To punish or not punish: a comparative analysis of the legislative treatment of exemplary damages in Commonwealth jurisdictions

<p>Exemplary damages are an exceptional and controversial civil remedy.1 Though private litigation generally falls under the radar, exemplary damages often draw public interest due to the highly charged nature of the cases that concern this award.2 This paper outlines the different legislative approaches that the Commonwealth jurisdictions of New Zealand, Australia, Canada and the United Kingdom take to exemplary damages in the areas of personal injury, property, intellectual property, trade and commerce, media, employment and miscellaneous areas. This paper does not address the availability of exemplary damages in procedural legislation. The research process involved finding legislative references to exemplary damages in these jurisdictions and categorising these references. Relevant parliamentary materials and commentary have also been included. This paper concludes that exemplary damages should be awarded in New Zealand and that New Zealand’s current generous approach towards awarding exemplary damages in legislation is appropriate.</p>

To punish or not punish: a comparative analysis of the legislative treatment of exemplary damages in Commonwealth jurisdictions

<p>Exemplary damages are an exceptional and controversial civil remedy.1 Though private litigation generally falls under the radar, exemplary damages often draw public interest due to the highly charged nature of the cases that concern this award.2 This paper outlines the different legislative approaches that the Commonwealth jurisdictions of New Zealand, Australia, Canada and the United Kingdom take to exemplary damages in the areas of personal injury, property, intellectual property, trade and commerce, media, employment and miscellaneous areas. This paper does not address the availability of exemplary damages in procedural legislation. The research process involved finding legislative references to exemplary damages in these jurisdictions and categorising these references. Relevant parliamentary materials and commentary have also been included. This paper concludes that exemplary damages should be awarded in New Zealand and that New Zealand’s current generous approach towards awarding exemplary damages in legislation is appropriate.</p>

Mergers

Recent research indicates that labor market power has contributed to wage inequality and economic stagnation. Although the antitrust laws prohibit firms from restricting competition in labor markets as in product markets, the government does little to address the labor market problem, and private litigation has been rare and mostly unsuccessful. This is a particular problem for mergers, which the government has never reviewed for labor market effects. One reason is that the analytic methods for evaluating labor market power in antitrust contexts are less sophisticated than the legal rules used to judge product market power. To remedy this asymmetry, the government can draw on insights from labor economics and use tools that have been developed for measuring labor market concentration.

A Conflicts of Law Approach to Intellectual Property Research

Intellectual property (IP) conflict of laws issues in disputes between private parties arise for a variety of reasons. Most infringe the plaintiff’s intellectual property rights in countries X, Y, and Z. Part of the infringing conduct might have been in one jurisdiction, while the effects are felt elsewhere. Infringing material can be instantly distributed to any country in which there is internet access. Digital networks are also increasing opportunities for international collaboration by parties that are physically located in different places, and supply chains also increasingly straddle national borders, giving rise to disputes about the law governing intellectual property ownership. And internet commerce is increasing the global reach of brands. Research in this area must engage with the problem of providing efficient and just solutions in the context of private litigation that are also aligned with the foundations of the international intellectual property architecture including, in many contexts, the domestic economic and social policies that shape territorially confined IP rights.

6 Civil Damages

This chapter deals with private litigation. It begins with some discussion of the general issues surrounding private enforcement and an overview of the United States, where the level of private enforcement in cartel cases has historically far exceeded that of public cases. The chapter then provides a summary of the state of private enforcement in each of the EU's current twenty-eight Member States, before the EU Damages Directive was adopted. In this respect, it attempts to give a summary of national initiatives in the absence of an EU framework but excludes reforms made in response to, or in direct anticipation of, the EU Damages Directive. This background is important to understand the issues that shaped the Directive. Finally, the chapter discusses the thorny issue of damage estimation.

Legal Obstacles to Private Enforcement of Competition Law

Private enforcement of competition law serves many important goals, including deterrence of future anti-competitive harms and correction of past harms. This article sheds light on several potential legal obstacles to such enforcement which could prevent it from achieving its goals. The examples mainly build upon the experience of different jurisdictions with private litigation. It also suggests some possible solutions for dealing with or limiting such obstacles. As Europe is in the early stages of applying its Damages Directive and creating a private competition law enforcement regime, recognising – and possibly avoiding – obstacles to efficient private enforcement is both timely and important.

The Jurisdictional Immunities of International Organizations

This chapter focuses on developments in the law of international organization (IO) immunity, focusing on the United States. As international entities, IOs are generally entitled to some measure of immunity from the jurisdiction of domestic courts. Immunity allows IOs to fulfill their missions without interference from the domestic courts of the countries in which they locate and operate. As IOs grew, the domestic and international legal regulation of their activities also expanded. A variety of social harms were increasingly addressed by positive law and resolved through private litigation, both in the United States and around the world. As a consequence of these developments, immunity for IOs today may shield them from more conduct that would otherwise be actionable in court than it did when most treaties and statutes conferring IO immunity were adopted. In addition, the immunity of foreign states has generally become subject to more exceptions during this period, another factor that makes absolute immunity for IOs appear anomalous to some observers, despite the differences between IOs and foreign states. Although IOs generally remain entitled to a high level of immunity in the United States as they do around the world, cases in the United States and elsewhere have begun to indicate ways in which that immunity will be limited going forward. The chapter then suggests that the Fourth Restatement of Foreign Relations Law take up the topic of IO immunity.

Equity and the Right to Do Wrong

This chapter discusses how the ‘stickler-enjoining’ account of equity has important limits. While many distinctive doctrines of equity can be understood to limit stickler behaviour, equity in fact often turns a blind eye to, and sometimes even enables, stickler behaviour. One can sort cases in which equity restrains sticklers from those in which it is indifferent to stickler behaviour if one attends to the role of the state in private litigation. Sometimes the state’s responsibilities require it to protect plaintiffs against sticklers. Other times, it requires it to protect the stickler, as a means, for example, of keeping as open as possible each person’s sphere of choices. Ultimately, the self-regarding account of equity sheds light on the question of the relationship between equity and justice: from the distinct perspective of the judgment, sometimes equitable justice is better than legal justice and sometimes legal justice is better than equitable justice.