Common Law Research Articles

Evolution of the Concept of Punitive Damages in Takaful Insurance in the Kingdom of Saudi Arabia: Lessons Learned from British Common Law

Evolution of the Concept of Punitive Damages in Takaful Insurance in the Kingdom of Saudi Arabia: Lessons Learned from British Common Law

Unpacking the trust concept: closing the common law–civil law gap

Abstract This article builds on the practical experience of a Swiss lawyer turned English solicitor, first in understanding the trust concept and then explaining it to others. The main stumbling block is the idea of a ‘split’ ownership, but also misconceptions about common law, its legal sources and even the language used by common lawyers to describe the trust mechanism. A proper understanding of the trust mechanism requires a degree of ‘unpacking’, ‘unlearning’ and even ‘rewiring’, and the first part of this article uses familiar language to deconstruct and demystify several misconceptions. The second part will provide some reverse engineering and put everything back together. Common lawyers may find this ‘deconstructing’ and ‘reconstructing’ exercise helpful, too, as it provides some insight into the challenges faced by their peers outside the common law world in understanding what is going on here.

부적절한 법정지의 법리에 관한 대체적 법정지의 요건과 판결의 집행가능성 요소

In a globalized world, business activities are becoming increasingly de-nationalized and with that cross-border disputes are also on the rise. Parties seeking to resolve international disputes through trial may have an incentive to engage in forum shopping, which is the practice of selecting a forum where they believe they are more likely to receive a favorable judgment. In response to such a complaint, the defendant may assert forum non conveniens as a defense. Under the forum non conveniens doctrine, the court may dismiss a claim if it would cause undue inconvenience to the defendant, even if the forum has jurisdiction. The forum non conveniens doctrine has been developed mainly in the common law system, but Korea also introduced the doctrine in 2022 with the comprehensive revision of the Private International Law Act jurisdiction rules and has adopted it to a limited extent in line with the civil law system. Article 12, which stipulates this doctrine, however, does not specify specific standards for applying the doctrine, leaving it open to interpretation. Therefore, focusing on the United States, which has accumulated precedent on the forum non conveniens doctrine, this paper examines what constitutes an alternative forum and what the factors are for the enforceability of the judgment. The forum non conveniens doctrine in the United States involves first, examining whether an alternative forum exists, and second, applying a balancing test that weighs private and public interest factors, and determine whether deference should be given to the plaintiff's chosen forum. The enforceability factor is one of the private interest factors, which is important for plaintiffs' access to justice and judicial economy. Accordingly this study examines how the forum non conveniens doctrine is interpreted and applied in the United States, and then examines the forum non conveniens doctrine in Korea.

Anxious Scrutiny in Hong Kong Administrative Law: Origins, Adaptations, and Techniques

Abstract ‘Anxious scrutiny’ has become one of the most used terms within the lexicon of judicial review throughout the common law world, including Hong Kong, yet surprisingly remains understudied in the scholarly literature. In contrast to the considerable body of literature on substantive review of discretion in relation to proportionality and Wednesbury unreasonableness as rival standards of review, there is still much to explore in relation to the foundation, purpose, and techniques of anxious scrutiny review, including how the concept may have come to depart from its English roots in other common law jurisdictions. Using Hong Kong as a case study, this article examines how anxious scrutiny has been received in an Asian common law jurisdiction, considering both the scope of application and the techniques used by judges under this standard. Through a detailed examination of the case law, it traces the origins and evolution of the standard and its future role within the sliding scale of substantive review within Hong Kong's system of public law.

Exploring the Impact of Judicial Activism on Legal Precedent: A Comparative Analysis

Judicial activism, a concept characterized by judges making decisions that extend beyond strictly interpreting the law, has been a subject of debate and scrutiny within legal scholarship and practice. This paper seeks to explore the impact of judicial activism on legal precedent through a comparative analysis of various judicial systems. By examining case studies and empirical data from different jurisdictions, including common law and civil law systems, this study aims to assess how judicial activism influences the development and stability of legal precedent. Furthermore, the paper investigates the potential consequences of judicial activism on legal certainty, the rule of law, and the balance of power among branches of government. Through this comparative analysis, insights will be gained into the complexities surrounding judicial activism and its implications for the evolution of legal systems globally.

