Common Law Regime Research Articles

Unfair competition law in Ghana: unravelling the scope, evolving jurisprudence, challenges and future directions

Abstract Despite its implications for businesses and consumer welfare, unfair competition law has received limited scholarly attention in Ghana. This article fills a significant research gap by examining Ghana’s legal framework for unfair competition, focusing on legislative measures and court decisions in an attempt to facilitate comprehensive academic inquiry into the subject. The article explores how Ghana addresses unfair competition in line with international standards, particularly Article 10bis of the Paris Convention and the Trade-Related Aspects of Intellectual Property Rights Agreement. It assesses how Ghanaian courts have developed unfair competition protection jurisprudence over time with co-existing statutory and common law regimes. Additionally, it highlights the challenges in applying the law and areas for improving it. The study demonstrates how Ghana adopts various approaches to unfair competition, comprising a single source statutory reference point which coexists with the common law tort of passing off. The statutory approach, alone or with the other approaches, meets Ghana’s international obligations. However, there is a need for coherence and effectiveness in the interaction between statutory law and common law principles. Understanding this interaction is essential for ensuring Ghana’s consistent and effective application of unfair competition laws.

A Comparative Analysis of Contract Law in Common Law and Civil Law Jurisdictions

Contract law's key tasks include the creation, interpretation, and enforcement of agreements between parties. As a result, contract law is seen as an essential component of all types of legal systems. However, due to the distinct historical, cultural, and judicial contexts of common law and civil law states, the development of contract law has taken a different path in each of these jurisdictions. A comparison is made between the core ideas, central concepts, and different approaches that are characteristic of contract law in common law and civil law regimes. the beginnings and development of contract law within the context of both the common law and the civil law legal systems. the development of contractual ideas, shedding light on the various foundations that continue to have an impact on contemporary legal philosophy, and making reference to the legacy left behind by the Roman law tradition and the English common law history. a comparison and contrast of the impact of reasoning based on precedent in common law and codified statutes in civil law is used to illustrate the various techniques that are used to govern the interpretation and adjudication of contracts.

Plea Bargaining - A Comparative Study of India with Foreign Countries

Plea bargaining has become more popular as a way to resolve court issues around the world. The application, scope, and operation of plea bargains change significantly between the common law and civil law regimes. To analyze these differences with respect to different jurisdictions, a comparison between India and the United States has been conducted in this study. The relative advantages and disadvantages of plea bargaining are still debated. This is because some argue that plea bargains call into question the primary purpose "of a trial, i.e." to establish the truth and dispense justice. There is no denying that India needs a framework for speedy administration of justice. India's courts are being battered by rising criminal cases. Prisons are now overflowing with inmates being held without trial due to continuous delays in case disposal. This research uses normative law that examines document studies, namely using various secondary data such as laws and regulations, court decisions, legal theories, and can be in the form of scholars' opinions. This type of normative research uses qualitative analysis, namely by explaining existing data with words or statements not with numbers.The results show that India developed plea bargaining as a response to the deplorable status of the justice system. It is recognized as a credible strategy to resolve open cases and expedite the criminal justice system. However, despite being conceptualized for many years, the Indian criminal justice system has yet to adopt plea bargaining. The researcher attempts to ascertain whether plea bargaining in India in its current form and structure is adequate to achieve these goals by weighing its advantages and disadvantages in the context of the Indian justice system.

Transterritoriality as a theory to hold corporations accountable for human rights violations: the application of its principles in Vedanta and Nevsun cases

This paper examines the basis for transterritoriality as a theory to hold corporations accountable for human rights violations and attempts to its application in two Business and Human Rights leading decisions: Vedanta Resources Plc and Konkola Copper Mines Plc v. Lungowe and Ors. [2019] UKSC 20 and Nevsun Resources Ltd. v. Araya, 2020 SCC 5. By the analysis of both judgements, issued by two Supreme Courts under the common law regime, the present work aims to prove that, in order to hold corporations accountable for human rights violations, national judges can apply private international law, public international law and international human rights law in an heterarchical and transversal manner to ensure a genuine dialogue between national jurisdictions and international courts under the application of the main principles and rules of international law. Qualitative and deductive methods used were based on interdisciplinary research and primary and secondary business and human rights sources were consulted to develop the proposed theory and case analysis.

