scholarly journals The ‘one man company’ after Patel v Mirza: attribution and illegality in Singularis Holdings v Daiwa Capital Markets

2020 ◽  
Vol 71 (3) ◽  
pp. OA35-OA48
Author(s):  
James C Fisher
Keyword(s):  
Supreme Court ◽  
Capital Markets ◽  
High Water ◽  
Legal Principles ◽  
Context Sensitive ◽  
House Of Lords ◽  
The Supreme Court ◽  
The One ◽  
The Uk ◽  
The Relationship

This note discusses the UK Supreme Court’s decision in Singularis Holdings v Daiwa Capital Markets in the context of other recent decisions on corporate attribution and the illegality principle in English law. It particularly considers Daiwa’s implications for the relationship between the illegality doctrine and other legal principles in the wake of Patel v Mirza. The court employed a context-sensitive, teleological approach to attribution, one consequence of which was the conclusive consignment of the House of Lords’ decision in Stone & Rolls Ltd v Moore Stephens to irrelevance. It nonetheless privileges orthodox, pre-Patelian authority in the disposal of the case. The court’s approach suggests that Patel is perceived as the high-water mark for expansive, policy-sensitive understanding of the illegality principle, and that its disruptive potential is likely to be carefully constrained in future decisions of the Supreme Court.

scholarly journals The ‘one man company’ after Patel v Mirza: attribution and illegality in Singularis Holdings v Daiwa Capital Markets

2020 ◽  
Vol 71 (3) ◽  
pp. 387-400
Author(s):  
James Fisher
Keyword(s):  
Supreme Court ◽  
Capital Markets ◽  
High Water ◽  
Legal Principles ◽  
Context Sensitive ◽  
House Of Lords ◽  
The Supreme Court ◽  
The One ◽  
The Uk ◽  
The Relationship

This note discusses the UK Supreme Court’s decision in Singularis Holdings v Daiwa Capital Markets in the context of other recent decisions on corporate attribution and the illegality principle in English law. It particularly considers Daiwa’s implications for the relationship between the illegality doctrine and other legal principles in the wake of Patel v Mirza. The court employed a context-sensitive, teleological approach to attribution, one consequence of which was the conclusive consignment of the House of Lords’ decision in Stone & Rolls Ltd v Moore Stephens to irrelevance. It nonetheless privileges orthodox, pre-Patelian authority in the disposal of the case. The court’s approach suggests that Patel is perceived as the high-water mark for expansive, policy-sensitive understanding of the illegality principle, and that its disruptive potential is likely to be carefully constrained in future decisions of the Supreme Court.

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.

The constitutional influence of the Judicial Committee of the Privy Council on the UK apex court: institutional proximity and jurisprudential divergence?

2020 ◽  
Vol 71 (2) ◽  
pp. 285-302
Author(s):  
Roger Masterman
Keyword(s):  
Supreme Court ◽  
Ad Hoc ◽  
Court Decisions ◽  
Privy Council ◽  
House Of Lords ◽  
Uk Supreme Court ◽  
Proportionality Test ◽  
The Uk ◽  
The Relationship

It is often claimed that the constitutional role of the UK’s apex court is enriched as a result of the experiences of the Judicial Committee of the Privy Council as interpreter of constitutions within its overseas jurisdiction. This paper considers the relationship between the House of Lords/UK Supreme Court and the Judicial Committee and its effect on the importation of external influences into the UK’s legal system(s), further seeking to assess how far the jurisprudence of the Judicial Committee has influenced constitutional decision-making in the UK apex court. While ad hoc citation of Privy Council authorities in House of Lords/Supreme Court decisions is relatively commonplace, a post-1998 enthusiasm for reliance on Judicial Committee authority – relating to (i) a ‘generous and purposive’ approach to constitutional interpretation and (ii) supporting the developing domestic test for proportionality – quickly faded. Both areas are illustrative of a diminishing reliance on Judicial Committee authority, but reveal divergent approaches to constitutional borrowing as the UK apex court has incrementally mapped the contours of an autochthonous constitutionalism while simultaneously recognising the trans-jurisdictional qualities of the proportionality test.

