Talya Deibel, ‘The Civil Law and the Inner Self: Roman Iniuria and the Transformation of the Private Sphere’

21 December 2024 | Author: steve

ABSTRACT
This paper focuses on the transhistorical nature of the protection of personality interests in the civilian tradition. It takes Roman iniuria as a key concept to analyze the legal protection of the ‘inner selves’ of human beings. The legal framework of iniuria stands out as an illustration of how social and moral phenomena which belonged to the interior realm such as honor, dignity, emotions, and reputation carried legal value in Roman law. Starting from its origins in Roman antiquity, this paper views the inner self through the legal prism of personality protection and comments on how formative periods in history prepared the doctrinal basis for modern civil codes. In this context, Roman iniuria becomes an illustration of how private law transgresses the boundaries between the outer-the inner and the body-the mind. As such, this paper provides a broader vision based on comparative and historical methodologies to be able to analyze personality rights in the 21st century.

Talya Deibel, The Civil Law and the Inner Self: Roman Iniuria and the Transformation of the Private Sphere, 16 Journal of Civil Law Studies (2024).

Posted in Defamation and Privacy, European Private Law | Leave a Comment

Vanessa Mak, ‘Redefining equality in European contract law: protecting consumer interests in a post-consumer society’

21 December 2024 | Author: steve

ABSTRACT
Consumers have in law been defined as the weaker parties in a transaction. Contract laws have integrated consumer protection with a view to balancing the interests of the parties, ensuring equal bargaining power and to some extent substantive fairness in contractual relations. Rules of consumer protection have therefore, from a contract lawyer’s perspective, been construed as expressions of a general principle of equality. The principle of equality, conceived in this way, complements the general principle of autonomy underlying contract law, which embodies the idea that parties should have the capacity for self-realisation. Does this construction of consumer contract law still hold in EU consumer markets transformed by the rise of online platforms and the overall move towards an economy based on services and experiences rather than the sale of physical goods? Or do we need to redefine the ways in which the principle of equality is expressed in European contract law in order to correct for new inequalities arising between consumers and businesses? This article aims to answer that question against the backdrop of established insights of the ways in which the rationality of European contract law differs from that of national, doctrinal private law systems. It concludes that the rules laid down in instruments such as the Unfair Commercial Practices Directive (UCPD) and the Unfair Contract Terms Directive (UCTD) can protect consumers against exploitative practices. However, problems arise in cases where the interest at stake go beyond economic interests and concern also non-economic interests, such as data protection or freedom of expression, or do not have a market exchange value. Solutions can be pursued, it is submitted, by the European legislator and the European Court of Justice, potentially using the EU Charter of Fundamental Rights as a catalyst for reform.

Vanessa Mak, Redefining equality in European contract law: protecting consumer interests in a post-consumer society, European Law Open. Published online by Cambridge University Press: 16 December 2024.

Posted in Consumer Law, Contract, European Private Law | Leave a Comment

Marlon Austin, ‘Haters gonna (sue the) Tate: court-based class warfare and private nuisance post-Fearn’

21 December 2024 | Author: steve

ABSTRACT
At first glance, the majority judgment in Fearn takes a sledgehammer to the law of nuisance and reconstructs it from new principles. However, its impact should not be overstated – its rather heterodox approach should be seen as indelibly linked to the specific and remarkable facts rather than a broader sea change in the law of nuisance. This article will approach the judgment in two parts. The first will outline the three key ways in which the Fearn judgment purports to change the law: (i) its elevation of ‘common and ordinary use’ into what seems to be a catch-all test for liability in the law of nuisance, (ii) its recognition that ‘overlooking’ can be an actionable interference, and (iii) its dismissal of any potential self-help measures at the liability stage. The second part will argue that each of these changes can be viewed as confined to the specific facts of Fearn and should be rejected insofar as they purport to deviate from the wider law of nuisance. Elevating ‘common and ordinary use’ to the sole test for liability simply does not work within the wider context of nuisance, a ‘liberty to build’ fails to explain the result in Bradford Corporation v Pickles,and the decision’s view of self-help is unjustifiably narrow.