Modern Approach to the Doctrine of Vicarious Liability

Vicarious liability is a species of torts that consists in fixing an employer with liability for the tort committed by his employee while the latter is in the course of his employment. The mechanics of vicarious liability may be illustrated thus; where ‘A’ employs or engages ‘B’ to work in ‘A’s vineyard, and ‘B’ in so doing intentionally or negligently causes injury to ‘C’. ‘A’ will be liable to ‘C’ in damages for the injury inflicted by ‘B’ upon ‘C' while working for ‘A’; provided that ‘B’ would have been otherwise liable. Based on social justice and of universal acceptation, more so in common law regimes, it is adapted to the specific needs and peculiar circumstances of each jurisdiction, so that even within the same jurisdiction, though the core of the doctrine may remain unchanged, specific facts and circumstances may necessitate a variation in the interpretation of its elements by the courts, to broaden or limit liability, whichever is desirable in the circumstances. Thus, it is the need to enquire into the complexities of this legal phenomenon, respecting how it has developed, what stage it has reached, and whether it requires significant change (in Nigeria) as well as to demystify the various hypothesis inherent in the operation of the doctrine that forms the crux of this work. Finally, this work concludes that the modern approach to vicarious liability is expansive and progressive and leans towards ensuring adequate compensation to victims of torts committed by employees in the course of their employment. It recommends a broader or wider approach to the doctrine in Nigeria.

Challenges Faced by Minority Shareholders in Commercial Companies in Cameroon: A Legal Analysis

The protection of minority shareholders in Cameroon is an ancient weakness recognized of plaguing the Cameroon commercial scene from the existence of the concept itself. The situation under English law was regulated by the received English law under the Common law regime. This application was by virtue of section 11 of the Southern Cameroon High Court Law (SCHCL) of 1955. What upheld in Nigeria was hitherto applied in the then West Cameroon since it was administered as an integral part of Nigeria. In French Cameroon, the received business laws from France were applicable. These laws were relevant within the territory until later appealed with the coming of the Organisation for the Harmonisation of Business Laws in Africa known by its French acronym OHADA. Those earlier laws accorded very little attention to protection of the minority shareholders in commercial companies. That was due to slow commercial development at that moment. The ensuing results of this research reveals that, the raison d’etre of low performance of some companies in Cameroon, is due to the fact that, there has been inadequate measures as well as ineffective Implementation of the laws regulating the protection of minority shareholders owing to the fact that there exist several challenges and difficulties in the Implementation of these laws. The challenges faced by the minority have worsened because even the protection provided by the laws is difficult to implement and at times very expensive to undertake, reducing the shareholders’ proprietary rights. In all these, this paper has proffered recommendations that ameliorate the conditions of minority shareholders in commercial companies if taken into consideration.

Self-Dealing, Corporate Opportunities and the Duty of Loyalty - A US, UK and EU Comparative Perspective

The paper offers a comparative perspective on the duty of loyalty – encompassing both rules that govern self-dealing and corporate opportunity transactions. It compares the evolution of these two sets of rules in several European jurisdictions and in US Delaware law. The paper begins by comparing the approach to regulating self-dealing and related party transactions under both common law (namely the US and UK) and civil law regimes (focusing on continental Europe). It then turns to the legal development of corporate opportunity rules, and contrasts the approach to corporate opportunities under US law to the less-developed jurisprudence on corporate opportunities in civil law jurisdictions. Corradi and Helleringer note tensions between the evolution of the law governing self-dealing transactions at the European level, and the lack of harmonization on rules addressing corporate opportunities and continuing divergences in corporate opportunities doctrine across EU jurisdictions. They observe a relaxation of the duty of loyalty in US Delaware law, while there is an asymmetric evolution of its two components, self-dealing and corporate opportunities, in the European context. On the one hand, self-dealing rules have existed in European corporate laws for a long time and have been substantially relaxed in Europe in recent times as they have in the US. On the other hand, corporate opportunities rules have been introduced in most European jurisdictions only throughout the last two decades – without an express possibility of a waiver such as the one granted by DGCL s. 122(17). The convergence of self-dealing rules may have been facilitated by the harmonization of EU financial market law, which in turn has not affected corporate opportunities rules. Economic agency theory provides a rationale for a hypothetical convergence of self-dealing and corporate opportunities rules, based on their economic function.