Cross-fertilisation of Constitutional Ideas

2013 ◽  
Author(s):  
Petra Butler
Keyword(s):  
New Zealand ◽  
Supreme Court ◽  
Case Law ◽  
Bill Of Rights ◽  
House Of Lords ◽  
The Supreme Court ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Uk Supreme Court ◽  
The Uk

This chapter discusses the New Zealand courts' jurisprudence in regard to the interpretative provisions — sections 4, 5, and 6 — of the New Zealand Bill of Rights Act 1990. It not only gives an overview of the relevant New Zealand case law but also compares the courts' approaches to those of their UK counterparts, in particular the UK Supreme Court (formerly, the House of Lords) in regard to section 3 of the UK Human Rights Act 1998. It is argued that the perceived difference in the approaches can be explained by different contexts rather than different methodology. The chapter thereby questions the view held in New Zealand that the UK courts, and especially the Supreme Court, are more activist than the New Zealand courts.

scholarly journals 12. The Relationship between Parliament, the Executive and the Judiciary

2019 ◽  
pp. 325-357
Author(s):  
Alison L. Young
Keyword(s):  
Supreme Court ◽  
Separation Of Powers ◽  
Case Law ◽  
Checks And Balances ◽  
Parliamentary Sovereignty ◽  
The Supreme Court ◽  
The Uk ◽  
The Relationship ◽  
Traditional Understanding

When examining the recent evolution of the Constitution, it is argued that the UK has become more ‘legal’ as opposed to ‘political’. The last twenty years has seen a growth in legislation and case law, particularly that of the Supreme Court, regulating aspects of the UK constitution. This chapter investigates this claim. It argues that, whilst we can point to a growth in both legislation and case law, when we look at the case law more closely we can see that the courts balance an array of factors when determining how far to control executive actions. These factors include an analysis of the relative institutional features and constitutional role of the legislature, the executive and the courts. This evidence, in turn, questions the traditional understanding of the separation of powers as a hidden component of the UK constitution. It is not the case that courts merely balance the rule of law and parliamentary sovereignty in order to determine how far to control executive actions. Rather, the courts determine how to make this balance through the lens of the separation of powers, evaluating institutional and constitutional features. In doing so, they are upholding necessary checks and balances in the UK constitution.

scholarly journals Struggling Towards Coherence in Canadian Administrative Law? Recent Cases on Standard of Review and Reasonableness

2017 ◽  
Vol 62 (2) ◽  
pp. 527-564 ◽  
Author(s):  
Paul Daly
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
Analytical Framework ◽  
Administrative Law ◽  
The Rule Of Law ◽  
Context Sensitive ◽  
Administrative Action ◽  
The Supreme Court ◽  
The Law ◽  
The Relationship

Although the Supreme Court of Canada’s seminal decision in Dunsmuir v. New Brunswick has now been cited more than 10,000 times by Canadian courts and administrative tribunals, many of its key features remain obscure. In this article, the author analyzes recent cases decided under the Dunsmuir framework with a view to determining where Canadian courts might usefully go next. The author’s argument is that the two important principles said to underlie the Dunsmuir framework—the rule of law and democracy—can provide guidance to courts in simplifying and clarifying judicial review of administrative action. In Part I, the author explains how the relationship between Dunsmuir’s categorical approach and the contextual approach that it replaced is uncertain and causes significant confusion, and explores the potential utility of the two underlying principles in simplifying the law. The application of the reasonableness standard of review is the focus of Part II, in which the author criticizes the general approach to reasonableness review in Canada, but suggests that the rule of law and democracy may assist in clarifying the law, by setting the boundaries of the “range” of reasonable outcomes and structuring the analytical framework for identifying unreasonable administrative decisions. Finally, the author draws the strands of Parts I and II together by arguing for the adoption of a unified, context-sensitive reasonableness standard, underpinned by the rule of law and democracy, with the aim of providing clarity and simplicity to Canadian administrative law in a manner faithful to the Supreme Court of Canada’s decision in Dunsmuir.

