‘Unjust enrichment by failure of consideration: HKR Middle East Architects Engineering LC v English

“The Abu Dhabi Plaza (pictured left), in Nur-Sultan (formerly Astana), the capital city of Kazakhstan, is the highest building in Kazakhstan and Central Asia. It was designed by HKR Middle East (HKRME) Architects in the United Arab Emirates, whose principal was Dublin architect Jeremiah Ryan. To keep his UAE receipts beyond the reach of his Dublin creditors, between April 2012 and March 2013, Ryan directed HKRME to pay US$8,094,873 to Sunvit, an entity in the British Virgin Islands controlled by the defendant, Barry English, a Director of one of Ireland’s leading engineering companies …” (more)

[Eoin O’Dell, Cearta, 17 June]

‘Frustrated Contracts and Wedding Venues’

“In the recent appeal of Willis v Offley Place Hotel HHJ Clarke allowed the venue to retain two thirds of its expenses incurred. The judge’s methodology in reaching that figure is of great significance. It was held that such expenses should be calculated by considering the entirety of the costs of running the venue including overhead expenses divided by the number of weddings …” (more)

[Harry Dyson, Park Square Barristers, 15 June]

Martin Fredriksson, ‘India’s Traditional Knowledge Digital Library and the Politics of Patent Classifications’

This article analyzes India’s Traditional Knowledge Digital Library (TKDL) as a potential intervention in the administration of patent law. The TKDL is a database including a vast body of traditional medical knowledge from India, aiming to prevent the patenting and misappropriation of that knowledge. This article contextualizes the TKDL in relation to documentation theory as well as to existing research on the uses of databases to protect traditional knowledge. It explores the TKDL’s potential consequences for India’s traditional medical knowledge and the wider implications that traditional knowledge databases can have for the safeguarding of traditional knowledge in general. The article concludes that on the one hand the TKDL bridges the gap between the main branches of Indian traditional medicine and the formal knowledge system of International Patent Classifications. Furthermore, it has also inspired revisions of the International Patent Classification system, which makes it better adapted to incorporate traditional medical knowledge. On the other hand, critical research on traditional knowledge documentation argues that traditional knowledge databases, like the TKDL, can decontextualize the knowledge they catalogue and dispossess its original owners. The TKDL, however, also fits into a national, Indian agenda of documenting and modernizing traditional medicine that predates the formation of the TKDL by several decades and challenges the dichotomy between traditional and scientific knowledge systems that originally motivated the formation of the TKDL.

Martin Fredriksson, India’s Traditional Knowledge Digital Library and the Politics of Patent Classifications, Law and Critique (2021). Published: 12 June 2021.

Thompson and Kuhn, ‘Does Winning a Patent Race lead to more follow-on Innovation?’

Competition between firms to invent and patent an idea, or ‘patent racing’, has been much discussed in theory, but seldom analyzed empirically and never at scale. This article introduces an empirical way to identify patent races, and provides the first broad-based view of them in the real world. It reveals that patent races are common, particularly in information-technology fields. The article then analyzes the effect of winning a patent race, showing that patent race winners do significantly more follow-on innovation, and their follow-on research is more similar to what was covered by the patent.

Neil C Thompson and Jeffrey M Kuhn, Does Winning a Patent Race lead to more follow-on Innovation?, Journal of Legal Analysis, volume 12, 2020, pages 183–220, https://doi.org/10.1093/jla/laaa001.

Hills and Schleicher, ‘Building Coalitions Out of Thin Air: Transferable Development Rights and “Constituency Effects” in Land Use Law’

Transferable Development Rights (TDRs) were supposed to be a solution to the intractable problems of land use, a bit of institutional design magic that married the interests of development and preservation at no cost to taxpayers and with no legal risk. Under a TDR program, development is limited or barred on properties targeted for preservation or other regulatory goals, but owners of those lots are allowed to sell their unused development rights to other property owners. In theory, this allows the same amount of development to occur while preserving favored uses without tax subsidies or constitutional challenges. Reviewing their use over the past fifty years, this Article shows that the traditional justifications for TDRs do not work. In practice, TDRs are not necessary to avoid takings litigation, are not costless to taxpayers, and do not balance the interests of preservation and development. Instead, they serve as yet another growth control in metropolitan areas where such controls have caused housing crises and major harms to the national economy. Assessed as a technocratic tool for solving problems in land use, TDRs are a failure.

But this Article shows that there is a case for TDRs not as a technocratic but rather as a political tool …

Roderick M Hills, Jr and David Schleicher, Building Coalitions Out of Thin Air: Transferable Development Rights and ‘Constituency Effects’ in Land Use Law, Journal of Legal Analysis, volume 12, 2020, pages 79–135, https://doi.org/10.1093/jla/laz008.

Asay and Plamondon Bair, ‘COVID-19 and Its Impact(s) on Innovation’

In previous work, we explored how certain characteristics of adversity are often more conducive to innovation than others. In this Article, prepared as part of the Lee E Teitelbaum Utah Law Review Symposium – The Law and Ethics of Medical Research, we review some of that work and apply it specifically to the COVID-19 context. We conclude by assessing certain policy implications in light of how the COVID-19 pandemic has both spurred and hindered innovation.