Peeping Into The Intersection: A Legal And Extrapolative Analysis Of Crime & Insanity In Dennis Lehane’s Shutter Island- A Review Of Literature

It has been the order of criminal law in all its manifestations that a person at the age of discretion is presumed to be sane for her conduct, unless the defence proves contrary to it. A bill of indictment and an order of trial, therefore, necessitates acknowledgement of this order. And the same holds true for the excusatory defence of Insanity, surrounding different criminal regimes across the world. The statement then rightly holds, that “The insanity defense exists in criminal law not to identify the mentally ill, but rather to determine who among the mentally ill should be held criminally responsible for their conduct.” Since the regime of Edward III, insanity as a defence has been subjected to chronic controversies and dissent. Legislators and Judicial structures across the world have found it immensely difficult to define what actually counts as ‘insane’ to absolve a person of all his liabilities. In an attempt to look at a curious case and find the applications of the law that stands both in common law regime as well as in India today, this literature review is undertaken. Whether insanity as a defence, provides the comprehensive space for accommodation is the question one must ask, in continuance of such a regime, while it goes on to invoke extraordinary interest and triggers the old debate on the essentiality of the defence itself in criminal law. To check the authority of law and the defences it permits, a critical analysis and to find in true sense the dimensions of ‘justice’ in criminal jurisprudence, is called for. This review of literature attempts to carry out the same. Theoretical approaches intermingle in such an attempt and this review attempts to capture those holistic areas with equal essentiality while applicating and finding the right fit of deal for present and future considerations in a case of insanity, that is not ordinary, but instead, lies on the threshold of the sane and insane, in the Dennis Lehane’s crime genre genius.

Comparative Analysis of Statutory Intervention on Vicarious Liability Under Nigerian and English Laws

According to Malemi (2008), vicarious liability is any situation where one person is liable for the conduct, or tort of another person, because of a relationship existing between them and the wrongdoer, including an employer - employee relationship. It is a species of torts that consists in fixing an employer with liability for the tort committed by his employee while the latter is in the course of his employment. Based on social justice and of universal acceptation, more so under common law regimes, it is nevertheless adapted to the specific needs and peculiar circumstances of each jurisdiction. Can governments be held vicariously liable for damage caused by protesters or rioters? Can employers deduct from the wages/salaries of their employees as indemnity for losses suffered vicariously? If yes, can they deduct above the employees' minimum wage? Though vicarious liability is of common law origin and thus generally based on case law, in recent times, statutes have continued to make in-roads in shaping the operation and/or application of the doctrine both in Nigeria and England. In the main, unlike in England where the modern approach to vicarious liability is progressive and expansive, the Nigerian regime appears to be restrictive and narrow, being inclined to “classical vicarious liability.” It is recommended that judicial functions/activism and legislative actions in Nigeria should be geared towards a progressive interpretation of vicarious liability to bring Nigerian jurisprudence up to speed with modern legal development. After all, the essence of vicarious liability is to ensure that no victims of torts committed by employees in the course of their employment should be left without prompt and adequate compensation. Therefore, since employers are financially in a better position to ensure such compensation, to that extent, they should be made to bear the burden of vicarious liability.

Shari’a Law and Its Impact on the Development of Muslim and Non-Muslim Business Relations in the United Arab Emirates

Abstract The United Arab Emirates (UAE) is situated near the Persian Gulf in the North Eastern part of the Arabian Peninsula. Established in 1971 by the late Sheikh Zayed Al Nahyan, the UAE forms a federation of seven Emirates consisting of Abu Dhabi, Dubai, Sharjah, Ajman, Umm Al-Quwain, Ras Al Khaimah (The Emirate of Ras Al Khaimah had officially joined the federation on the 11th of February 1972.), and Fujairah. Because of its diversity and cosmopolitan nature, the country has always been a crossroad and prime location for people and trade. As Islam and Islamic principles have influenced Gulf societies in the very core of its existence, the Islamic way of conduct in trade relations and dispute resolutions are an element of paramount significance. This Article explores the role of Shari’a Law and its impact on the economic development of Muslim and non-Muslim business relations in the UAE and in particular in the Emirate of Dubai. The law and development from an Islamic perspective introduces a new vision on the theories of law and development by addressing the influence of Shari’a Law in economic development. In international trade relations and dispute resolution mechanisms such as formal contract enforcements in the Dubai International Finance Centre (DIFC) and the Dubai International Arbitration Centre (DIAC) the plurality of laws leads to the adoption of Shari’a Law over the Civil and Common Law regimes.

