Category Archives: Public policy

‘Restraint of Trade: Nothing retro about restrictive covenants as retailer gets shirty over losses’

“Following breach of a restrictive covenant, Score Draw applied to the court for damages and injunctive relief claiming PNH’s breach had caused Liverpool FC’s refusal to renew a retail licence: Score Draw v PNH International. Score Draw were a licensed retailer of retro football shirts for Liverpool FC …” (more) [Tom Lort, Compact Contract, 9 […]

‘Foreign law illegality and non-contractual claims’

“Since Foster v Driscoll [1929] 1 KB 470, common law courts have recognised that contracts made with the intention to commit a criminal offence in a foreign state are unenforceable, even if the contract contemplated an alternative mode or place of performance. However, recent developments in domestic law illegality have sparked debate on whether foreign […]

Marcus Teo, ‘Foreign Law Illegality: Patel’s New Frontier?’

“As Patel v Mirza [2016] UKSC 42, [2017] AC 467 continues to revolutionise the law on illegality, the question arises whether its range-of-factors test will project its influence over more decidedly ‘foreign’ terrain: foreign law illegality, or illegality under a law other than the lex contractus. Foreign law illegality disputes have typically centred around the […]

Weixia Gu, ‘Harmonising the Public Policy Exception for International Commercial Arbitration along the Belt and Road’

ABSTRACT Following the Introduction, in subsequent sections, international commercial arbitration (‘ICA’) – and in particular, the public policy exception – are identified as prime initial targets for harmonization efforts. This chapter then considers the practical mechanics of harmonizing the public policy exception, proposing designation of the Asian Infrastructure Investment Bank (‘AIIB’) as a coordinating authority […]

Gommers, De Pauw and Letten, ‘“Thou shalt not pass” – trade mark and design offices and courts as guardians of public policy and morality’

INTRODUCTION This contribution explores what exactly is ‘public policy and morality’ in trade mark and design law. It is an evolving concept for sure, but can it be captured in a formula? The authors have focused on EU and Benelux case law. For trade marks, this article also touches upon the recent case law developments […]

‘A Restrictive Interpretation?’

“Covenants in restraint of trade present, in the words of the editors of Chitty on Contracts, ‘peculiar conceptual difficulty’. It is well known that such covenants may attract the application of the Nordenfelt test – namely, they must be no wider than is reasonable by reference to the interests of the parties concerned and the […]

David Foxton, ‘Public law illegality in private law claims: some recent developments’

“Professor Dicey took pride in the fact that English law knew no ‘droit administratif’, suggesting that ‘in England, and in countries which, like the United States, derive their civilization from English sources, the system of administrative law, and the very principles upon which it rests, are in truth unknown’. Dicey was particularly exercised by the […]

Charles Sullivan, ‘Noncompetes in a Downsizing World’

ABSTRACT As the nation confronts multiple federal and state attacks on employee noncompetition agreements (NCAs), one issue has remained relatively obscure: may an employer that terminates a worker for reasons not related to performance nevertheless enforce an NCA? A scattering of cases mostly holds no, and the recent Restatement of Employment Law’s agreement with those […]

Michael Handler, ‘Reconsidering the need for defences to permit disclosures of confidential copyright material on public interest grounds’

ABSTRACT This article assesses the adequacy of the Australian legal framework governing unauthorised disclosures of confidential copyright material on public interest grounds. In Australia, in contrast with the United Kingdom (UK), courts are unlikely to recognise the existence of a non-statutory ‘public interest defence’ to copyright infringement or a ‘public interest defence’ to breach of […]

Rennie W, ‘The Tainting Doctrine in Singapore Conflict of Laws’

ABSTRACT In Singapore conflict of laws, the tainting doctrine applies where a contractual claim governed by Singapore law is not itself unenforceable for illegality or public policy, but is sufficiently connected to a transaction which is so unenforceable. However, the mechanism of this doctrine – as articulated in the English Court of Appeal decision of […]