scholarly journals Understanding Tracing Rules

2016 ◽  
Vol 16 (2) ◽  
pp. 1
Author(s):  
The Hon J Edelman
Keyword(s):  
United Kingdom ◽  
Supreme Court ◽  
Practical Importance ◽  
The United Kingdom ◽  
The Law

<p><em>This year is the 200</em><em>th </em><em>anniversary of one of the leading decisions concerning the law of tracing in equity. Celebrations have not been widely held. Two centuries after this decision, the rules of tracing in equity remain very difficult to understand and very difficult to justify. But they are of immense practical importance including to the law of trusts, claims based on fraud, and claims against remote recipients of property. This year, the United Kingdom Supreme Court has also returned to the topic in the context of a claim based on non-contractual subrogation. This article explains some of the persistent problems in the law of tracing and shows how to understand the operation of equitable tracing rules.</em></p>

Surrogacy and public policy

2021 ◽  
Vol 72 (3) ◽  
pp. 588-595
Author(s):  
Elaine O’Callaghan
Keyword(s):  
Public Policy ◽  
United Kingdom ◽  
Supreme Court ◽  
Legal Framework ◽  
Commercial Surrogacy ◽  
The United Kingdom ◽  
The Supreme Court ◽  
The Law

The Supreme Court in the United Kingdom has held that it is not contrary to public policy to award damages in tort to fund a commercial surrogacy in another jurisdiction where this is lawful. This significant decision, in the case of Whittington Hospital NHS Trust v XX [2020] UKSC 14, will potentially have an impact on the regulation and reform of surrogacy law in the United Kingdom, Ireland and internationally. The judgment delivered by Lady Hale draws attention to multiple inconsistencies in the law, and it highlights, in particular, the need for effective regulation of domestic surrogacy. Legislators face an important and imminent challenge to reconcile the reality of commercial surrogacy with a deficient legal framework. This article seeks to highlight some of the important issues which this case has raised when considering regulation and reform of surrogacy law.

A Supreme Court for the United Kingdom?

Legal Studies ◽  
2004 ◽  
Vol 24 (1-2) ◽  
pp. 36-44 ◽  
Author(s):  
Brenda Hale
Keyword(s):  
United Kingdom ◽  
Supreme Court ◽  
Question Mark ◽  
The United Kingdom ◽  
The Law ◽  
Consultation Paper ◽  
Law Commission

The Government's Consultation Paper does not have a question mark in its title. It does not purport to be a serious discussion of the role of a Supreme Court in a democracy. This is scarcely to be expected of such a document or its respondents, so I propose to respond in its own terms rather than on the loftier plane usually adopted by contributors to this journal. More unexpectedly, the Consultation Paper does not even put forward a serious set of options to consider. At the Law Commission, we always had (at least a metaphorical) question mark in our title because we almost always put forward two options which do not appear in this consultation: the ‘do nothing’ and the ‘let’s abolish it' options. Both have a lot to be said for them here.

Judicial Development of the Criminal Law by the Supreme Court

2020 ◽  
Author(s):  
Findlay Stark
Keyword(s):  
United Kingdom ◽  
Supreme Court ◽  
Criminal Law ◽  
Criminal Proceedings ◽  
The United Kingdom ◽  
The Supreme Court ◽  
Ex Ante ◽  
The Law ◽  
The Government ◽  
Law Commission

Abstract It will be argued that the United Kingdom Supreme Court (UKSC) should be bound by certain restrictions on its ability to develop the substantive criminal law: (i) the UKSC’s decision must plausibly be part of an (albeit edited) continuing legal narrative, not a fresh ‘striking out’ in a new direction; (ii) the UKSC should not make decisions that permit the conviction of the defendant when this development could not reasonably have been predicted, ex ante; (iii) the UKSC should take account of the ‘mood music’ (if any) of Parliament, the government and the Law Commission when deciding whether to develop the criminal law in a particular manner; and (iv) the UKSC should bear in mind the practical and epistemic limitations inherent in criminal proceedings (even on appeal). Recent judgments of the UKSC display insufficient regard for these considerations. Attention will be given, specifically, to Jogee (on complicity) and Ivey (on dishonesty).

