Category Archives: Public policy

Michael Pooles, ‘Stoffel and Co v Grondona

“In October 2020 the Supreme Court delivered its judgments in the cases of Stoffel and Co v Grondona [2020] UKSC 42; [2021] AC 540 (Grondona) and Henderson v Dorset Healthcare University NHS Foundation Trust [2020] UKSC 43; [2021] AC 563 (Henderson). Although the facts were very different, both cases engaged the issue of the illegality […]

James Goudkamp, ‘Henderson v Dorset Healthcare University NHS Foundation Trust

INTRODUCTION The twenty-first century has been a period of considerable turmoil for the defence of illegality. In 2009, the House of Lords delivered judgment in Gray v Thames Trains Ltd. The defendants had negligently caused the claimant to suffer a psychiatric injury. Around two years later, the claimant, due to his altered mental state, killed […]

Casey and Niblett, ‘The Limits of Public Contract Law’

ABSTRACT The conventional set of tools for managing externalities created by private transactions is broad and includes various forms of ex ante regulation and ex post tort liability. While contract law is not often included in that set, some scholars have recently suggested that it should be. Most prominent is the suggestion that courts should […]

Anita Purewal, ‘Fiduciary Duties, Secret Profits, and the Illegality Defence: Crown Prosecution Service v Aquila Advisory Ltd [2021] UKSC 49′

ABSTRACT CPS v Aquila Advisory Ltd has provided a welcomed judgment on the application of the illegality defence in the context of secret profits accrued in breach of fiduciary duties. The judgment clarifies the priority to be given to constructive trusts over unauthorised fiduciary profits in the face of CPS confiscation orders, and examines the […]

Kelvin Hiu Fai Kwok, ‘Land-related Restrictive Covenants in Restraint of Trade’

ABSTRACT Does a land-related restrictive covenant fall within the restraint of trade (RoT) doctrine such that the restrictions under the covenant must be justified as reasonable? This important question, which impacts upon a wide variety of land-related transactions, had long been answered according to the ‘pre-existing freedom’ test prescribed by Lord Reid in the English […]

Matt Malone, ‘Non-Competes and Protections for Confidential Information and Trade Secrets: Reconsidering the Public Interest’

ABSTRACT Restrictive covenants in employment agreements have become a major tool of employment and intellectual property regulation over the last three decades. While the Canadian law of restrictive covenants has undergone minimal change during this time, reforms to the law of confidential information and trade secrets and sustained scholarly critique on the adverse policy impacts […]

Willems and Pulford, ‘Ex turpi causa non oritur actio / the illegality defence: did the Supreme Court in Henderson v Dorset help PI lawyers?’

“For much of the last decade the Supreme Court has been wrestling with and waiting for an opportunity to definitively identify and explain the elusive meaning of the ex turpi / illegality defence. The question for practitioners is whether the Supreme Court managed this task in Henderson v Dorset Healthcare University NHS Trust and more […]

‘Kim Krawiec on Taboo Markets’

“I talk with Kim Krawiec, Sullivan and Cromwell Professor of Law at the University of Virginia. Professor Krawiec is an expert in taboo trades and financial regulation, and has written multiple articles and book chapters on these topics. We discuss taboo markets, sex work, kidney exchange, Bad Art Friend, feminism, and the limits of markets.” […]

Londoño-Lázaro and Córdoba-Marentes, ‘Embedding Human Dignity Standards into Biotechnology Patents: The Role of Morality Clauses’

ABSTRACT This paper proposes an approach to the debate on how to reconcile international trade and human rights, explaining the minimum content of the ordre public and morality clauses (OPMCs) as the recognition of international human rights law (IHRL) standards in trade law and intellectual property law. Within the context of a multicultural and globalised […]

Vicki Huanga, ‘Trademarks, Race, and Slur-Appropriation An Interdisciplinary and Empirical Study’

ABSTRACT The Supreme Court decision in Matal v Tam sparked global controversy by striking down the proscriptions against registering racist slurs as trademarks. This Article investigates the impact of the case in two ways. First, by using scholarship from the social sciences, this Article examines the limits to the argument that racial slur-appropriation is a […]