The Judicial Committee of the Privy Council: Common Law and its Local Variations in the Commonwealth

2016 ◽  
pp. 75-92
Keyword(s):  
Common Law ◽  
Privy Council

Exclusive jurisdiction clauses in international trust deeds

Legal Studies ◽  
2021 ◽  
pp. 1-18
Author(s):  
Ardavan Arzandeh
Keyword(s):  
Common Law ◽  
Privy Council ◽  
Exclusive Jurisdiction ◽  
Contentious Issue

Abstract Jurisdiction clauses commonly feature in high-value international contracts. Recently, these clauses are also increasingly utilised in international trust instruments. At common law, a contentious issue vis-à-vis exclusive jurisdiction clauses in trust deeds has been whether they should be upheld in the same way as their contractual equivalents. In obiter remarks in Crociani v Crociani, in 2014, the Privy Council stated that these clauses should be afforded less weight in trusts than in contracts. However, as this paper seeks to demonstrate, the reasoning underpinning the treatment of exclusive jurisdiction clauses in trust deeds in this manner is questionable. The paper's key contention is that exclusive jurisdiction clauses in trust deeds should be enforced in the same way as those in contracts. Accordingly, an exclusive jurisdiction clause in a trust instrument should be upheld, unless the claimant can establish a strong cause why the matter should be litigated elsewhere.

scholarly journals Thabo Meli Revisited: The Pernicious Effects of Result-Driven Decisions

2013 ◽  
Vol 77 (1) ◽  
pp. 41-55
Author(s):  
Kenneth J. Arenson
Keyword(s):  
United Kingdom ◽  
Criminal Justice ◽  
Separation Of Powers ◽  
Common Law ◽  
Limited Extent ◽  
Natural Consequence ◽  
Privy Council ◽  
The Public ◽  
Adversarial System ◽  
The Common

Despite the hackneyed expression that ‘judges should interpret the law and not make it’, the fact remains that there is some scope within the separation of powers doctrine for the courts to develop the common law incrementally. To this extent, the courts can effectively legislate, but only to this limited extent if they are to respect the separation of powers doctrine. On occasion, however, the courts have usurped the power entrusted to Parliament, and particularly so in instances where a strict application of the existing law would lead to results that offend their personal notions of what is fair and just. When this occurs, the natural consequence is that lawyers, academics and the public in general lose respect for both the judges involved as well as the adversarial system of criminal justice. In order to illustrate this point, attention will focus on the case of Thabo Meli v United Kingdom in which the Privy Council, mistakenly believing that it could not reach its desired outcome through a strict application of the common law rule of temporal coincidence, emasculated the rule beyond recognition in order to convict the accused. Moreover, the discussion to follow will demonstrate that not only was the court wrong in its belief that the case involved the doctrine of temporal coincidence, but the same result would have been achieved had the Council correctly identified the issue as one of legal causation and correctly applied the principles relating thereto.

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.

Aspects of theBeit-ElandEilon MorehCases

1980 ◽  
Vol 15 (4) ◽  
pp. 476-495
Author(s):  
Julius Stone
Keyword(s):  
International Law ◽  
Common Law ◽  
Exact Nature ◽  
Executive Order ◽  
Privy Council ◽  
The Law ◽  
The Moment

Judges whose daily tasks are to interpret the law of their own State frequently find difficulties in expressing the exact nature and hierarchical value of the rules of international law, which from time to time they are required in some sense to apply.Perhaps the classical example of this in countries applying the English common law is that of prize courts and the law which they should apply. Under international law belligerent States, by whom maritime captures (prizes) may be made, have a duty to create some forum before which issues can be tried as to the lawfulness of such captures and its consequences. As Lord Parker observed inThe Zamoraas to the title in the property seized, “from the moment of seizure the rights of all parties are governed by international law”. In the final ruling in that case, the Privy Council held that the neutral property at issue had been unlawfully requisitioned, even though such requisition was authorised by a British Executive Order-in-Council, because that Order-in-Council itself was inconsistent with the rules of international law governing requisition of neutral property.