The new poor person's bankruptcy: Comparative perspectives

AbstractA significant policy issue in personal insolvency concerns the debtor with little income and few assets who may be unable to afford bankruptcy in those jurisdictions which require payment to access the individual bankruptcy system. The challenge of addressing the situation of these debtors is one experienced both by long standing personal insolvency systems and newer system in emerging markets. This article introduces a special issue of the International Insolvency Review which considers the responses of several common law, civil law and mixed regimes to this policy topic. The article discusses the background to the English Debt Relief Order enacted in 2009 as a procedure for low‐income debtors, outlines salient issues raised by its implementation and discusses research themes related to the existence of the “No‐Income‐No Asset” debtor, including the structure and financing of the bankruptcy system, the contribution of NINA procedures to access to justice, the role of intermediaries in the bankruptcy system and the political economy of bankruptcy reform.

Jurisdiction Clauses in New Zealand Law

The Trans-Tasman Proceedings Acts 2010, mirror legislation in New Zealand and Australia, regulate the allocation of jurisdiction in trans-Tasman civil proceedings. The legislation includes provisions dealing with the effects of jurisdiction clauses. This article considers the treatment of jurisdiction clauses under the statutory regime and the common law regime which provides for the effect of jurisdiction clauses that are outside the scope of the legislation, how these regimes differ, and their relative strengths and weaknesses.

Reasoning about Tendency: What Does Hughes v The Queen Really Tell Us?

Patterns of illicit sexual misconduct by celebrities and institutional carers have been the subject of constant publicity in recent times. These episodes have often led to calls for reform of the law relating to the admission of prior conduct and convictions as evidence of criminal offences. The case of the Hey Dad..! star, Robert Hughes, triggered a High Court appeal on the subject aimed at resolving legal controversies in this area, but the High Court’s decision was regarded as insufficient by the recently completed Royal Commission Into Institutional Responses to Child Sexual Abuse, which recommended its own reform. This article argues that the problems lie in factual reasoning rather than legal rule-making. It explores the factual reasoning underlying decisions of admissibility of tendency evidence to try to shed light on issues of probative value not only under the Uniform Evidence Acts but under any legislative or common law regime.

Comment Letter of Professors John D. Morley and Robert H. Sitkoff on the Office of the Comptroller of the Currency's Advance Notice of Proposed Rulemaking on the Definition of 'Fiduciary Capacity' Regarding 'Directed Trusts'

In April 2019, the Office of the Comptroller of the Currency (OCC) issued an Advance Notice of Proposed Rulemaking (ANPR) on the definition of capacity regarding trusts. The ANPR references in particular the Uniform Directed Trust Act (UDTA) (Unif. Law Comm’n 2017). We served as the Reporter (Morley) and Chair (Sitkoff) of the drafting committee for the UDTA. Following the UDTA, we use the term “directed trust” to refer to a trust in which the terms of the trust grant a person other than a trustee a power over some aspect of the trust’s administration. As the prefatory note to the UDTA explains, “[t]here is no consistent vocabulary to describe the person other than a trustee that holds a power in a directed trust. Several terms are common in practice, including ‘trust protector,’ ‘trust adviser,’ and ‘trust director.’” The same is true for the trustee in a directed trust, who may be “sometimes called an ‘administrative trustee’ or ‘directed trustee.’” Following the UDTA, we will refer to a trustee in a directed trust as a “directed trustee,” a person who is not a trustee with a power over the administration of the trust as a “trust director,” and the power that a trust director holds over the administration of the trust as a “power of direction.” The hard question of law and policy raised by the proliferation of directed trusts is how to address the many complications created by giving a power of direction to a trust director, including in particular how to allocate fiduciary responsibility among a trust director and a directed trustee. The patchwork of modern state directed trust statutes, which to varying degrees has displaced the older but more consistent common law regime, has given rise to uncertainty that, in the words of the ANPR, may “make it difficult for institutions to assess and manage litigation risk and to understand OCC expectations for managing these accounts in a safe and sound manner.” We are in agreement that additional OCC guidance on directed trusts could be helpful. However, we have six concerns about the way the ANPR frames the issue, which we elaborate in this comment letter.

