Abdul Karim Aldohni, ‘Regulating high-cost short-term credit in the UK: is there scope for “libertarian paternalism” based provisions?’

ABSTRACT
The regulatory protection of credit consumers, in general, is paramount due to the considerable use of credit, the imbalanced bargaining positions of the contracting parties and the adverse effect of over-indebtedness on individuals and society alike. These concerning factors are worsened in the case of High-Cost Short-Term Credit (HCSTC) consumers owing to their disadvantaged financial position and other recognised vulnerabilities. In this respect, the paper argues that direct regulatory intervention, despite its importance, is not always a silver bullet. Through the analysis of the overhauling of the UK HCSTC regulatory framework, this paper demonstrates the shortfalls of these regulatory changes. Accordingly, the paper shifts the argument towards improving the decision-making mechanisms of HCSTC consumers, ie the role of ‘libertarian paternalism’-based interventions. By using a bespoke experimental survey, the paper demonstrates the type of behavioural interventions that can assist in this endeavour and which the regulator could possibly mandate.

Abdul Karim Aldohni, Regulating high-cost short-term credit in the UK: is there scope for ‘libertarian paternalism’ based provisions?, Legal Studies, https://doi.org/10.1017/lst.2021.35. Published online by Cambridge University Press: 22 September 2021.

Christian D’Cunha, ‘“A State in the disguise of a Merchant”: Tech Leviathans and the rule of law’

ABSTRACT
The rule of law is a check on power, requiring equal subjection of everyone to the law, irrespective of wealth or status. Power is not the exclusive preserve of the state, however, especially where rivalled by private entities that rise, in effect, above the law. Today’s tech giants throw the rule of law out of kilter by assuming the trappings of the state – one even has its own ‘supreme court’ – while shunning its accountability. They seek to dissuade, capture and evade any attempt by the state to mitigate the harms arising from their business models. Policy makers scrambling for innovative legislative techniques are unlikely to repair the consequences of extreme concentration of corporate power so long as underlying social injustices and over-deference in democratic institutions go unchallenged. Leviathan, whether in the form of govern mentor corporation, cannot coexist with the rule of law.

Christian D’Cunha, ‘A State in the disguise of a Merchant’: Tech Leviathans and the rule of law, European Law Journal, https://doi.org/10.1111/eulj.12399. First published: 23 September 2021.

Atkinson and Dhorajiwala, ‘The Future of Employment: Purposive Interpretation and the Role of Contract after Uber

ABSTRACT
A person’s entitlement to workplace rights and protections under English law is conditional on their relationship falling within the legal category of employment, by virtue of them having the requisite status. The employment status of individuals performing on-demand work via digital platforms is particularly contentious and has been a focal point for debate in recent years. The Supreme Court decision in Uber BV v Aslam represents a ground-breaking judgment on this issue, which has radical implications for the correct approach to determining employment status more generally. It is argued here that, while leaving some important questions unanswered, the purposive and relational approach to employment status developed by the Supreme Court in Uber BV v Aslam is to be welcomed, and that this new approach has far-reaching consequences for the future of the legal category of employment.

Joe Atkinson and Hitesh Dhorajiwala, The Future of Employment: Purposive Interpretation and the Role of Contract after Uber, Modern Law Review, https://doi.org/10.1111/1468-2230.12693. First published: 21 September 2021.

Garth Bouwers, ‘Tacit choice of law in international commercial contracts: an analysis of Asian jurisdictions and the Asian Principles of Private International Law’

ABSTRACT
This article analyses the determination of a tacit choice of law in international commercial contracts in China (including Hong Kong), Japan, Singapore, and South Korea (the Republic of Korea). The article also examines the proposed Asian Principles of Private International Law (APPIL). The APPIL is intended as a model for Asian jurisdictions to interpret or supplement their private international law rules. Legislators in these jurisdictions may also use it to enact their own statutes on private international law. In the globalized era, the need for certainty regarding the rules and principles of choice of law is of the utmost importance in international commercial contracts. The APPIL may prove particularly useful in bringing more clarity to the issues related to the determination of a tacit choice of law in the region.

Garth J Bouwers, Tacit choice of law in international commercial contracts: an analysis of Asian jurisdictions and the Asian Principles of Private International Law, Uniform Law Review, volume 26, issue 1, March 2021, pages 14-42, https://doi.org/10.1093/ulr/unab002.

Lachlan Forrester, ‘Resulting trusts in the conflict of laws: an Australian perspective’

ABSTRACT
The common law world continues to grapple with how to properly characterise equitable doctrines in private international law. There has been extensive criticism of the existing approach to characterisation and choice of law for equity which favours separately characterising equitable obligations and applying the lex fori. Within this broader discourse, a debate is beginning to emerge around issues involving both equitable obligations and immovable property. In this early debate, two schools of thought have developed with respect to the proper characterisation and choice of law for implied or resulting trusts over immovable property. The first approach, advanced primarily by the courts, characterises the trust as an equitable obligation governed by the lex fori. The second approach, primarily endorsed by commentators, characterises the trust as an issue of immovable property governed by the lex situs. This paper, upon evaluating the lex fori and the lex situs against the underlying objectives of choice of law, rejects both approaches as unfit for purpose. Instead, it advocates a new approach to the characterisation and choice of law for resulting trusts. This paper proposes that resulting trusts be governed by the proper law of the relationship. This conception would align with the approach taken to express trusts under the Hague Trusts Convention and most effectively provides for consistency and clarity while upholding the reasonable expectations of the parties.

