Common Law World Research Articles

Strike-out Appeals, Unjust Enrichment, and Discoverability: Insights from Kenya

This note analyses a judgment of the Kenyan Court of Appeal that implicates issues that have been on the move in private law jurisprudence around the common law world. These issues are: (1) the interlocutory/final ruling distinction that appellate courts in Australia, Canada, Ghana, India, New Zealand, and elsewhere continue to grapple with; (2) when courts can reframe pleadings for breach of contract as claims in unjust enrichment, an issue recently considered by the Privy Council (2020); (3) the essentiality of ‘mistake’ for the purposes of benefitting from an extended limitation period – the subject of continued contention among unjust enrichment scholars; and (4) when mistakes are reasonably discoverable for limitation purposes, which has been the subject of major litigation before the United Kingdom Supreme Court (2020) and the Supreme Court of Canada (2021). The resolution of these issues in Alba Petroleum Ltd v Total Marketing Kenya Ltd could have been usefully informed by – and can inform – comparative common law jurisprudence.

Friendly judicial challenges from the North: The decision of the Canada Supreme Court in Nevsun Resources Ltd v Araya

The recent decision of the Supreme Court of Canada in Nevsun Resources Ltd v Araya and others (International Human Rights Program and others intervening) is worthy of the attention of the common law world. The case interrogated, albeit in relation to the preliminary issue of the striking out of a claim, significant aspects of the relationship between domestic law and customary international law. The doctrine of ‘act of state’ and the nature and extent of the incorporated norms of international law were examined in rich detail and the differing opinions by the Justices present important albeit conflicting guidance for their foreign counterparts. Other apex courts will have to make what they will of the Nevsun decision that it is possible that local corporations can be held liable in domestic law for breach of customary international norms in respect of their acts or those of their subsidiaries in foreign countries.

Natural justice and the Court’s supervisory jurisdiction

Abstract The Court’s supervisory jurisdiction over the administration of trusts is a cornerstone of the law and well known to practitioners. However, although there are countless decided cases in which Courts around the common law world have made decisions and exercised powers that have their footing in the supervisory jurisdiction, and the topic is addressed in detail in Daniel Clarry’s excellent “The Supervisory Jurisdiction over Trust Administration”,1 there is surprisingly little consideration in the authorities of the juridical foundation of the jurisdiction and the ways in which the role of the Court differs from that played in ordinary adversarial litigation. One point that has not, until recently, been considered in the decided cases is the extent to which rules of natural justice apply when the Court exercises its supervisory jurisdiction and in particular whether a trustee has a right to be heard prior to being removed. The purpose of this article is to consider this issue and the Court of Appeal of Bermuda’s recent decision in St. John’s Trust Company (PVT) Ltd v Medlands (PTC) Ltd.2

Beyond the Life Sentence – A Children’s Rights Lens on Sentencing for Murder

Abstract Children around the world who have been found responsible for murder continue to be sentenced to indeterminate or long periods of detention. This is in contravention of children’s rights standards which urge a ban on the life sentence and require that detention is used only for the shortest appropriate period of time. Nonetheless, the public and victims of crime have a legitimate interest in the protection of public safety and appropriate accountability for serious offending. Further, there is little guidance on what a rights compliant approach in such cases might involve. This work builds on previous studies of how children are sentenced for murder across the common law world and extends the analysis to a selection of European civil law jurisdictions. It explores and applies recent updated guidance from the Committee on the Rights of the Child and seeks to develop a framework for a children’s rights and human rights compliant approach to such cases.

What Are Grand Chambers for?

AbstractIn multi-panelled higher jurisdictions, a larger, extended formation of judges tends to be established within the court. It bears various names: the grand chamber, the extended chamber, the expanded composition, the reunion of several chambers, a court sitting en banc, an extended section or a division of a court. In larger but not too large jurisdictions, the same role is adopted by the plenary. For ease of reference, I shall refer to all such extended judicial formations with the generic name ‘grand chamber’.To bear the same name does not necessarily mean to perform the same function. As a Czech lawyer, I have always intuitively assumed that the role of such a body within an apex court is to unify the case law. In the Czech Republic, as well as in a number of other supreme continental jurisdictions for that matter, there tends to be only one reason for the presence of a grand chamber within a supreme court: to unify the diverging lines of case law and to set a clear line of precedent. However, that has never really been the job description, least of all the practice, of the Grand Chamber of the Court of Justice of the European Union (‘Court’). This begs the question: what may then be other structural reasons for the existence of such a body within an apex jurisdiction? What is the specific role, function, and ensuing justification for the Grand Chamber of the Court?This article offers some personal reflections on that question. It is structured as follows: it begins with a short comparative overview of some of the grand chambers within European (national) courts, overseas in the common law world, as well as at the European Court of Human Rights, in order to tease out the functional rationale for various types of extended judicial compositions within those systems (Part I). Next, two types of such functional justifications for grand chambers in the form of ideal models are identified (Part II). Finally, those justifications are then considered in light of the legislative design and the current practice of the Grand Chamber of the Court, before concluding with two modest suggestions (Part III).