The Development of the High Court's Willingness to Overrule Common Law Precedent

2017 ◽  
Vol 45 (2) ◽  
pp. 291-314
Author(s):  
Sonali Walpola
Keyword(s):  
National Identity ◽  
Common Law ◽  
Detailed Account ◽  
State Supreme Courts ◽  
Privy Council ◽  
Supreme Courts ◽  
High Court ◽  
House Of Lords ◽  
The 1960S ◽  
Economic Ties

In its first 60 years the High Court showed a complete deference to English precedent, and did not of itself initiate changes to common law doctrines. The High Court took its first steps towards autonomy in common law matters only in the 1960s when it abandoned its policy of following decisions of the House of Lords, thereby ending the practice of automatically incorporating English common law developments into Australian law. It is shown that the Court acquired a willingness to overturn ‘recent’ common law rules (those of 20th century origin) after the abolition of appeals from the High Court to the Privy Council in the 1970s. The elimination of appeals from State Supreme Courts to the Privy Council in the 1980s led to a further broadening of the range of doctrines the Court was prepared to reconsider. Notably, since the 1990s, the Court has shown its willingness, in compelling circumstances, to overrule ancient common law doctrines acquired before Federation. This paper gives a detailed account of the emergence and expansion of the High Court's willingness to overrule common law precedent. It reveals how the High Court's autonomy in common law matters was developed in distinct stages that are linked to Australia's changing legal, political and socio-economic ties with Britain, and its growing sense of an independent national identity.

scholarly journals ACCESSORY LIABILITY: PERSISTING IN ERROR

2017 ◽  
Vol 76 (01) ◽  
pp. 7-11
Author(s):  
Beatrice Krebs
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
South Australia ◽  
Privy Council ◽  
Criminal Enterprise ◽  
High Court ◽  
Joint Criminal Enterprise ◽  
Bodily Injury ◽  
Uk Supreme Court ◽  
High Court Of Australia

IN Miller v The Queen [2016] HCA 30, the High Court of Australia (HCA) declined to follow the Privy Council and UK Supreme Court (UKSC) in abolishing the doctrine of extended joint criminal enterprise, as PAL is known in South Australia. Under the Australian doctrine, liability for murder is imposed where an individual “is a party to an agreement to commit a crime and foresees that death or really serious bodily injury might be occasioned by a co-venturer acting with murderous intention and he or she, with that awareness, continues to participate in the agreed criminal enterprise” (at [1]). This reflects the very position that was abandoned in Jogee [2016] UKSC 8; [2016] 2 W.L.R. 681 Ruddock v The Queen UKPC 7 as a “wrong turn” of the English common law.

Contracts for the Benefit of Third Parties in Malaysia

2018 ◽  
Author(s):  
David Fung
Keyword(s):  
Property Rights ◽  
Subject Matter ◽  
Common Law ◽  
Third Parties ◽  
Third Party ◽  
Privy Council ◽  
The Common ◽  
Clear Statement

This chapter examines the Malaysian position on privity and third party beneficiaries. Given that the Malaysian Contracts Act 1950 (‘MCA 1950’) is virtually a copy of the Indian Contract Act 1872, the issues are, unsurprisingly, similar. The absence of a clear statement of the rule in the MCA 1950 meant that its existence was susceptible to challenge. It was only in Kepong Prospecting Ltd v Schmidt, when the Privy Council pronounced on the fundamentality of the privity rule, that the matter was finally settled. This chapter demonstrates the ingenuity and the limitations of the common law. The strategy of finding an express trust of a promise finds a familiar trajectory in the use of that strategy in England. The need to prove the three certainties of intention to create a trust, beneficiaries, and subject matter emphasizes the clear intention to create property rights. An alternative explored by the author relates to the institutional constructive trust which requires a proprietary base by which the constructive trust may be found.

HUMAN RIGHTS AND THE MANDATORY DEATH PENALTY IN THE PRIVY COUNCIL

2002 ◽  
Vol 61 (3) ◽  
pp. 499-544
Author(s):  
Thomas Roe
Keyword(s):  
Human Rights ◽  
Death Penalty ◽  
Common Law ◽  
Simple Rule ◽  
European Convention ◽  
Privy Council ◽  
Independent States

At common law the penalty for murder was death. This simple rule came to apply to many territories of the Crown. It persisted, sometimes in modified form, in many territories now independent States. At independence such States adopted entrenched Constitutions heavily influenced by the European Convention on Human Rights (ECHR). The final appeal from several of these States lies to the Judicial Committee of the Privy Council.

scholarly journals A Question of Seduction: The Case of MacMillan v. Brownlee

1969 ◽  
pp. 447
Author(s):  
Thomas Thorner ◽  
G. N. Reddekopp
Keyword(s):  
Social History ◽  
Common Law ◽  
Detailed Account ◽  
Legal Issue ◽  
Privy Council ◽  
Administration Of Justice ◽  
The Common ◽  
The Law

In a detailed account of the action for seduction involving a former premier of Alberta and his stenographer, the authors review the decisions of the courts from trial level to Privy Council The common law and the effect of statute are discussed in an explanation and analysis of the law of seduction. By reviewing newspaper accounts of public reac tion to the lawsuit, the authors are able to provide both an interesting perspective on Alberta's social history and also a glimpse at an important yet often neglected legal issue: the public's perception of the administration of justice.

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