Austin, Marlon, Haters gonna (sue the) Tate: court-based class warfare and private nuisance post-Fearn (September 13, 2024), Oxford University Undergraduate Law Journal Blog.

Posted in Land use and Environment, Tort | Leave a Comment

Hui Jing, ‘The Concept of Beneficial Ownership in Express Trust: A Necessity?’

21 December 2024 | Author: steve

ABSTRACT
The symmetry between legal and equitable estate is often considered a defining characteristic of an express trust. Consequently, the concept of beneficial ownership plays a crucial role in understanding how an express trust is established and operated. However, concentrating solely on beneficial ownership leads to the categorisation of charitable and non-charitable purpose trusts as exceptions within the express trust framework. This also creates challenges in understanding the entitlement of discretionary trust beneficiaries to initiate legal proceedings regarding the mismanagement of trust property by trustees. This article argues that due administration, instead of beneficial ownership, is a shared concern applicable to all kinds of express trusts. By shifting the focus from beneficial ownership to due administration, it is possible to establish a doctrinal connection among all types of express trusts. Furthermore, the increasing adoption of express trusts in civil law jurisdictions demonstrates that trust law has surpassed the confines of the common law sphere, and the understanding of trusts is no longer limited to the context of common law. By emphasising due administration, it becomes feasible to encourage a conversation between civil and common law jurisdictions regarding their unique approaches to express trusts.

Jing, Hui, The Concept of Beneficial Ownership in Express Trust: A Necessity? (June 6, 2024), (2024) Journal of Equity (Forthcoming).

Posted in Equity and Trusts | Leave a Comment

‘Equity, Conscience and Commercial Morality’ (UNSW Law Journal thematic issue)

21 December 2024 | Author: steve

Corporate Alter Ego Liability in Equity (Jamie Glister and Calida Tang)

Remedies and the Baumgartner Joint Endeavour Principle: Aspects of the Minimum Equity Rule (Maxen Williams)

Terminating Fiduciary Obligations: Is There a Duty of Loyalty to Former Clients? (Jack Zhou)

Proportionate Liability for Breach of Trust under the Civil Liability Act: An Opiate on the Conscience of Trustees (Matthew Conaglen)

Pushing Equity’s Envelope: Probing the Arbitrary Distinction between Immoral and Unconscionable Commercial Behaviour (Mark Giancaspro)

Corporate Whistleblowers and Financial Incentives (Jordan Tutton and Vivienne Brand)

The Reality of Shareholder Ownership: For-profit Corporations as Slaves (Duncan I Wallace

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University of News South Wales Law Journal volume 47 no 4 (December 2024)

Posted in Business Organisation, Equity and Trusts | Leave a Comment

Diana Pogosyan, ‘Issues Arising Out of Mass Arbitrations and Solutions to Combat Them’

21 December 2024 | Author: steve

ABSTRACT
Arbitrations have been around for thousands of years. The benefits derived from arbitrations are numerous, as they provide individuals with a more efficient and cost-effective way of disputing their claims. Importantly, arbitrations provide consumers with a network to dispute claims they may not otherwise litigate in civil court. However, within the last few years, the rapid spread of mass arbitrations throughout the nation has contributed to various ethical issues within our justice system.143 Combatting the issues presented with mass arbitration is crucial to maintaining and creating a more efficient adjudication process. To address the issues associated with mass arbitrations, companies should consider splitting costs of initial filing fees equally, demand that arbitration providers handle issues associated with mass arbitrations more efficiently and resolve certain small claim disputes in a state’s small claims court.

The solutions to mass arbitration will hold attorneys to the proper ethical standard of care and will prevent abuse of the arbitration system. Since arbitrations are beneficial to both the individual and the corporation, these changes will help benefit both parties to ensure the practice of arbitrations will continue to be an efficient dispute resolution method.