Trusts and foundations move onshore in the Gulf

Abstract Commencing in the 7th-century CE, the notion developed in Islamic jurisprudence that property, although legally owned by a person, might nonetheless be subjected to enforceable obligations that it be utilised for the benefit of specific purposes (usually religious) or, later, for individuals, be they the recipients of charity or family members. Such property was said to be in detention (“waqf”). Later, similar legal concepts developed in the common law world (in the form of trusts) and the civil law world (in the form of foundations). In the Gulf Co-operation Council (GCC) states (the Kingdom of Saudi Arabia, United Arab Emirates, Oman, Qatar, Bahrain and Kuwait), laws of the jurisdictions recognise these concepts to varying degrees—most completely in the United Arab Emirates, where common law trusts in the financial free zones, trusts in the civil law jurisdiction, foundations, a form of statutory waqf (the endowment) and awqaf (the plural of waqf), and the Court of Appeal of the Dubai International Financial Centre (“DIFC”) has recently reviewed the application of the DIFC’s Trust and Foundations Laws with the benefit of an opinion from Shari’a scholars as to the interaction of the DIFC’s legal structures with Shari’a. The article explores the development and interaction of these legal concepts, the role which they can play in the context of the region’s private wealth, and compares the various statutory regimes.

Protecting ‘injured female innocence’ or furthering ‘the rights of women?’ The sexual Slander of Women in New York and Victoria (1808–1887)

ABSTRACT By the end of the nineteenth century, reforms across the British common law world—often labelled ‘The Slander of Women Acts’—enabled women to sue more easily for sexual slander by removing the burden of proving economic loss, known as ‘special damage’. Sexual slander was a pressing and highly gendered issue. Women brought actions in the thousands seeking to vindicate their reputations when subject to slurs of prostitution, unchastity, fornication, or adultery. These cases spurred transnational debates about the status of white women in the transpacific New World and English law's failure to incorporate their interests and experiences. This article compares and connects reform efforts in New York with those in Victoria. It argues that whereas New York cases and legislators emphasised the need to ‘protect innocent females’ and employed racially coded language linking sexual morality with whiteness, Victorian judges and politicians framed sexual slander reform as an issue of women's rights.

Pojedini aspekti građanskopravnog položaja udatih žena u srednjovjekovnoj Engleskoj

The arrival of the Norman tribes in the territory of England inevitably meant the influence of the customs of these tribes on the formation of a new legal system, known as „common law”. Soon after, this system established the judicial precedent as the basic source of law, which made it significantly different from European continental legal systems. However, when it came to the position of women, the common law world was the same as the continental legal systems. It was the male world, as evidenced by the famous Blackstone’s thought that husband and wife are one, and that one is the husband. In the moment of marriage, the wife would lose her legal capacity, and her personality would be drowned in her husband’s power over her and her property. Considering many other restrictions on women’s rights that will be addressed in the paper, it is not surprising that widows enjoyed the best status in medieval England, mostly owing to the institute of dower. This injustice was corrected by the emergence of the justice system and especially the trust institute. This paper is dedicated to the stages of development of the rights of married women in medieval England from complete denial to their affirmation, and especially to the contribution of the institutions of equity law to that development.

Book review: Patrick Masiyakurima, Copyright Protection of Unpublished Works in the Common Law World (Hart Publishing, Oxford 2020) 240 pp.

Book review: Patrick Masiyakurima, Copyright Protection of Unpublished Works in the Common Law World (Hart Publishing, Oxford 2020) 240 pp.

The Criminal Law Syllabus and the Realities of Legal Practice in Hong Kong

Criminal law syllabi throughout the common law world, including in Hong Kong, primarily focus on homicide, other violent offences, sexual offences, and property offences – offences typically categorised as mala in se (evil in and of themselves). They do this largely for traditional reasons – because these are the crimes which the syllabus has always focused on. Yet this is not what criminal law practice really looks like, whether in the courtroom or in advising clients. This research study utilises data on crime prevalence in Hong Kong as well as a self-reporting survey of criminal law practitioners in an effort to more closely align the LLB/JD criminal law teaching syllabus with the present and future realities of legal practice in Hong Kong, at least in terms of the specific offences covered. The empirical findings suggest that legal educators in Hong Kong ought to consider adding drugs, driving, regulatory and ‘white collar’ offences to the criminal law syllabus, while removing homicide and sexual offences entirely. These new inclusions serve as sufficiently nuanced illustrations of the general principles of criminal liability, help students to develop a critical perspective towards crime and criminalisation, while being frequently encountered in local criminal practice.

