‘Case Law, Strasbourg: Magyar Jeti Zrt v Hungary: ECtHR rules on hyperlinking to defamatory content’

“On 4 December 2018, the European Court of Human Rights provided some helpful clarification on the potential liability for posting hyperlinks to defamatory content in the case of Magyar Jeti Zrt v Hungary. In doing so, the Court referred to the ever-growing corpus of European Union law concerning the concept of ‘communication to the public’ contained in Article 3(1) of the InfoSoc Directive 2001/29/EC …” (more)

[Oliver Fairhurst, Inforrm’s Blog, 14 December]

Conway and Grattan, ‘The “New” New Property: Dealing with Digital Assets on Death’

What happens to digital assets when someone dies? This basic question raises a host of legal issues around ownership, privacy, access to usernames and passwords, and the duties of personal representatives when administering estates, which do not fit neatly within traditional succession law and property law concepts. The location of digital assets also leads to complex multi-jurisdictional legal issues, yet there is currently no ‘joined-up’ international law on the subject. This paper looks briefly at digital assets and how they are defined, before examining the challenges posed from an estate planning perspective.

Conway, Heather and Grattan, Sheena, The ‘New’ New Property: Dealing with Digital Assets on Death (2017) in Conway and Hickey (eds), Modern Studies in Property Law, Volume 9 (Hart Publishing, July, 2017) pp 99-115.

‘The Law Applicable to Contractual Obligations and Non-contractual Obligations (Amendment etc) (EU Exit) Regulations 2018’

“The UK Government has published a draft statutory instrument under the European Union (Withdrawal) Act 2018, which will incorporate the Rome I and Rome II Regulations into domestic law. The Rome I and Rome II Regulations provide rules to determine the law applicable to contractual and non-contractual obligations respectively. Crucially, they do not rely on reciprocity, and therefore it can be expected that they will become part of domestic law even in the event of no deal …” (more)

[Andrew Sheftel, Norton Rose Fulbright: Inside Brexit, 13 December]

Stavros Brekoulakis, ‘The Historical Treatment of Arbitration under English Law and the Development of the Policy Favouring Arbitration’

The article examines the judicial attitude and the development of the policy of English law favouring arbitration. It suggests that, contrary to the prevailing narrative in legal literature, English judicial attitudes in the 18th and 19th centuries never reflected a hostility to arbitration. As is demonstrated, a policy favouring arbitration was introduced by the legislature as early as the end of the 17th century, and was subsequently developed by English courts deciding under statutory law and in the 19th century under the common law. The analysis offers, for the first time, an account of English arbitration as a dispute resolution system which originally emerged as being part of, rather than antagonistic to, the English courts system. Understanding how arbitration developed in England is important not only for historical purposes, but also because it can provide helpful insights into current debates surrounding the legitimacy and potential reform of English arbitration law.

Stavros Brekoulakis, The Historical Treatment of Arbitration under English Law and the Development of the Policy Favouring Arbitration, Oxford Journal of Legal Studies, https://doi.org/10.1093/ojls/gqy035. Published: 4 December 2018.

‘The 50th Anniversary of the European Law of Civil Procedure’

“On 27-28 September 2018, the Court of Justice of the European Union and the Max Planck Institute Luxembourg organised an international conference at the premises of the CJEU to commemorate the 50th anniversary of the signing of the Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters. It brought together renowned experts in the field of private international law and cross-border litigation to discuss major developments in, achievements of, and challenges for judicial cooperation in civil and commercial matters within the framework of the European Judicial Area …” (more)

Dagan and Heller, ‘Why Autonomy Must Be Contract’s Ultimate Value’

In ‘The Choice Theory of Contracts’, we develop a liberal theory of contract law. One core task of the book was to persuade advocates of economic analysis that they must situate their enterprise within our liberal framework. Autonomy, rightly understood, is the telos of contract. Oren Bar-Gill pushes back strongly in ‘Choice Theory and the Economic Analysis of Contracts’. He offers a penetrating – perhaps devastating – critique of our approach. Bar-Gill notes the substantial convergence between choice theory and a welfarist view. If he is right, then what does choice theory add? …

Dagan, Hanoch and Heller, Michael, Why Autonomy Must Be Contract’s Ultimate Value (December 12, 2018). Jerusalem Review of Legal Studies (forthcoming 2019).

‘EU Copyright Reform, Fundamental Rights and Life as CJEU Judge at the ERA Copyright Conference’

“This Kat had the pleasure of attending the ERA annual Conference on EU Copyright Law in Trier on the 22nd and 23rd November. The event involved two days of discussions focused on EU copyright reform as well as the interplay between copyright and fundamental rights from prolific speakers. If you couldn’t make it, here are some of the highlights from the event …” (more)

[Hayleigh Bosher, The IPKat, 13 December]

Patrick Parkinson, ‘Tricked into Marriage’

Many people, in recent years, have sought a decree of nullity on the basis that they have been tricked into marriage by fraudulent misrepresentations. These applications have routinely failed because the Family Court, applying ancient principles of canon law, has held that fraud is only relevant if it goes to the nature of the ceremony or the identity of the person, and not the motivation for entering the marriage. This article argues that many of these cases are wrongly decided. They have been treated as if they are all governed by the same principles, when important distinctions need to be made between different categories of case. The courts have failed to apply standard principles of statutory interpretation to the Marriage Act 1961 (Cth). Furthermore, the view that fraudulent misrepresentations can never provide the basis for a decree of nullity needs to be reconsidered as a consequence of the enactment of the Crimes Legislation Amendment (Slavery, Slavery-Like Conditions and People Trafficking) Act 2013 (Cth). Parliament has now made it a criminal offence to force someone into marriage, and the definition of forced marriage includes deception. If such deception is treated as negating consent, it would be anomalous to hold that the marriage remains valid.

Parkinson, Patrick, Tricked into Marriage (March 1, 2018). Melbourne University Law Review, volume 42, no 1, 2018.

Financial Law Amity Symposium: Singapore, 11-12 February 2019

The Centre for Banking & Finance Law (CBFL) at the National University of Singapore will be holding a banking and finance symposium on 11–12 February 2019. Speakers have been drawn from a wide range of jurisdictions, currently including China, Hong Kong, Israel, Korea, Malaysia, Norway, Singapore, South Africa and the UK. They will present recent/current research around the theme of banking and finance. The event will offer an opportunity for a stimulating academic exchange and will facilitate the forging of new links with a diverse range of scholars in the field of banking and finance law. Anyone interested in attending or seeing the programme should contact Dr Sandra Booysen (lawsab@nus.edu.sg) or Dr Christian Hofmann (lawch@nus.edu.sg) for further information.

Post-Doctorate Fellowships: ‘Markets, Ethics, and the Law’: Tel Aviv University

The Edmond J Safra Center for Ethics at Tel Aviv University is accepting applications for its 2019-20 post-doctorate fellowship program. The Center offers grants to outstanding researchers who study the ethical, moral, and political aspects of markets, local or global, real or virtual. The Center encourages applications from all disciplines and fields, including economics, social sciences, business, the humanities, and the law … (more)