How Do the Main EU Border and Asylum Agencies, Frontex and EASO, Establish, Develop and Pursue their Relations with Third Countries?

With the current “migration crisis”, the Area of Freedom, Security and Justice (AFSJ) has gotten considerable public attention due to its role in border control, immigration and asylum. The EU has used its shared competence extensively, creating a common visa and immigration law regime, a common European asylum system, and a border control regime. However, this “highly complex matrix of laws and policies” is seen by many as a fragmented and mal- implemented common framework. Besides the evolving normative body, the AFSJ has experienced institutional change with the creation of EU specialized agencies, which now play a significant role in the implementation and development of AFSJ policies. Since migration was originally an internal policy, the law doesn’t provide for an express general external competence. However, as external action is necessary to achieve the treaty objectives, it has been operationalized in a series of action plans and strategy documents. Some important ones are the 2011 Global Approach to Migration and Mobility and the 2015 European Agenda on Migration. The internal and external dimensions in the AFSJ are closely linked. Migratory pressure has called for a stronger EU response and EU external action in migration and asylum has increased accordingly. While much of the action is taken by the Commission, the High Representative and Vice-President, EEAS and Member States, this paper concentrates on the role of the main EU border and asylum agencies, to understand how Frontex and EASO, establish, develop and pursue their relations with Third Countries.

Prawo – osoba – śmierć. Część II: Teoria Daniela Sperlinga a polski system prawny

This article is divided into two parts. In the first part, which was published in 2018, we presented arguments in support of the concept of posthumous interests. Posthumous interests are understood as events that constitute a benefit or a harm to the deceased person, who no longer exists. A right is the interest of a person, which is recognized and protected by law. In the second part, we examine the possibility of applying the theory of posthumous interests in the Polish legal system. We address the following issues: medical confidentiality, protection of medical data after the death of a patient, author’s moral rights, protection of the memory of the deceased, the law on orders and decorations, and the legal status of human corpses. The theoretical background for this article was the book by Daniel Sperling Posthumous Interest, in which the author outlined the problem in point from the perspective of the common law regime.

Opening the black box of the common-law legal regime: Contrasts in the development of corporate law in Britain and the United States in the late nineteenth and early twentieth centuries

ABSTRACTThe general incorporation laws enacted in Britain and the US in the nineteenth century had strikingly different structures. Whereas British law was laissez-faire in spirit, the American statutes were highly regulatory. The literature on the efficiency of the common law might lead one to expect that these statutory differences would become less salient over time, as businesses litigated their disputes and courts in the two countries came to similar resolutions. However, the authors find that the case law tended, if anything, to accentuate the differences in the statutes. British courts typically enforced whatever arrangements shareholders wrote into their articles of association or otherwise contracted among themselves, so long as the agreements were not contrary to law. In the US, by contrast, courts generally refused to enforce shareholders’ agreements that deviated in any significant way from statutory norms. US law would not really begin to converge on British law until the second half of the twentieth century, when states began to enact more flexible general incorporation statutes. By that time, British company law was also becoming more regulatory.

