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 UK courts and EU law post-Brexit

2021 ◽  
Vol 20 (3) ◽  
pp. Christopher-Vajda
Author(s):  
Christopher Vajda
Keyword(s):  
Supreme Court ◽  
Transition Period ◽  
Case Law ◽  
Eu Law ◽  
National Courts ◽  
The Supreme Court ◽  
The Future ◽  
The Status ◽  
The Uk ◽  
Court Of Appeal

Following the expiry on 31 December 2020 of the ‘transition period’ under the UK/EU Withdrawal Agreement, the relationship between UK and EU law had changed. Whilst much EU legislation at that date will continue to apply in UK law as ‘retained EU law’ and judgments of the EU courts handed down before that date will remain binding on UK courts as ‘retained EU case law’, the Court of Appeal and Supreme Court can depart from that case law. Whilst EU court judgments handed down after that date are not binding on UK courts, they may be taken into account. This article considers both the status of EU retained case law and when the Supreme Court and Court of Appeal may depart from it, and the future of EU law that is not ‘retained EU case law’ and how judgments of the European Courts and national courts of its Member States may influence UK judges in the future.

scholarly journals The Fiduciary Duties of Joint Venture Parties – When do They Arise and What Do They Comprise?

2011 ◽  
Vol 42 (1) ◽  
pp. 117 ◽  
Author(s):  
Jane Knowler ◽  
Charles Rickett
Keyword(s):  
Joint Ventures ◽  
Joint Venture ◽  
Case Law ◽  
The Other ◽  
Common Goal ◽  
Fiduciary Duties ◽  
Fiduciary Obligations ◽  
Australian Case

Joint Ventures are often used by parties in commercial enterprises where parties seek to achieve a common goal. One issue which is increasingly contentious is the extent to which, if any, joint venture parties owe each other fiduciary obligations. This paper refutes, as a dangerous heresy, the idea that joint venture relationships are discrete legal relationships that are inherently fiduciary in nature. The majority of self-styled "joint ventures" are, invariably, nothing more in legal terms than contracts. If parties are going to be bound by fiduciary duties, over and above the contractual duties they owe each other, this will only be so by virtue of the particular arrangement they have entered into which, on a thorough examination of the facts, is found to require each party to give unstinting loyalty to the other. Recent Australian case law bears this out.

scholarly journals The Islamic Law of Marriage and Inheritance in Kenya

2021 ◽  
pp. 1-25
Author(s):  
Jamil Ddamulira Mujuzi
Keyword(s):  
Human Rights ◽  
Islamic Law ◽  
Case Law ◽  
Equal Rights ◽  
High Court ◽  
Personal Status ◽  
The Right ◽  
Law Of Succession ◽  
Court Of Appeal ◽  
Islamic Marriage

Abstract Article 24(4) of the Constitution of Kenya qualifies the right to equality “to the extent strictly necessary for the application of” Islamic law “in matters relating to personal status, marriage, divorce and inheritance”. Section 3 of the Marriage Act provides that, although spouses have equal rights during marriage and at its dissolution, “the parties to an Islamic marriage shall only have the rights granted under Islamic law”. The Law of Succession Act states that it is generally not applicable to the estate of a deceased Muslim. In this article, the author examines case law from the Kadhi's Court, the High Court and the Court of Appeal on issues of Muslim marriages and inheritance. These cases illustrate, in some instances, the tensions between Islamic law and human rights.

Proprietary Rights and Insolvency

2016 ◽  
Author(s):  
Richard Calnan
Keyword(s):  
First Principles ◽  
Common Law ◽  
Case Law ◽  
Reference Source ◽  
Property Law ◽  
Privy Council ◽  
Current State ◽  
The Supreme Court ◽  
The Status ◽  
Court Of Appeal

This book explains how a creditor of an insolvent debtor can take priority over other creditors by claiming a proprietary interest in assets held by the debtor, and concentrates on the circumstances in which proprietary interests are created by operation of law or are implied from the arrangements between the parties. This is a subject of particular importance and difficulty in common law systems because of the changeable nature of equitable proprietary interests, and this book provides a clear and structured explanation of the current state of the law, with detailed reference to case law from England and Wales as well as Commonwealth jurisprudence, and suggests how it might be clarified and simplified by returning to first principles. The new edition considers a number of important developments which pertain to proprietary rights and insolvency. It evaluates the key decision of the Supreme Court in FHR European Ventures v Cedar Capital Partners. Although this has settled the question of whether constructive trusts extend to bribes, it has raised more general issues regarding the approach of the courts to the imposition of proprietary remedies, which the book explores. It also covers recent Privy Council and Court of Appeal decisions concerning constructive notice (Credit Agricole v Papadimitrou, Central Bank of Ecuador v Conticorp, and SFO v Lexi), as well as interesting issues concerning the new status of intangibles (Armstrong v Winnington) and the status of the anti-deprivation rule (Belmont Park v BNY). Proprietary Rights and Insolvency is a lucid and practical reference source on insolvency and property law.

