Monthly Archives: September, 2018

Jo Braithwaite, ‘Thirty years of ultra vires: Local authorities, national courts and the global derivatives markets’

Abstract Between 1987 and 1989, Hammersmith and Fulham London Borough Council entered into nearly 600 derivatives transactions. In 1991, the House of Lords held that it lacked the capacity to do so and the contracts were therefore void. Taking this landmark litigation as its starting point, this article seeks to explain the persistence and evolution […]

John Murphy, ‘Duress as a tort law defence?’

Abstract This paper addresses a straightforward question: ‘Should tort law recognise a defence of duress?’ Previous scholarship concerning this issue is thin on the ground, and the answers it supplies are demonstrably inadequate. Those who have favoured the development of a duress defence in tort have done so by analogy with criminal law where duress […]

Shivprasad Swaminathan, ‘De-inventing the Wheel: Liquidated Damages, Penalties and the Indian Contract Act, 1872’

Abstract The drafters of the Indian Contract Act, 1872 had boldly sought to dispense with the English law’s troublesome liquidated damages-penalty dichotomy by providing in Section 74 that sums stipulated in the contract were to be awarded notwithstanding any proof of ‘actual damage or loss’, and, as a safety valve, empowered courts to scale down […]

VC Govindaraj, ‘JHC Morris, the proper law doctrine and the law of obligations: A critical appraisal’

Abstract Courts in the common law world, more particularly in England and the United States, had recourse to the jurisdiction selection rule with respect to the law of obligations, in law of contracts and law of torts, till the first half of the twentieth century. Needless to say, they were under the influence of AV […]

FitzPatrick, Adde and Moir, ‘High Court of England and Wales considers “right to be forgotten” for the first time’

Abstract NT1, NT2 v Google LLC [2018] EWHC 799 (QB). When applying the Google Spain ‘balancing exercise’ between data subjects’ ‘right to be forgotten’ and the rights of internet search engines in delisting claims, the scales are to be held in equal balance initially (ie neither privacy nor freedom of expression has precedence over the […]

Bodó, Gervais and Quintais, ‘Blockchain and smart contracts: the missing link in copyright licensing?’

Abstract This article offers a normative analysis of key blockchain technology concepts from the perspective of copyright law. Some features of blockchain technologies – scarcity, trust, transparency, decentralized public records and smart contracts – seem to make this technology compatible with the fundamentals of copyright. Authors can publish works on blockchain creating a quasi-immutable record […]

Eleonora Rosati, ‘UK Supreme Court holds that intermediaries have to bear no costs of injunctions against them’

Abstract Cartier International AG and Others v British Telecommunications Plc and Another [2018] UKSC 28 (13 June 2018) (Cartier). Since the first copyright blocking injunction issued in 2011 in Twentieth Century Fox Film Corp and Others v British Telecommunications Plc [2011] EWHC 1981 (Ch) (28 July 2011) (Newzbin 2), the rule on cost allocation in […]

Dove and Dove, ‘US State Tort Liability Reform and Entrepreneurship’

Abstract Tort and civil liability reform has been a hotly debated issue across US states. This has spawned a large theoretical and empirical academic literature that evaluates the implications of such reform and the impact that it can have on various aspects of an economy. This study adds to that literature by considering how various […]

Matthias Leistner, ‘Copyright Law on the Internet in Need of Reform: Hyperlinks, Online Platforms and Aggregators’

Abstract This paper concerns the question whether a revision of the substantive copyright law is needed due to the various challenges posed by Web 2.0. These range from the fair and equal treatment of user-generated content via links, frames and the various activities of online platforms and aggregators on the internet, to more technically complex […]

John Eldridge, ‘“Surrounding Circumstances” in Contractual Interpretation: Where are we Now?’

Abstract For several decades, the High Court’s pronouncements on the subject of contractual interpretation have generated confusion in intermediate appellate courts and caused considerable academic debate. The key difficulty relates to the question of when recourse may be had to evidence of ‘surrounding circumstances’ as an aid to construction. In particular, a controversy has emerged […]