Fiqh in English law?

Towards a General Notion of Good Faith in English Contract Law

Given that continental civil law scholarship applies the concept of good faith in either a subjective (honesty in fact) or objective sense (good faith and fair dealing), the present article focuses on the latter one. The traditional view in England and Wales discards the recognition of a general principle of good faith and fair dealing in English law. English courts have adopted a piecemeal solutions approach (as shown by the judicial decisions issued in Interfoto Picture Library (1987) and Walford v. Miles (1992)). Meanwhile, the principle in question, along with the concept of the freedom of contract, is one of the most important principles of the continental civil law tradition (cf. art. 1104 of the French Civil Code, § 157, § 242 of the German Bürgerliches Gesetzbuch, art. 2 (1) of the Swiss Zivilgesetzbuch, art. 6:2 Burgerlijk Wetboek, art. 5 of the Polish Civil Code, art. 2 (1) Common European Sales Law, art. 1:201 Principles of European Contract Law, art. III1:103 Draft Common Frame of Reference). The current work analyzes recent English case law (in particular Yam Seng (2013)), which seems to acknowledge the principle of good faith and fair dealing while rejecting the traditional view mentioned above. The comparative approach — references to American, and Commonwealth law, as well as to that of particular European states — is taken into account. The author claims that hostility to the concept of good faith in an objective sense in English law is superficial. One may expect that in the near future courts in England and Wales will follow the path taken by courts in the United States (§ 205 of the Restatement (Second) of Contracts (1981)), Australia (Renard Constructions (1992)) and Canada (Bhasin v. Hrynew (2014)), and they will finally recognize good faith as an underlying principle.

This thesis examines the insights which may be gained from analysis of the potential for establishing a normative regime in English law for cohabitants, who now form a substantial constituency as an established alternative family unit, headed by apparently committed cohabiting couples, who are neither married nor in registered civil partnerships. The thesis critically analyses the 2006-7 work of the Law Commission in London, the apparent government reluctance to take this further despite Scottish implementation of a similar relationship generated compensation scheme on breakdown of such relationships, and the experience of other jurisdictions which have provided dedicated legislation for such families. The thesis also includes the results of some empirical fieldwork in qualitative studies with practitioners in a small number of key jurisdictions, including some comparative analysis of these experiences, and presents a theory which addresses the practical adverse impact of the lack of such a normative scheme in England and Wales. The thesis makes an original contribution to the debate on this area of English Family Law by providing a theoretical basis for legislation likely to be acceptable within the current modernisation of Family Justice in the recently established Family Court. It aims to meet both the drivers of that modernisation and most of the historic arguments against formally recognising (and discretely addressing the needs of) the substantial and continually growing cohabitant community. It makes further original contribution in analysing experience in the key jurisdictions which have introduced cohabitant legislation, both within our own geographical neighbourhood of the UK and EU and within the common law states of the Commonwealth, which were originally British settlements importing English law with them. Another original contribution is provided by an analysis of how such legislation could fit within the English legal system to provide a pragmatic solution to the escalating numbers of such families who now form a significant group expecting to find clarity in legal provision for their circumstances.

By definition, private international law is fundamentally concerned with a trio of cross-border issues: Do the English courts have jurisdiction to hear a case? What law is the court to apply? And will the judgments of the courts of another country be recognised in England? One of the interesting themes of the 20th century development of private international law in England was to see the extent to which this characteristic developed and with what consequences. A further significant thread was that of the relationship between public and private international law. This chapter looks at developments in private international law in England at the dawn of the 20th century, including jurisdiction of the courts, recognition of foreign judgments, range of cross-border issues, choice of law, and family law matters. Developments during the 20th century include law reform, interface of public and private international law, law on international trade, and role of the jurist. The legacy of émigré legal scholars from Germany in the field of private international law is also examined.