Lachlan Forrester, Resulting trusts in the conflict of laws: an Australian perspective, Journal of Private International Law volume 17, 2021 – issue 2, https://doi.org/10.1080/17441048.2021.1956160. Published online: 22 September 2021.

Lance Ang, ‘Party autonomy, venue risk and jurisdiction agreements – the Singapore position reappraised’

ABSTRACT
Party autonomy is the defining principle of private international law today. Notwithstanding its broad acceptance, what does party autonomy mean in the context of jurisdiction agreements? The lack of commercial certainty in how the agreement to ‘submit’ to the jurisdiction of the courts in the chosen forum will be interpreted and enforced by the courts defeats the very purpose of party autonomy itself, which is the management of venue risk by commercial parties in entering into cross-border transactions. In light of recent developments, the Singapore court has blurred the distinction between exclusive and non-exclusive jurisdiction agreements by holding that the same requirement of ‘strong cause’ applies if a party reneges on its agreement to ‘submit’. This is premised on the same strict contractual analysis and enforcement of both types of agreements. It is against this background that the approach of the Singapore courts in determining the exercise of their own jurisdiction under the common law will be reappraised, along with a comparison with the practice of the English courts.

Lance Ang, Party autonomy, venue risk and jurisdiction agreements – the Singapore position reappraised, Journal of Private International Law volume 17, 2021 – issue 2, https://doi.org/10.1080/17441048.2021.1953256. Published online: 22 September 2021.

Bilika Simamba, ‘The Plain Meaning Rule: A Quibble about Nomenclature and a Lot More’

ABSTRACT
In the Cayman Islands, a British Overseas Territory, the proper understanding of the plain meaning rule (or literal rule) of statutory interpretation remains unclear. In its most basic iteration, the rule states that, where a statute is clear and unambiguous, the words must be given their natural and ordinary signification; there is no room for interpretation. That notwithstanding, to this day, even the meaning of the rule, as opposed to its application, still sometimes sparks debate in the Commonwealth. In 2015, a judge of the Grand Court in Cayman held that once a provision in a statute is clear and unambiguous, a court does not need to read the provision in its broader context. In a subsequent case, in 2018, a court of coordinate jurisdiction disagreed. It ruled that, even where a provision appears to be clear and unambiguous, a court must still read the statute in its fuller context in order to decipher the legal meaning in that particular context. This article discusses the plain meaning rule with a view to elucidating its proper understanding while questioning the appropriateness of its continuing nomenclature especially in light of developments in recent decades.

Bilika H Simamba, The Plain Meaning Rule: A Quibble about Nomenclature and a Lot More, Statute Law Review, https://doi.org/10.1093/slr/hmab021. Published: 20 September 2021.

Sirko Harder, ‘The territorial scope of Australia’s consumer guarantee provisions’

ABSTRACT
Australian Consumer Law provides for consumer guarantees, according to which the taking of a particular action (for example, the application of due care and skill) or the presence of a particular fact (for example, a particular quality) is deemed as guaranteed where goods or services are supplied to a consumer in certain circumstances. Remedies lie against the supplier or (where goods are supplied) against the manufacturer or both. Pursuant to its application provisions, Australian Consumer Law applies to conduct outside Australia if one of several alternative criteria is satisfied. One criterion is that the defendant carried on business within Australia. There is no express requirement that the defendant’s business activities in Australia include the transaction with the plaintiff. This article argues that comity requires an implied restriction on the territorial scope of the consumer guarantee provisions, and searches for the most appropriate criterion for that purpose.

Sirko Harder, The territorial scope of Australia’s consumer guarantee provisions, Journal of Private International Law volume 17, 2021 – issue 2, https://doi.org/10.1080/17441048.2021.1956061. Published online: 22 September 2021.

‘No unjust enrichment claim for total failure of consideration where valid contract’

“A judge was right to dismiss an unjust enrichment claim when it contradicted the express terms of a valid share purchase agreement. This case is about the principle of unjust enrichment where there is an alleged total failure of consideration. It was ‘set in the context of bitter litigation … surrounding the division of the shared business interests of three wealthy and powerful Ukrainian businessmen’ acting through Dargamo, Avonwick and Azitio …” (more)

[Rebecca Fennessy, Allen and Overy – Compact Contract, 23 September]

Richard Garnett, ‘Internationalism in New Zealand conflict of laws’

ABSTRACT
Internationalism has long been regarded as an important goal of any national conflict of laws system. The three main branches of the subject – jurisdiction, choice of law and recognition and enforcement of foreign judgments – should be developed in a manner sympathetic to the needs of international trade and interaction and allow for recognition of foreign interests. In exceptional cases, however, local public policy should also be available to protect private rights. Internationalism is a major theme in the recent book, The Conflict of Laws in New Zealand. This article assesses the state of internationalism in New Zealand conflict of laws and the contribution of the book to the issue.

Richard Garnett, Internationalism in New Zealand conflict of laws, Journal of Private International Law volume 17, 2021 – issue 2, https://doi.org/10.1080/17441048.2021.1924423. Published online: 22 September 2021.