Regulation of Corporate Criminal Liability According To Law Number 1 Year 2023 On The Criminal Code

Corporation as a subject of criminal law that can be held criminally responsible is not known in the old Criminal Code. This is because the old Criminal Code is a legacy of the Dutch colonial government whose legal system adheres to the Continental European legal system (civil law). Countries that adhere to the civil law legal system are a little behind in terms of regulating corporations as subjects of criminal law, in contrast to countries that adhere to the common law legal system, which has regulated corporate liability and this has started since the industrial revolution. In Indonesia itself, the regulation on corporation as a subject of criminal law is regulated in the Law outside the Criminal Code. Meanwhile, the new Criminal Code has regulated corporations as legal subjects that can be held criminally liable. As regulated in Article 45 to Article 50, Article 56, and Articles 118 to 124 of Law No. 1 of 2023 on the Criminal Code. Although prior to the enactment of Law No. 1 of 2023 on the Criminal Code there was already Perma No. 13 of 2016 concerning Procedures for Handling Criminal Cases by Corporations and Regulation of the Attorney General of the Republic of Indonesia Number PER-28/A/JA/10/2014 concerning Guidelines for Handling Criminal Cases with Corporate Legal Subjects. Prior to the issuance of the regulation, the Attorney General's Office had first issued Circular Letter of the Attorney General of the Republic of Indonesia Number B-036/A/FT.1/06/2009 regarding Corporations as Suspects/Defendants in Corruption Crimes addressed to the Head of High Prosecutors throughout Indonesia. Thus, Corporations as a subject of criminal law can already be held criminally liable with the strength and legal certainty stipulated in the New Criminal Code.

Comparative Analysis of Qualifications and Disqualifications of Directors: Commercial Act of Iran and Common Law Countries

Comparative Analysis of Qualifications and Disqualifications of Directors: Commercial Act of Iran and Common Law Countries

Trusts and trust law in Thailand

Abstract Trusts in Thailand trace back to the late 19th century, influenced by the Bowring Treaty of 1855. Initially under English common law, the Thai Civil and Commercial Code of 1935 restricted the establishment of trusts. However, regulations evolved, with the Securities and Exchange Commission (SEC) proposing legislation in 2007 to facilitate trust transactions, particularly REITs and Infrastructure Trusts. Governed by Section 1686 of the Civil and Commercial Code and SEC regulations, REITs and Infrastructure Trusts cater to real estate and infrastructure investments. Despite past constraints, Thailand’s trust landscape now emphasizes regulatory frameworks for transparency, investor protection, and market competitiveness, potentially opening to private investors.

Legal Gaps and their Logical Forms

Abstract The concept of legal gap is tackled from a number of logical perspectives and semantic methods. After presenting our own goal (Section 1), a first introduction into legal logic refers to Bobbio’s works and his formalization of legal statements (Sections 2 and 3). Then Woleński’s contribution to the area is taken into account through his reference to the distinction between two juridical systems (viz. Common Law vs Civil Law) and the notion of conditional norms (Section 4). The notion of reason is also highlighted in the case of Raz’s legal logic, thereby leading to a future connection with von Wright’s logic of truth and an analogy made with an anti-realist reading of truth-values and norms (Section 5). Our personal contribution is introduced through a reflection on how logic should deal with the logical form of norms (Section 6), before entering a number of crucial definitions and distinctions for the concepts of norm, legal statement, and promulgation (Section 7). The final point is a proposed semantics for legal statements, which is both many-valued and gap-friendly (Section 8). A distinction between a number of requirements for permission and forbiddance leads to a set of non-classical juridical systems in which non-permission and forbiddance are not equivalent with each other any more; this does justice to Woleński’s former distinction between Common Law and Civil Law, also leading ultimately to a non-classical square of legal oppositions in which several legal operators may collapse into other ones (Section 9).

Financial Issues of Third Party Litigation Funding in Anglo‑Saxon Law and in the Russian Federation

The paper is devoted to the issues of legal regulation of litigation funding by persons not directly involved in the case. The study is based on the case law of the British Commonwealth and the Russian Federation. The historical aspects of the formation of the institute and the champerty doctrine are considered, in which such financing is disclosed in two aspects: a) support and encouragement of the process itself, when in its negative connotation control or support of the dispute or the parties leads to a violation of common law; b) a percentage of the price of the claim without material interest in the dispute.The paper examines the issues of reimbursement of court costs in Russia, England and Ireland, and, considering the case of the United States, starts a discussion about the possibility and necessity of disclosing information about the sources of litigation funding. The question is raised about the need to extend the financial confidentiality regime to relations on litigation funding without any exceptions. Following the cases of court practice in England and Ireland, the author raises questions about the legal status and interest of the procedural sponsor. It is argued that the rhetoric about the role of the court may be lofty, but the reasoning does not reach such heights if access to justice is blocked due to lack of funds. Litigation funding and the assignment of rights allow low-income parties to achieve a certain degree of justice; it can be recognized that justice is imperfect, but better than none at all.