The picture of the early perception of English common law in Germany is still quite blurred. From the 17th century on, English constitutional matters and political philosophy attracted the attention of German academics. But it is not until around 1750 that interest stirred in English private and criminal law. Due to its close connections with the Hanoverian court, Göttingen soon established itself as the epicentre of this early German academic anglophilia. Even though around that time England had begun to feature on travel maps of the grand tour, few German scholars had sufficient command of the English language to engage with original British literature. Initially, interested German legal academics therefore often had to rely on translations of English works into Latin, German or French. One of the earliest German treatises on English law, Christian Hartmann Samuel Gatzert’s Latin Commentatio iuris exotici historico-litteraria de iure communi Angliae. Of the Common Law of England (Göttingen 1765), is testament to this. But other literary products had paved the way to Gatzert’s Commentatio: the literature reviews of the bustling scene of learned journals. Using the example of the Göttingische gelehrte Anzeigen (first published in 1739), the paper addresses the question how German learned journals treated contemporary publications on English law. It analyses the challenges faced by the reviewers, amongst others a problematic continental-legal perspective and grave misunderstandings concerning the English legal system, and assesses the role the Göttingische gelehrte Anzeigen played in disseminating knowledge about English law and in offering a wider German readership glimpses at a foreign legal system, c. 1739–1775.

The English common-law rules of private international law have, to a large extent, been replaced by European conflicts-law regulations in the United Kingdom (UK). Nevertheless, English common law remains highly influential in numerous jurisdictions. In many legal systems, the private-international-law rules are based fundamentally on the common-law rules developed by English courts. This is problematic since the common-law rules of private international law may be outdated. This article examines the English common-law choice-of-law rules – more specifically, the rules and principles concerning the determination of a tacit choice of law in international commercial contracts. The traditional common-law position is compared to selected common-law jurisdictions – namely, Australia, Canada, India, Israel and New Zealand. Finally, the article highlights the progress (or lack thereof) in the aforementioned common-law jurisdictions in addressing the issues related to the determination of a tacit choice of law in international commercial contracts.

The current historical consensus is that English common law was somewhat confused, but that coerced servitude was legal in England before 1772, and certainly in its empire, where English law on slavery did not reach, because it was “beyond the line” of English justice. The common law is characterized by an effort to see continuity and consistency, and historians (despite our natural desire to track change) often look for those patterns too. Such efforts to provide a consistent overview of an England that was free and colonies that created slavery on their own—have obscured the vibrant struggle over slavery within the English judicial system—the common law—over more than a century. Not only did the common law on slavery change profoundly during the seventeenth and eighteenth centuries: the common law became an instrument of crown policy. It did so within a federal empire, wherein colonial legal norms had to adhere, in crucial ways, to that common law. English high court judges thus provided the legal foundation for an imperial common law of slavery that allowed people to be deemed absolute property. That definition of people as property was closely connected to absolutism, both in theory and practice. In theory the absolute power of kings over subjects was connected to that of masters over slaves. In practice, the crown's use of the courts to create laws without parliamentary consent (to bypass parliament) also increased crown revenue and thus their independence from parliamentary control. These powerful legal mechanisms made it possible to “recover” enslaved people as assets for debts, a legal definition that was essential for a market in people to function sucessfully. This history reveals the absolutist character of early capitalism, and the extent to which the character of capitalist development depends on the legal rules that define markets and justice.

This case is one of several types of legal claims that occurred due to the bankruptcy of H Shipping, which had a major impact on the shipping industry in South Korea. Among them, there are various issues such as the determination of the governing law for the claim for damages in relation to the termination of the contract due to the commencement of the rehabilitation procedure in time charters, the issue of the claim for the return of residual oil at the time of redemption in time charters, and the issue of the application of off-set under English law. Among the main issues related to this, we will look at the problem of the residual oil return bond according to the time charters’ forms. In the case where the governing law is designated as the English law of a foreign law, it is expected that the issue of off-set will be reviewed. First of all, there are many differences between the use of the NYPE 1946 and 1993 forms and the use of the NYPE 2015 forms. When using the former forms, it is necessary to supplement the ‘rider clause’. Especially, it is necessary to recognize that the residual oil return bond due to the termination of the time charter contract, which is the core of this case, is excluded from the NYPE 1946 form, but is included in the NYPE 2015 form. Next, there is the issue of off-set the termination of the contract under English law. The position of the English and Korean Courts are that set-off under common law and set-off under common law have a substantive nature in the application of set-off under the equitable law. Under English law, the problem of set-off for premature termination lies in the application of set-off under common law and set-off under equitable law. The judgment of the English court and the Korean court is that set-off under the common law is applied because it has a substantive law nature. Although it is a reasonable judgment, when the English law is applied as the governing law, there are cases where the position on the permissible off-set by the cause of the voyage charter party and the time charter party is different in carriage of goods by sea, so additional review is necessary. Based on these results, it is hoped that they will serve as practical references in the future.

