Category Archives: Public policy

David Cabrelli, ‘Regulating Restrictive Covenants in English Employment Law: Time for a Rethink?’

ABSTRACT The potentially chilling effects of non-compete covenants on the ambitions and capacities of former employees to forge careers as commercial entrepreneurs have been propelled to the forefront of public debate in recent years. For example, in the US, reports in the press of rank and file employees working in sandwich bars being restrained by […]

Liron Shmilovits, ‘When is illegality a defence to a tort?’

ABSTRACT The illegality defence is an important element of private law, but its operation has been unpredictable. In Patel v Mirza, the Supreme Court opted for a flexible approach, which does not increase predictability. This approach was recently confirmed in Henderson v Dorset Healthcare University NHS Foundation Trust and Stoffel and Co v Grondona. I […]

‘Illegal Sex Toy Patents’

Sarah R Wasserman Rajec and Andrew Gilden, ‘Patenting Pleasure’ (February 25, 2021), available at SSRN. In ‘Patenting Pleasure’, Professors Sarah Rajec and Andrew Gilden highlight a surprising incongruity: while many areas of US law are profoundly hostile to sexuality in general and the technology of sex in particular, the patent system is not. Instead, the […]

John Mead, ‘Killer not able to bring clinical negligence claim in her own right: Ecila Henderson v Dorset Healthcare University NHS Foundation Trust’ (Supreme Court, 30 October 2020)

“Introduction: Ms Henderson (EH) killed her mother whilst experiencing a serious psychotic episode. The trust admitted negligence in respect of her psychiatric care. The issue to be determined was whether EH could recover damages, in her own right, for losses she claimed to have suffered. Facts: EH was born in 1971 and began experiencing mental health problems […]

James Fisher, ‘Gray areas in tort: Illegality and authority after Patel v Mirza

ABSTRACT This comment describes and critiques the decision of the United Kingdom Supreme Court in Henderson v Dorset Healthcare University NHS Foundation Trust. It considers in particular the Court’s position on the effect of Patel v Mirza on previous illegality case law. It analyses the enduring tensions between Patel and the House of Lords’ decision […]

‘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 […]