Resulting trusts in the conflict of laws: an Australian perspective

The common law world continues to grapple with how to properly characterise equitable doctrines in private international law. There has been extensive criticism of the existing approach to characterisation and choice of law for equity which favours separately characterising equitable obligations and applying the lex fori. Within this broader discourse, a debate is beginning to emerge around issues involving both equitable obligations and immovable property. In this early debate, two schools of thought have developed with respect to the proper characterisation and choice of law for implied or resulting trusts over immovable property. The first approach, advanced primarily by the courts, characterises the trust as an equitable obligation governed by the lex fori. The second approach, primarily endorsed by commentators, characterises the trust as an issue of immovable property governed by the lex situs. This paper, upon evaluating the lex fori and the lex situs against the underlying objectives of choice of law, rejects both approaches as unfit for purpose. Instead, it advocates a new approach to the characterisation and choice of law for resulting trusts. This paper proposes that resulting trusts be governed by the proper law of the relationship. This conception would align with the approach taken to express trusts under the Hague Trusts Convention and most effectively provides for consistency and clarity while upholding the reasonable expectations of the parties.

Nature Versus the Common Law

This article recovers a debate, played out over the course of a century, in courts across the « common law world », over whether nature had normative force in water law. It explores areas of water law, such as the extent of public ownership in rivers and the effects of shifting watercourses on ownership, in which some courts, not without controversy, departed from the established rules of English law in order to make rules more appropriate, as they saw it, to the local environment.

Comparative Common Law

The common law is often referred to in the singular, as if “the common-law world” followed a single body of rules and principles. But this has long stopped being true, assuming it ever was. The common law has become a multiplicity of common laws, thereby bringing about the possibility of an exercise in comparison between legal systems historically rooted in English law: “comparative common law”. One principal stake of this exercise is to maintain, if not the unity of rules between those countries, at least that of a common sphere of dialogue between them.

Interpreting change through legal culture: the case of the Irish exclusionary rule

AbstractThe changes to the Irish exclusionary rule introduced by the judgment in People (DPP) v JC mark an important watershed in the Irish law of evidence and Irish legal culture more generally. The case relaxed the exclusionary rule established in People (DPP) v Kenny, one of the strictest in the common law world, by creating an exception based on ‘inadvertence’. This paper examines the decision through the lens of legal culture, drawing in particular on Lawrence Friedman's distinction between ‘internal’ and ‘external’ legal culture to help understand the factors contributing to the decision. The paper argues that Friedman's concept and, in particular, the dialectic between internal and external legal culture, holds much utility at a micro as well as macro level, in interrogating the cultural logics at work in judicial decision-making.

Lawyers in society: a celebration of the work of Philip Lewis and his legacy

ABSTRACT This paper begins by explaining Philip Lewis’s key contribution to the development of legal professions studies, culminating in the three volume comparative work Lawyers in Society to which he contributed and co-edited with Rick Abel [(1988a) Lawyers in Society: Vol I The Common Law World (Berkeley, University of California Press); (1988b) Lawyers in Society: Vol II The Civil Law World (Berkeley, University of California Press); (1989a) Lawyers in Society: Vol III Comparative Theories (Berkeley, University of California Press)]. We discuss how this project led to the establishment of the RCSL International Working Group for Comparative Studies of Legal Professions – http://rcsl.iscte.pt/rcsl_wg_professions.htm – and, thirty years later, inspired our current work: Lawyers in 21st Century Societies https://www.bloomsburyprofessional.com/uk/lawyers-in-21st-century-societies-9781509915156/. We outline the parameters of both studies, focusing particularly on their methodology, and summarise some findings from the current study. We conclude by acknowledging the enormous debt this owes to Philip Lewis.