Purpose – This research aims to explore the possibility of raising and adjudicating Shari'ah issues in Islamic financial contracts before the secular courts with specific reference to the UK and Malaysia. Design/methodology/approach – This is a legal research, and therefore, the paper uses the qualitative research methodology whereby a content analysis, in-depth case study, and library-based research were mainly used. Findings – Shari'ah issues raised before the UK courts, and arguably, before the secular courts in other Western jurisdictions, would not be adjudicated and enforced. English courts, in particular, would decide Islamic financial contracts according to the English law, disregarding Shari'ah issues. Conversely, Shari'ah issues raised before Malaysian civil courts would be duly adjudicated and enforced. The civil court is bound, by the new Central Bank of Malaysia Act 2009, to refer those issues to the Shari'ah Advisory Council of the Central Bank of Malaysia for them to be ascertained. The subsequent ruling of the SAC is binding on the courts. Originality/value – The Malaysian model for the adjudication of Shari'ah issues in Islamic financial contracts is very effective. Therefore, the research proposes to the parties in international Islamic financial contracts to choose Malaysian law as the law of reference and Malaysian courts as the forum for settlement of disputes. The Malaysian model, being already tested, can also be successfully exported to other countries wishing to introduce or develop Islamic finance.

Use of English Law in Uzbek Corporate Transactions

My contribution deals with the issue concerning the question arising on the applicable law in and after the transition period set in the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community. The aim of this contribution is to analyze how the English and European laws simultaneously influence one another. This analyzation will lead to the prognosis of the impact Brexit will have on the applicable English law before English courts and the courts of the states of the European Union. The main key question is the role of lex fori in English law. Will English law tend to return to common law rules post-Brexit, and prefer the lex fori?

'A Patchwork of Accommodations': Reflections on European Legal Hybridity and Jurisdictional Complexity

Re-Examining the Constitutionality of Remittitur Under the Seventh Amendment

The emergence of Islamic finance in the United Kingdom (‘UK’) has rendered it a remarkable alternative to conventional finance. The following paper studies how the English and Welsh courts interpret and apply Shariah-based Islamic finance principles under English law. The paper takes the view that Islamic finance arrangements and the Shariah principles that inspire them are capable of being conveyed through their conventional counterparts under English finance law, insofar as doing so does not contravene English law. The focal points enshrined under this paper are: [1] the means through which Islamic finance arrangements are interpreted and applied under English law; [2] the approaches undertaken to honour such Islamic finance principles without contravening English law; and [3] the approach taken when the courts are faced with a conflict of laws. Using legal analysis, this paper finds no one-fit-for-all method for the English and Welsh courts when dealing with Islamic finance cases. However, the unanimous principle is that Islamic finance arrangements will never be treated exceptionally to their conventional counterparts.

This chapter assesses the extent to which the common law system differs from a codified system in the application of the Francovich principle and the extent to which this results in divergence. A comparison of the English and German law of state liability suggests that it is easier to achieve an integration of the Francovich remedy in English courts than it is in German courts. In a more pragmatic case-by-case approach, English courts have successfully embedded the Francovich remedy into English law. The German position, on the other hand, is marked by a more reluctant attitude. Case examples have shown that the German Federal High Court (BGH, Bundesgerichtshof) does not favour a Europeanized version of the codified tort liability, possibly leaving this to the legislature.