Merchants’ agents and the process of bottom-up harmonization between European towns, fourteenth to sixteenth centuries

Abstract Since merchants typically traded between towns, they had to cross legal boundaries on a regular basis. This article discusses one of the instruments they used in order to deal with the challenges of legal pluralism, namely the instalment of proxies. The proxy had to be recognized as a legitimate representative of another merchant and, for that purpose, he carried with him a procuration letter. These letters look remarkably similar considering that they were drafted in different towns across Europe. An analysis of the procurations shows that common rules and norms developed through the constant exchange between merchants and urban authorities.

Do creditors care about greening in corporations? Do contingencies matter?

AbstractThis study assesses whether creditors consider ecological practices (i.e., resource usage, emissions, and eco‐innovation) when setting interest rates during loan decisions and whether firm‐level contingencies play a role in this relationship. Based on a sample of 38,127 firm‐year observations of non‐financial firms operating worldwide between 2004 and 2019, our evidence indicates that eco‐friendly practices have no significant direct effect on the cost of debt. Thus, we consider other theoretically expected channels that moderate this link. Notably, profitability and board gender diversity significantly moderate the relationship between eco‐friendly practices and the cost of debt. Further investigation reveals interesting associations between low and high governance systems, low and high financial development environments, code law versus common law systems, and polluting versus non‐polluting sectors. We suggest theoretical and practical implications by which firms can reap greater benefits from environmental engagement.

Between a ‘flexible’ and ‘rigid’ interpretation of the list of prohibited grounds of discrimination under article 21(3) of the constitution of Uganda: Uganda Law Society and 12 others v Attorney General [2024] UGCC 2 (13 February 2024)

Article 21 of the Constitution of Uganda (1995) provides for the right to freedom from discrimination. Article 21(3) provides that for the purposes of Article 21, discrimination ‘means to give different treatment to different persons attributable only or mainly to their respective descriptions by sex, race, colour, ethnic origin, tribe, birth, creed or religion, or social or economic standing, political opinion or disability.’ Article 45 of the Constitution provides that ‘[t]he rights, duties, declarations and guarantees relating to the fundamental and other human rights and freedoms specifically mentioned in this Chapter shall not be regarded as excluding others not specifically mentioned.’ In Uganda Law Society and 12 others v Attorney General (13 February 2024), the Constitutional Court invoked Article 45 and held that the list of prohibited grounds under Article 21(3) is not exhaustive. In this article, the author relies on the drafting history of Article 21(3), the jurisprudence of the Supreme Court on Article 21(3) and the literal interpretation of Article 21(3) to argue that the list of prohibited grounds in Article 21(3) is exhaustive and that the Constitutional Court erred when it held to the contrary. The author argues further that Article 45 should not be relied on to read rights into the Constitution. It should be applicable to statutory or common law rights.

Effects of Country- and Firm-Specific Factors on ESG Performance: A Cross-Country Analysis for Emerging Markets

This paper aims to shed the light on factors influencing ESG performance in emerging markets. This paper employed data from 20 emerging markets from 2013-2022 and investigated factors which classified into 2 dimensions, country- and firm- specific factors. Country specific factors include economic growth, level of corruption, legal system, and economic equality. Firm specific factors are firm size, capital structure, performance, and free cash flows. Pooled OLS regression controlled for country- and year- fixed effect are employed. The results show that number of firms that reported ESG performance has increased as well as the average ESG score has risen over the past a decade. Results on country-specific determinants reveal that GDP growth is negatively impact on ESG performance. A company based in common law countries shows higher ESG performance. In addition, size and debt-to-equity ratio are positively influence ESG performance. These results suggest both company and country characteristics effect ESG performance in emerging market. Thus, investors who seek for ESG performance should give more attention on these factors for making their decision

Jury System and Democracy: A Reflection Based on Comparison Method

The jury system is one of the most concerned litigation systems in the world. The jury that symbolizes democracy is declining in the common law system. Likewise, the Chinese law circle holds different viewpoints on China’s existing people’s assessor system. The judicial effectiveness of the Anglo-American jury was analyzed, and the relationship between the Anglo-American jury system and judicial democracy was examined in this paper. Moreover, an insight into the existence or abolishment of the people’s assessor system was offered based on its status quo. On this basis, some suggestions were given regarding realizing judicial democracy for China’s existing judicial system without impairing judicial specialization.

