentaries on the Law of England. Blackstoněs discussion of the application of the law of Englandto newly acquired colonies is not completely coherent, but it does give a strong sense that much, if not all, of the common law did come to apply to many, if not all, of them.1The Privy Council was reminded of this, with express reference to Blackstone, in November 2003 when it was asked to determine whether the rule inSmith v Selwyn,2a decision of the English Court of Appeal given in 1914, was part of the law of Jamaica.3

Pro-Arbitration Policy in the Australian Courts — the End of Eisenwerk?

2013 ◽  
Vol 41 (2) ◽  
pp. 299-331
Author(s):  
Benjamin Hayward
Keyword(s):  
Case Law ◽  
International Arbitration ◽  
Policy Context ◽  
Australian Case ◽  
Federal Jurisdiction ◽  
Court Of Appeal ◽  
Policy Attention

International arbitration is an important area of federal jurisdiction and federal legislative competence, and has attracted significant policy attention in Australia. This paper undertakes a study of pro-arbitration judicial policy in recent arbitration-related Australian case law which touches upon the continuing applicability of the controversial 1999 Eisenwerk decision of the Queensland Court of Appeal. Against this pro-arbitration judicial policy context, this paper reviews five Eisenwerk-related cases handed down between 2010 and 2012. It concludes that despite pro-arbitration judicial policy being embedded as a requirement of reasoning in decisions under the International Arbitration Act 1974 (Cth), there is mixed evidence of such policy in the cases surveyed. This paper concludes that the extent to which this policy is evidenced largely corresponds with the degree to which contemporary decisions have departed from Eisenwerk.

The New Private Law and Intellectual Property

2020 ◽  
pp. 408-426
Author(s):  
Molly Shaffer Van Houweling
Keyword(s):  
Intellectual Property ◽  
Common Law ◽  
Private Law ◽  
Concepts And Categories ◽  
The Common ◽  
The Law ◽  
Law Courts ◽  
Legal Concepts

This chapter studies intellectual property (IP). A hallmark of the New Private Law (NPL) is attentiveness to and appreciation of legal concepts and categories, including the traditional categories of the common law. These categories can sometimes usefully be deployed outside of the traditional common law, to characterize, conceptualize, and critique other bodies of law. For scholars interested in IP, for example, common law categories can be used to describe patent, copyright, trademark, and other fields of IP as more or less “property-like” or “tort-like.” Thischapter investigates both the property- and tort-like features of IP to understand the circumstances under which one set of features tends to dominate and why. It surveys several doctrines within the law of copyright that demonstrate how courts move along the property/tort continuum depending on the nature of the copyrighted work at issue—including, in particular, how well the work’s protected contours are defined. This conceptual navigation is familiar, echoing how common law courts have moved along the property/tort continuum to address disputes over distinctive types of tangible resources.

Science, Medicine and the U.S. Common Law Courts

2020 ◽  
pp. 1-29
Author(s):  
Carl Meyer
Keyword(s):  
Common Law ◽  
Law Courts ◽  
The U.S
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