Asay, Clark D and Plamondon Bair, Stephanie, COVID-19 and Its Impact(s) on Innovation (June 7, 2021). Utah Law Review, forthcoming.

Jayems Dhingra, ‘Force Majeure Event Clauses – A Risk Sharing Strategy in Charterparty for Offshore E&P Rigs and Shipbuilding Contracts’

This article was first published in the ICMA Proceedings 2012, and is being revisited in context of ongoing pandemic to demonstrate that the principle of Force Majeure remains unchanged for Offshore and Marine Industry. The question in the minds of every enterprise engaged in long term Oil and Gas industry contracts, ‘Is COVID-19 Pandemic a Force Majeure Event?’ Who decides it and whether it is provided in the contract? Contracts are considered as the sole governing mechanism or agreed legal authority for governing relationships between the parties, under the principle of pacta sunt servanda or sanctity of contracts. Thus, contracts once executed cannot be changed due to post-contract events, except by an agreement between the parties. Therefore, if a pandemic like COVID-19 is not an identified event of an FME clause, then the current crisis raises serious questions and shakes the jurisprudence of international contract laws.

Force Majeure Events (‘FME’) a French term, represents Unknown, Unprecedented, Unexpected and Unavoidable events, having a negative impact on obligations and responsibilities under the contracts between the parties. In Chinese Contracts Law, it is noted that ‘force majeure means any objective circumstances which are unforeseeable, unavoidable and insurmountable’. In Common Law jurisdiction there is no specific definition of force majeure but is interpreted from the clauses provided in a contract and arguments based on the doctrine of frustration. The frustration may or may not be the direct outcome of a force majeure event. In conclusion, the article demonstrates that FME Clause is a risk sharing strategy between the parties to a contract and not an act of God.

Dhingra, Jayems, Force Majeure Event Clauses – A Risk Sharing Strategy in Charterparty for Offshore E&P Rigs and Shipbuilding Contracts (May 5, 2012). International Congress of Maritime Arbitrators XVIII (May 2012): 392-405.

Natalie Sheard, ‘Employment Discrimination by Algorithm: Can Anyone be Held Accountable?’

The use by employers of algorithmic systems to automate or assist with recruitment decisions (Algorithmic Hiring Systems (‘AHSs’)) is on the rise internationally and in Australia. High levels of unemployment and reduced job vacancies provide conditions for these systems to proliferate, particularly in retail and other low wage positions. While promising to remove subjectivity and human bias from the recruitment process, AHSs may in fact lock members of protected groups out of the job market by entrenching and perpetuating historical and systematic discrimination.

In Australia, AHSs are being developed and deployed by employers without effective legal oversight. Regulators are yet to undertake a thorough analysis of the legal issues and challenges posed by their use. Academic literature examining the ability of Australia’s anti-discrimination framework to protect against discrimination by an employer using an AHS is limited. Judicial guidance is yet to be provided as cases involving discriminatory algorithms have not come before the courts.

This article provides the first broad overview of whether, and to what extent, the direct and indirect discrimination provisions of Australian anti-discrimination laws regulate the use by employers of discriminatory algorithms in the recruitment and hiring process …

Sheard, Natalie, Employment Discrimination by Algorithm: Can Anyone be Held Accountable? (November 2020). University of New South Wales Law Journal (forthcoming), volume 45, no 2, 2022.

Facing Up to Scarcity: The Logic and Limits of Nonconsequentialist Thought

Barbara H Fried, Facing Up to Scarcity: The Logic and Limits of Nonconsequentialist Thought, Oxford University Press, 2020, 269pp, $70.00 (hbk), ISBN 9780198847878. Barbara H Fried (a law professor at Stanford) has published extensively on theories of distributive justice. This book consists of revised versions of ten previously published articles (1995-2020) plus three new chapters. The main focus is on presenting arguments against the following: (1) attaching much moral significance to highly simplified thought experiments (eg, trolley problems), (2) John Rawls’ contractualist account of justice, especially his appeal to maximin/leximin reasoning behind the veil of ignorance, (3) TM Scanlon’s contractualist account of moral permissibility, (4) social (ie, Hobbesian or quasi-libertarian) contractarian accounts of moral permissibility or justice, (5) Robert Nozick’s right-libertarian theory, and (6) left-libertarianism. These critiques are largely internal in that they accept the core commitments of the view addressed and argue either that those views are inconsistent or that commonly assumed implications do not follow … (more)

[Peter Vallentyne, Notre Dame Philosophical Reviews, 1 June]

‘Bacardi guaranteed or indemnified to breeze through contractual interpretation’

“Once again the court looks at the vexed question of the distinction between a guarantee and an indemnity. The main dispute arose under a cost-sharing agreement and was referred to arbitration. This was the trial of a number preliminary issues about the surety obligations under the agreement. I am going to look just one of those …” (more)

[Robert Steele, Allen and Overy – Compact Contract, 16 June]