Surrogacy and public policy

2021 ◽  
Vol 72 (AD2) ◽  
pp. 29-35
Author(s):  
Elaine O'Callaghan
Keyword(s):  
Public Policy ◽  
United Kingdom ◽  
Supreme Court ◽  
Legal Framework ◽  
Commercial Surrogacy ◽  
The United Kingdom ◽  
The Supreme Court ◽  
The Law

The Supreme Court in the United Kingdom has held that it is not contrary to public policy to award damages in tort to fund a commercial surrogacy in another jurisdiction where this is lawful. This significant decision, in the case of Whittington Hospital NHS Trust v XX [2020] UKSC 14, will potentially have an impact on the regulation and reform of surrogacy law in the United Kingdom, Ireland and internationally. The judgment delivered by Lady Hale draws attention to multiple inconsistencies in the law, and it highlights, in particular, the need for effective regulation of domestic surrogacy. Legislators face an important and imminent challenge to reconcile the reality of commercial surrogacy with a deficient legal framework. This article seeks to highlight some of the important issues which this case has raised when considering regulation and reform of surrogacy law.

scholarly journals The Limits of Arbitration Law in Addressing Cultural Diversity: The Example of Ismaili Arbitration in the United Kingdom

Laws ◽  
2021 ◽  
Vol 10 (2) ◽  
pp. 47
Author(s):  
Sandrine Brachotte
Keyword(s):  
United Kingdom ◽  
Cultural Studies ◽  
Cultural Diversity ◽  
Supreme Court ◽  
Legal Pluralism ◽  
The Other ◽  
The United Kingdom ◽  
Arbitration Clause ◽  
The Supreme Court ◽  
Employment Equality

This article studies religious arbitration from the perspective of global legal pluralism, which embraces both normative plurality and cultural diversity. In this context, the article considers that UK arbitration law regulates both commercial and religious arbitration while relying on a monist conception of arbitration. It further identifies two intertwined issues regarding cultural diversity, which find their source in this monist conception. Firstly, through the study of Jivraj v. Hashwani ([2011] UKSC 40), this article shows that the governance of religious arbitration may generate a conflict between arbitration law and equality law, the avoidance of which can require sacrificing the objectives of one or the other branch of law. The Jivraj case concerned an Ismaili arbitration clause, requiring that all arbitrators be Ismaili—a clause valid under arbitration law but potentially not under employment-equality law. To avoid such conflict, the Supreme Court reduced the scope of employment-equality law, thereby excluding self-employed persons. Secondly, based on cultural studies of law, this article shows that the conception of arbitration underlying UK arbitration law is ill-suited to make sense of Ismaili arbitration. In view of these two issues, this article argues that UK arbitration law acknowledges normative multiplicity but fails to embrace the cultural diversity entangled therewith.

scholarly journals Insurance related problems in bareboat charter agreements

2021 ◽  
Vol 6 (1) ◽  
Author(s):  
Albano Gilabert Gascón
Keyword(s):  
United Kingdom ◽  
Supreme Court ◽  
Third Parties ◽  
Insurance Contract ◽  
The United Kingdom ◽  
The Supreme Court ◽  
The One ◽  
The Baltic ◽  
The Relationship

AbstractIn 2017, the majority of the United Kingdom Supreme Court held in its judgment in the Gard Marine and Energy v China National Chartering (The Ocean Victory) case that, in bareboat charters under the ‘BARECON 89’ form, if both the owner and the charterer are jointly insured under a hull policy, the damages caused to the vessel by the charterer cannot be claimed by the insurer by way of subrogation after indemnifying the owner. The interpretation of the charter party leads to the conclusion that the liability between the parties is excluded. Faced with the Supreme Court’s decision, the Baltic and International Maritime Council (BIMCO) adopted a new standard bareboat charter agreement only a few months later, the ‘BARECON 2017’ form, which amends, among other clauses, the one related to insurance. The present paper analyses (i) the new wording of the clause mentioned above and (ii) its incidence on the relationship between the parties of both the charter agreement and the insurance contract and its consequences for possible third parties. Despite BIMCO’s attempt to change the solution adopted by the Supreme Court and his willingness to allow the insurer to claim in subrogation against the person who causes the loss, the consequences, as it will be seen, do not differ much in practice when the wrongdoer is the co-insured charterer. On the contrary, when the loss is caused by a time charter or a sub-charter, in principle, there will be no impediment for the insurer to sue him.

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