The Nature of Parenthood

In the wake of Obergefell v. Hodges, courts and legislatures claim in principle to have repudiated the privileging of different-sex over same-sex couples and men over women in the legal regulation of the family. But as struggles over assisted reproductive technologies (ART) demonstrate, in the law of parental recognition such privileging remains. Those who break from traditional norms of gender and sexuality — women who separate motherhood from biological ties (for instance, through surrogacy), and women and men who form families with a same-sex partner — often find their parent-child relationships discounted. This Article explores what it means to fully vindicate gender and sexual-orientation equality in the law of parental recognition. It does so by situating the treatment of families formed through ART within a longer history of parentage. Inequalities that persist in contemporary law are traceable to earlier eras. In initially defining parentage through marriage, the common law embedded parenthood within a gender-hierarchical, heterosexual order. Eventually, courts and legislatures repudiated the common-law regime and protected biological parent-child relationships formed outside marriage. While this effort to derive parental recognition from biological connection was animated by egalitarian impulses, it too operated within a gender-differentiated, heterosexual paradigm. Today, the law increasingly accommodates families formed through ART, and, in doing so, recognizes parents on not only biological but also social grounds. Yet, as courts and legislatures approach the parental claims of women and same-sex couples within existing frameworks organized around marital and biological relationships, they reproduce some of the very gender- and sexuality-based asymmetries embedded in those frameworks. With biological connection continuing to anchor nonmarital parenthood, unmarried gays and lesbians face barriers to parental recognition. With the gender-differentiated, heterosexual family continuing to structure marital parenthood, the law organizes the legal family around a biological mother. Against this backdrop, nonbiological mothers in different-sex couples, as well as nonbiological fathers in same-sex couples, struggle for parental recognition. To protect the parental interests of women and of gays and lesbians, this Article urges greater emphasis on parenthood’s social dimensions. Of course, as our common law origins demonstrate, the law has long recognized parental relationships on social and not simply biological grounds. But today, commitments to equality require reorienting family law in ways that ground parental recognition more fully and evenhandedly in social contributions. While this Article focuses primarily on reform of family law at the state level, it also contemplates eventual constitutional oversight.

Legal systems and the financing of working capital

This study builds on the existing law and finance literature by analyzing the impact of legal systems on both the level and the sourcing of working capital. We find that stronger rule of law results in lower levels of working capital, less sourcing from retained earnings, and more sourcing from banks. Firms in common-law regimes have lower levels of working capital and finance it from banks, while firms from civil-law environments rely on retained earnings and other financial institutions for sourcing. The impact of legal origin on both the level and the sourcing of working capital is mixed.

LENIENCY, COLLUSION, CORRUPTION, AND WHISTLEBLOWING

Leniency policies offering immunity to the first cartel member that blows the whistle and self-reports to the antitrust authority have become the main instrument in the fight against price-fixing conspiracies around the world. In public procurement markets, however, bid-rigging schemes are often accompanied by corruption of public officials. In the absence of coordinated forms of leniency (or rewards) for unveiling corruption, a policy offering immunity from antitrust sanctions may not be sufficient to encourage wrongdoers to blow the whistle, as the leniency recipient will then be exposed to the risk of conviction for corruption. This article assesses the extent of this problem by describing and discussing the antitrust and anti-corruption provisions present in a few selected countries, under both common law and civil law regimes. For each of these countries, we try to evaluate whether the legal system presents any solution to limiting the risk that legal provisions against corruption undermine the effectiveness of leniency programs against bid rigging in public procurement. Legal harmonization, coordination, and co-operation on procedural and substantive issues, and inter- and intra-jurisdictions, seem essential to solve this problem. Given the size of public procurement markets and their propensity for cartelization, specific improvements in legislation appear necessary in all the countries considered. Explicitly introducing leniency policies for corruption, as has been done recently in Brazil and Mexico and is being experimented in the United States, is only a first step. The antitrust experience has taught us that to achieve their goals of inducing whistleblowing, these policies must be carefully designed and sufficiently generous with (only) the first reporting party, they should not be discretional, they must be backed by robust sanctions, and they must be consistently implemented. Hence, the road ahead appears a long one. To increase the effectiveness of leniency in multiple offense cases, we suggest, besides extending automatic leniency to individual criminal sanctions, the creation of a “one-stop point” enabling firms and individuals to report different crimes simultaneously and receive leniency for all of them at once if they are entitled to it. As long as individual criminal charges are not covered by a coordinated and nondiscretional leniency program, there is little hope that these provisions will induce any improvement in the fight against corrupting cartels. A more effective way to fight such cartels may then be offering Qui Tam rewards to nonaccomplice whistleblowers, as is already done with apparent success by several law enforcement agencies in the United States.