Researching (with) Major Food Retailers

2015 ◽  
Vol 15 (3) ◽  
pp. 33-39 ◽  
Author(s):  
David Evans
Keyword(s):  
Food Systems ◽  
Academic Research ◽  
Social Scientists ◽  
Major Food ◽  
Food Retailers ◽  
Food Retailer ◽  
The One ◽  
The Uk ◽  
The Relationship ◽  
Opening Up

This paper considers the relationship between social science and the food industry, and it suggests that collaboration can be intellectually productive and morally rewarding. It explores the middle ground that exists between paid consultancy models of collaboration on the one hand and a principled stance of nonengagement on the other. Drawing on recent experiences of researching with a major food retailer in the UK, I discuss the ways in which collaborating with retailers can open up opportunities for accessing data that might not otherwise be available to social scientists. Additionally, I put forward the argument that researchers with an interest in the sustainability—ecological or otherwise—of food systems, especially those of a critical persuasion, ought to be empirically engaging with food businesses. I suggest that this is important in terms of generating better understandings of the objectionable arrangements that they seek to critique, and in terms of opening up conduits through which to affect positive changes. Cutting across these points is the claim that while resistance to commercial engagement might be misguided, it is nevertheless important to acknowledge the power-geometries of collaboration and to find ways of leveling and/or leveraging them. To conclude, I suggest that universities have an important institutional role to play in defining the terms of engagement as well as maintaining the boundaries between scholarship and consultancy—a line that can otherwise become quite fuzzy when the worlds of commerce and academic research collide.

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 Some psychological impacts on judging in criminal cases within the Supreme Court of Cassation of the Republic of Serbia

2020 ◽  
Vol 25 (2) ◽  
pp. 13-28
Author(s):  
Dragutin Avramović
Keyword(s):  
Public Opinion ◽  
Supreme Court ◽  
Criminal Cases ◽  
Judicial Decisions ◽  
The Supreme Court ◽  
Psychological Impacts ◽  
The Republic ◽  
The Relationship ◽  
Media Pressure

Following hypothesis of Andrew Watson, American professor of Psychiatry and Law, the author analyses certain psychological impacts on behavior of judges and examines the relationship between their idiosyncrasies and their judicial decisions. The survey encompasses the judges of Criminal Department of the Supreme Court of Cassation of the Republic of Serbia and, also, for comparative reasons, the judges of Criminal Department of the First Basic Court in Belgrade. Considering the main issues there is no great discrepancy between answers given by the judges of the Supreme Court and those of the Basic Court. Most responses of the Serbian judges deviate from Watson's conclusions, namely: they do not admit that they feel frustrated due to heavy caseloads, the significant majority of judges are reluctant to acknowledge their prejudices and influence of biases on their ruling, the significant majority of judges are not burdened with the idea of possible misuse of their discretion, they nearly unanimously deny that public opinion and media pressure affect their rulings, etc. Generally, the judges in Serbia are not willing to admit that they cannot always overcome their own subjectivities.

scholarly journals Corporate personality: utilising trust law to invoke the application of the concealment principle

Legal Studies ◽  
2018 ◽  
Vol 38 (1) ◽  
pp. 79-102 ◽  
Author(s):  
Gregory Allan ◽  
Stephen Griffin
Keyword(s):  
Supreme Court ◽  
Distinct Species ◽  
Legal Principles ◽  
The Supreme Court ◽  
The Law ◽  
Trust Law ◽  
Constituent Elements ◽  
Corporate Personality

AbstractThe landmark Supreme Court judgment in Prest v Petrodel Resources Ltd provides a significant reassessment of the law relating to a court's ability to circumvent corporate personality. The Supreme Court considered that the application of ordinary legal principles (‘the concealment principle’) should ordinarily override a court's ability to apply an equitable veil-piercing doctrine (‘the evasion principle’). Whilst accepting the primacy of the concealment principle, this paper disputes the correctness of the Supreme Court's implied assertion that, in cases concerning ‘one-man type’ companies, the concealment principle should be advanced through application of agency-derived principles. Rather, this paper contends that the concealment principle should be progressed by adopting solutions derived from the law of constructive trusts and associated principles of equity. To an objective of providing a doctrinally sound framework for the development of the law in the post-Prest era, this paper further suggests that the constituent elements of the evasion principle could be consistent with the operation of a distinct species of constructive trust. Moreover, it is argued that, in future, this ‘evasion trust’ should, in complete abrogation of the equitable piercing doctrine, be developed so as to apply in all cases exhibiting intentional and fraudulent abuses of the incorporation process.

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