Diana Pogosyan, Issues Arising Out of Mass Arbitrations and Solutions to Combat Them, 2-24 Utah Law Review 1173 (2024).

Posted in Remedies and Procedure | Leave a Comment

Uglješa Grušić, ‘The Law Governing United Kingdom Government Tort Liability in the “War On Terror”’

20 December 2024 | Author: steve

ABSTRACT
This article discusses the United Kingdom Supreme Court judgment in Zubaydah v Foreign, Commonwealth and Development Office, which addressed the law governing the tort liability of the United Kingdom Government for its alleged complicity in the claimant’s arbitrary detention and torture overseas by the Central Intelligence Agency. In holding that English law applied, the Court departed from previous case law by giving decisive weight to public law factors in its choice-of-law reasoning. This decision arguably heralds a greater role for English law in relation to tort claims brought by overseas victims of allegedly wrongful exercises of British executive authority as a mechanism for achieving executive accountability, controlling abuse of power, ensuring the rule of law and providing victims access to remedy.

Uglješa Grušić, The Law Governing United Kingdom Government Tort Liability in the ‘War On Terror’, International & Comparative Law Quarterly, volume 73, issue 4, pp 1045-1060 (October 2024). Published online by Cambridge University Press: 9 December 2024.

Posted in Conflict of Laws, Tort | Leave a Comment

‘Open Justice and the GDPR: GDPRubbish, the Courts Service, and the Defence Forces’

20 December 2024 | Author: steve

Last June, Tánaiste and Minister for Defence Micheál Martin announced the appointment of Peter Ward SC (pictured right) to examine the administration of cases involving Defence Forces personnel charged or convicted of criminal offences. The Report (pdf) was published this week. One of the headlines about it caught my eye … (more)

[Eoin O’Dell, Cearta, 19 December 2024]

Posted in Defamation and Privacy, European Private Law | Leave a Comment

Twigg-Flesner and Howells, ‘Adapting Consumer Law to New Technologies’

20 December 2024 | Author: steve

ABSTRACT
The task for this chapter is to examine how well consumer law is able to adapt to the use of new technologies in consumer-focused applications. Our central thesis is that a methodical approach is needed, comprising several steps and admitting different responses to different technological developments. The context for our discussion will be applications of digital technologies, especially artificial intelligence (AI), in the form of general software applications (‘digital content’) such as computer programmes or ‘apps’ installed on smart phones and tablets, such as ‘digital assistants’, ie, applications which can automate particular tasks for a consumer, especially the automatic conclusion of contracts.

Twigg-Flesner, Christian and Howells, Geraint, Adapting Consumer Law to New Technologies (September 30, 2024). To be published in Roger Brownsword and Larry Di Matteo (eds), The Cambridge Handbook of the Governance of Technology: Discontent, Disconnect and Disruption (due 2025) (forthcoming).

Posted in Consumer Law, Contract | Leave a Comment

Christian Twigg-Flesner, ‘Contract Automation – Is Functional Equivalence Enough?’

20 December 2024 | Author: steve

ABSTRACT
Many provisions of Transnational Commercial Law dealing with the digital commerce seek to extend the application of existing measures to the digital realm by deploying the functional equivalence principle. This principle is used to identify how legal rules developed in the context of physical transacting can be applied in the digital context, and thus favours continuity over the development of tailored rules. It is argued that the reliance on functional equivalence reflects a particular mindset about how law should respond to technological development, and that the every-increasing growth of digital commerce and digital automation of contracting might put the principle under too much strain.

Twigg-Flesner, Christian, Contract Automation – Is Functional Equivalence Enough? (February 28, 2024). To be published in: Bruno Zeller and Camilla Baasch Andersen (eds), Routledge Handbook on Transnational Commercial Law (Routledge, due 2025) (forthcoming).

Posted in Contract | Leave a Comment