Judicial Biography in the British Empire

This article adds to the biographic "turn" in legal studies. While there is a large body of scholarship examining judges in the United States and the United Kingdom, comparatively little is written on their legal counterparts in the common law world. What can judicial biographies offer for comparative law? Do these studies generate useful information about the movement of law? What can be gained by a better awareness of the lives of those at the top of the colonial legal profession? This article shows that within the common law world, judges, like those in the United States and the United Kingdom, were central figures in the administration of justice and in the colonial socio-political elite. Biographical studies are even more important in understanding the way law moved through the British Empire because the backgrounds of these figures shaped their ability to deal with new social groups and diverse societies, and to create pluralistic solutions to legal problems. As colonial judges had to be geographically mobile to move through the British Empire, they possessed transnational careers and accumulated experiences from different common law based legal systems. Through their role as colonial adjudicators, judges influenced the world around them, in part, due to their experiences and socialization. We argue that judicial biographies provide a new way to see the way law moved across colonial and imperial jurisdictions.

Book Review: <i>Judicial Review of Administrative Action Across the Common Law World: Origins and Adaptation</i> by Swati Jhaveri and Michael Ramsden, eds

Book Review: <i>Judicial Review of Administrative Action Across the Common Law World: Origins and Adaptation</i> by Swati Jhaveri and Michael Ramsden, eds

Unauthorized medical intervention and informed consent in the common law of Canada prior to the Supreme Court’s decision of Reibl v. Hughes (1899–1980)

The given article deals with the Canadian legacy of civil actions on negligence and technical assault or battery involving an unauthorizedmedical interference to plaintiff. In modern doctrine and case-law, the given concept is named “informed consent”, upon whichthe patient is not a mere subject of medical treatment, but has a substantial set of patient rights, involving the informational ones, whichincludes his right to be informed on further invasive treatment and thus to be able to assent or decline it. The doctrine of informed consent,arising from actions on unauthorized medical treatment in both common law and civil law jurisdictions, has a centuryfold historyin the jurisprudence. In the common-law world, it was bred in the end of the 19th century primarily in the jurisprudence of Americancourts, but still has its distinct peculiarities in the common law of Canada throughout the twentieth century. The span on the researchedjurisprudence embraces the time period of 1899 (judgment of Parnell, which was the first case to deal with the subject) to 1980 (caseof Reibl v. Hughes), where the Canadian Supreme Court has firmly recognized the principle of informed consent in the acting commonlaw. In the 1990s, the principles of informed consent had been codified. The author has investigated on the evolvement of the conceptof patient’s right to autonomy in the state from the very beginning to the judgment of Reibl v. Hughes in 1980, and has researched theroots of the “right to autonomy” as an extension of the right to privacy, which has penumbrally existed in Canadian jurisprudence forover a century, despite having been recognized as such relatively recently, despite an existence of various early case-law legacy. Apartfrom the abovesaid, the author aimed to define the authorities used by Canadian courts in the earlier cases dealing with unconsentedsurgery, which involves judgments from other jurisdictions as well as professional legal and medical textbooks.

You Name It: On the Cross-Border Regulation of Names

Abstract Is your name “yours”? Are you free to choose a name for yourself? Does a name withstand border crossing and even the acquisition of new citizenships? In the common law world, the unequivocal answer is yes. However, in civil law, this answer is not so clear. While the global tendency over the last few decades has been towards relaxing the norms governing names, old traditions die hard, and in some cases now re-emerge in other parts of the world. In an ever more globalized world, given widespread immigration, refugees, and people with dual (or even multiple) citizenship, the different national attitudes towards names and the lack of proper cross-border regulation of names is becoming a relevant and pressing question. This Article maps out and conceptualizes the challenge of names by demonstrating the different approaches toward names and suggesting possible cross-border regulation (i.e., choice-of-law rules) that would address this issue for the benefit of the individuals and countries involved.

The Future of Wednesbury Unreasonableness in the Substantive Review of Administrative Discretion: A Hong Kong Perspective

Abstract The continued use of Wednesbury unreasonableness in the substantive review of administrative discretion has received considerable scholarly attention throughout the common law world. Recent local developments in proportionality review bring this debate to the fore in Hong Kong. It has been argued that the Court of Final Appeal’s articulation of a sliding scale of proportionality review has strengthened the case for the formal abolition of Wednesbury unreasonableness, on the basis that proportionality has now embraced an identical unreasonableness standard. This article challenges the claim that Wednesbury is now a redundant concept in Hong Kong public law. Descriptively, there remain material differences between Wednesbury and proportionality, even under its modified deferential form. Normatively, too, Wednesbury remains justified as a means to recognize the limited general basis in which common law substantive review can occur. A conflation of Wednesbury unreasonableness and proportionality can have the unintended consequence of diluting constitutional protections. Furthermore, the emergence of a sliding scale of Wednesbury review in Hong Kong reduces, rather than increases, pressure for its abolition in favour of proportionality.