Company Directors: Duties, Liabilities, and Remedies

2017 ◽  
Keyword(s):  
Case Law ◽  
Third Party ◽  
Court Decisions ◽  
Cayman Islands ◽  
Market Abuse ◽  
Company Directors ◽  
The Law ◽  
The Uk ◽  
Law And Legislation ◽  
Court Of Appeal

This is a new edition of the established authority on the law relating to directors of companies incorporated under the UK Companies Acts. The new edition features all important developments in the law including the Small Business, Enterprise and Employment Act 2015 which improves transparency (including requiring directors to be natural persons unless exceptions apply), simplifies company filing requirements, clarifies the application of general duties to shadow directors, modernises directors’ disqualification and reforms insolvency law to facilitate proceedings where there has been wrongdoing. There has been a wealth of new case law relevant to directors’ duties before the English courts, all of which are analysed and explained, including the Supreme Court decisions in Prest v Petrodel Resources, Jetivia v Bilta (UK), FHR European Ventures v Cedar Capital Partners and Eclairs Group v JKX Oil & Gas, the Court of Appeal decisions in Smithton Ltd v Naggar and Newcastle International Airport v Eversheds as well as the important High Court decisions in Universal Project Management Services v Fort Gilkicker, Madoff Securities International v Raven and the wrongful trading case, Re Ralls Builders. Non-UK cases are also analysed including Weavering Macro Fixed Income Fund Ltd v Peterson in the Cayman Islands’ Court of Appeal and the 2016 decision of the Hong Kong Court of Final Appeal Chen v Jason. In keeping with developments in case law and legislation the book now includes expanded coverage of multiple derivatives claims, directors’ exposure to third party claims and a new chapter on civil remedies for market abuse. The third edition is a complete reference work on the law relating to company directors and is the first port of call for all serious corporate lawyers and scholars on this subject.

13. Voluntary manslaughter

2021 ◽  
pp. 540-588
Author(s):  
David Ormerod ◽  
Karl Laird
Keyword(s):  
Common Law ◽  
Case Law ◽  
Self Control ◽  
The Other ◽  
Bodily Harm ◽  
Loss Of Self ◽  
Grievous Bodily Harm ◽  
Court Of Appeal ◽  
Partial Defences ◽  
Diminished Responsibility

Manslaughter is defined by common law as any unlawful homicide that is not murder. The offence is limited by murder at one extreme and accidental killing at the other. Manslaughter can be either ‘voluntary’ or ‘involuntary’. This chapter deals with voluntary manslaughter: this occurs when someone had the intention to kill or do grievous bodily harm, but relies on a partial defence to murder. The two partial defences considered in this chapter are loss of self- control and diminished responsibility (suicide pact is dealt with in Ch 15). This chapter scrutinizes the defences available to the accused and in particular the developing case law under the Coroners and Justice Act 2009 on loss of control and diminished responsibility, including the Supreme Court’s decision in Golds and the series of Court of Appeal cases since that decision.

‘Arrest, Arrest, Arrest’

2021 ◽  
pp. 283-315
Author(s):  
Richard Martin
Keyword(s):  
Human Rights ◽  
Due Process ◽  
Case Law ◽  
Human Rights Law ◽  
High Court ◽  
Legal Standards ◽  
Everyday Work ◽  
The Face ◽  
Court Of Appeal ◽  
Police Practices

The focus of the empirical account of human rights in Part IV is on the suspect’s right to liberty in the context of police custody. In keeping with the style adopted in Part III, the discussion that follows seeks to closely analyse how particular aspects of police practices and decision-making interact with human rights law standards. The aim in this chapter is to explore how the three statutory safeguards established in PACE to protect the suspect’s right to liberty have fared in the face of organizational pressure to detect and ‘clear up’ crime. Using the three due process safeguards established in PACE to form a framework for this chapter’s analysis, the chapter explores how officers apply, dismiss, interpret and reconstruct each of these safeguards in their everyday work. Once again, the richness of this analysis, specifically its appreciation for how law and practice do (or do not) interact, is enhanced by paying close attention to the development of lines of authority in the case law that have, it is argued, watered down the legal standards officers must apply. This analysis of the case law is based on recent judgments from the High Court and Divisional Court of Northern Ireland, as well as from the Court of Appeal in England and Wales.

6. The Doctrine of Judicial Precedent

2019 ◽  
pp. 160-195
Author(s):  
James Holland ◽  
Julian Webb
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Case Law ◽  
Stare Decisis ◽  
Legal Principles ◽  
Legal Problems ◽  
The Supreme Court ◽  
Pure Case ◽  
The Impact ◽  
Court Of Appeal

This chapter examines the use of case law to solve legal problems. In the study and practice of law we seek to analyse legal principles; and the ‘principles’ in English law are derived from pure case law or from case law dealing with statutes. The discussions cover the idea of binding precedent (stare decisis); establishing the principle in a case; the mechanics of stare decisis; whether there are any other exceptions to the application of stare decisis to the Court of Appeal that have emerged since 1944; whether every case has to be heard by the Court of Appeal before it can proceed to the Supreme Court; precedent in the higher courts; other courts; and the impact of human rights legislation.

Medical Law and Ethics

2018 ◽  
Author(s):  
Jonathan Herring
Keyword(s):  
Case Law ◽  
Medical Law ◽  
Legal Principles ◽  
Codes Of Practice ◽  
Reality Check ◽  
Law And Ethics ◽  
The Supreme Court ◽  
Feminist Perspectives ◽  
The Law ◽  
Court Of Appeal

Medical Law and Ethics covers not only the core legal principles, key cases, and statutes that govern medical law, but also explores the key ethical debates and dilemmas that exist in the field to ensure that the law is firmly embedded within its context. The title highlights these debates, drawing out the European angles, religious beliefs, and feminist perspectives which influence legal regulations. Other features such as ‘a shock to the system’, ‘public opinion’, and ‘reality check’ introduce further sociological aspects, contributing to the way in which the subject is approached. This new edition also includes coverage of new Codes of Practice issued by the Human Tissue Authority and the changes in the structure of the NHS. It also outlines important case law developments on the law on mental capacity and euthanasia, including the Charlie Gard litigation, the decision of the Supreme Court in Montgomery, and the Court of Appeal in Conway.

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