Water-polymer interactions and mechanisms of water-driven glass transition decrease in non-isocyanate polyhydroxyurethanes with varying hydration sites

Non-isocyanate polyurethanes (NIPUs) with varying content of secondary amino groups along their chain were studied with respect to water absorption and plasticization. Secondary amino groups promote water uptake. Water sorption isotherms in the water activity range 0–0.97 are discussed in terms of various sorption models. Secondary amino groups act as additional hydration sites, increasing monolayer capacity. The red shift of the IR band assigned to the carbonyl of the urethane and the simultaneous blue shift of the urethane N–H bending band show cleavage of the polymer-polymer hydrogen bonds upon water uptake, due to strong interactions between water molecules and hydroxyurethanes constituting the primary hydration sites. A decrease in glass transition temperature (Tg) is observed with increasing water content. The effect is discussed in terms of plasticization and slaving mechanisms, while a peculiar decrease of Tg at very low hydrations is attributed to a mechanism not following common mixing laws.

Exemplary Damages Practice in Late Eighteenth and Early Nineteenth-Century England

Abstract A longer perspective on the modern Anglo-American law of exemplary (or punitive) damages views it as having first begun to emerge after the cases of Huckle v Money and Wilkes v Wood were decided in 1763. This article seeks to further deepen and clarify this perspective. It does so by systematically tracing the evolution of the adjudicative practice according to which English civil juries awarded ‘exemplary damages’ from the period circa 1764 to the early nineteenth century. It shows that this practice scarcely ‘hardened into law’ in the aftermath of the Huckle and Wilkes decisions. In fact, as had been the case long before 1763, for a long time after it, jury determinations as to exemplary damages in common law tort actions remained entirely outside the control of any formal legal doctrine which either of these decisions were taken to have authoritatively recognized.

Comparative Analysis of Copyright Regimes in Nigeria, the United States of America and France

This paper deals with a comparative analysis of the copyright regimes Nigeria, the United States of America (U.S.) and France with a view to identifying impart areas from which to derive lessons. The United States is chosen because it is one of the most developed economies where the copyright industry has thoroughly developed to add to the country’s GDP. It has its copyrights roots in the common law, same as Nigeria. France is chosen because, it is a country which is also advanced in copyright development-the place of birth of the first international copyright treaty, the Berne Convention. This is added to the fact that France is a Civil law country and will offer interesting areas of comparison to the common law system.

Retaliation in the Modern Workplace and Federal Laws in the United States of America: Cases and Reflections About the Undermining of Employees’ Legal Rights

Employees have the right to assert their federally-protected rights against their employers when they believe a violation of those rights has occurred. However, workplace retaliation poses challenges for employers reporting illegal or discriminatory acts. This study examines federal and common law to better identify the concept of retaliation and the legal protections against it. The cases analyzed in this study are Thompson v. North American Stainless, Burlington Northern and Santa Fe Railway Company v. White, Bragg v. Munster Medical Research Foundation, Inc., and Hutchinson v. City of Oklahoma City. These cases highlight instances of retaliation against employees exercising their legal rights, showcase circumstances where employees won, and look at affirmative defenses employers can raise. The goal is to deepen understanding around retaliation and the current laws surrounding it. Recommendations and possible remedies for workplace retaliation will be discussed in the latter part of the analysis to better understand the options available to future employees and employers regarding this issue.

The Role of Judges in Selecting Efficient Norms in a Common Law System: A Law and Economics Perspective

Abstract This study delves into the common law efficiency theory, proposing that the efficiency of legal norms in common law systems predominantly depends on judges’ biases towards efficiency. By developing an economic model, it is demonstrated that the proportion of efficient norms correlates with the predisposition of judges towards efficiency, influenced by their personal beliefs. Historical analysis of common and civil law systems reveals that neither inherently guarantees efficiency; rather, their efficiency is contingent upon their adaptability to societal needs and prevailing judicial ideologies. The paper concludes that the efficiency of a legal system relies on its congruence with societal values and judicial ideologies, emphasizing that shifts in the judiciary’s ideological makeup have implications on legal system efficiency. This research contributes to a deeper understanding of the multifaceted process shaping legal norms in common law, highlighting the critical role of judges, societal values, and legislative dynamics.