Doctrine Of Restraint Research Articles

Application of the Doctrine of Restraint of Trade in Employment Contracts: A Dichotomy between English Law and Indian/ Bangladeshi Law and Its Potential in Outsourcing Contracts

The doctrine of restraint is no more confined to the entrenched words of the sections of the Contract Act, 1872. It has travelled beyond by encompassing the reasonableness doctrine within it. However, the development is still in its rudimentary state in context of Bangladesh as very few cases are dealt with by the Bangladeshi Courts on this issue. As a result, we do not have enough legal premises to make an in-depth analysis of the applicability of the doctrine in our perspective. However, the Grameenphone Ltd vs Chairman case in the First Labor Court has opened a new dimension on this issue through anatomizing an outsourcing contract. It has provoked us to think again of the application of restraint of trade doctrine in employment contracts. But before delving into the matter with a research methodology, we need to know more about it since the texts on the issue of outsourcing are still nascent. The aim of the article is to introduce to the reader the developments of the doctrine of restraint of trade and contextualize it in Bangladesh’s context.
 Dhaka University Law Journal, Vol. 33(1), 2023 P.49-66

Restrictive covenants, use of land, and the restraint of trade doctrine

The common law doctrine of restraint of trade has a well-established presence in relation to contracts of employment and contracts for the sale of a business. Beyond those specific areas it reared its head from time to time, but the legal test for its applicability was not a model of clarity. Where the covenantor ceded a pre-existing freedom to engage in commercial activity, the decision of the House of Lords in Esso Petroleum Co Ltd v Harper’s Garage (Stourport) Ltd [1968] AC 269 brought it within the doctrine, but the recent decision of the Supreme Court in Peninsula Securities Ltd v Dunnes Stores (Bangor) Ltd [2020] UKSC 36, on appeal from the Northern Ireland Court of Appeal [2018] NICA 7, has discarded that test in favour of one based on the structure of a trading society. Peninsula Securities was a case concerned with the applicability of the restraint of trade doctrine to covenants affecting the ability of a landowner and its successors in title to use the land in a way that potentially competed with the business of an adjoining occupier. The decision that the restraint of trade doctrine was not engaged in these circumstances was set against the power of the Lands Tribunal to modify or extinguish covenants affecting land under article 5 of the Property (NI) Order 1978.

The battle of the tests: a Pyrrhic victory? A case note on the Supreme Court judgment in Peninsula Securities Ltd v. Dunnes Stores (Bangor) Ltd

In Peninsula Securities, the Supreme Court held that a restrictive covenant, granted in a lease to an anchor tenant of a shopping centre not to allow any retail unit in the centre to be leased to competing shops, does not engage the doctrine of restraint of trade. The question of its enforceability therefore hinges on whether the relevant covenant breaches competition law, and specifically whether it is anti-competitive by object or effect. This relatively straightforward conclusion of the Supreme Court in Peninsula Securities masks over 50 years of conflicting judgments and uncertainty in the area. Prior to Peninsula Securities, the majority decision of the House of Lords in Esso Petroleum v Harper's Garage gave rise to a ‘battle of the tests’: the majority opined that the doctrine of restraint of trade would only be engaged if the covenantor contracts to give up a freedom they already had (what has come to be known as the ‘pre-existing freedom test’; Lord Wilberforce, dissenting, formulated what came to be known as the ‘trading society test’ which is basically a rule of reason test. In Peninsula Securities, the Supreme Court clearly sided with the latter, but in reality neither test is likely to be considered in future challenges to an anchor tenancy restrictive covenant – the key question is whether it is anti-competitive, something which only the relevant facts of the case will determine.

Cinema on Trial: Doctrine of Prior Restraint in Censorship

This paper sets to address the legal question of how the Censor Board can exercise such power and whether it represents the mood and approach of the government towards films and art forms in general, in India. What history tells us is quite contrary to what we're witnessing today. Our Constitution makers, while debating on the topic of freedom of speech and expression invoked libertarian philosophers like Isaiah Berlin and John Stuart Mill, and their philosophy did in fact, find its way into the said provision. The present scenario however, is one where we have departed from these libertarian ideas. What the censor board is doing today is trying to choke the marketplace of ideas at its source, which Gautam Bhatia calls 'prior restraint' in his new book Offend, Shock or Disturb. The paper tries to establish how the law of censorship, whenever rigid, has only suppressed thought and dissent, instead of allowing progressive and rational thinking. This is substantiated by analysing various case laws.

IIm Still Dancing: The Continued Efficacy of First Amendment Precedent and Values for New-School Regulation

This response essay reflects on the meaning of two foundational First Amendment decisions: New York Times Co. v. Sullivan — characterized by Harry Kalven, Jr., as “an occasion for dancing in the streets”— which imposed limits on public officials’ recovery for defamation, and New York Times Co. v. United States, which reaffirmed the central First Amendment principle against prior restraints. Professor Jack Balkin characterizes these decisions as responses to “old-school speech regulation . . . [in which] the state had used penalties and injunctions directed at speakers and publishers in order to control and discipline their speech.” But, Balkin observes, changes in the infrastructure and technology of free expression and in the regulation of speech have significantly weakened the impact of these decisions. He claims that “new-school” speech regulation — government exercise of informal control over and co-optation of privately-owned digital infrastructure providers — is not meaningfully subject to these precedents. Balkin expresses particular concern about the inefficacy of the prior restraint doctrine in circumstances of collateral censorship, in which the government encourages private intermediaries like ISPs to censor the speech of others. Such instances of collateral censorship, he worries, will affect an end run around the traditional procedural safeguards imposed on prior restraints. Balkin also expresses concern about the government’s co-optation of private infrastructure providers, through which the government informally pressures these entities to restrict users’ privacy and freedom of expression. In this response essay, I contend first that the prior restraint doctrine reinforced by the Court in New York Times Co. v. United States is still effective in holding in check new-school regulation — at least outside the national security context — as evidenced by cases such as Center for Democracy and Technology v. Pappert. Second, I argue, Balkin’s concerns about government co-optation of private infrastructure providers should be partially allayed by steps these providers have taken to expose efforts by the government to co-opt them and to commit themselves to upholding First Amendment principles, and to transparency and visibility in responding to government requests to censor content or reveal user information. In sum, the prior restraint doctrine — at least outside of the national security context — is still effective in holding in check government efforts to restrict speech. And recent actions by the entities responsible for the Internet’s free speech infrastructure have trended toward transparency and against co-optation by the government. These developments give us reason to be optimistic about the continued relevance of First Amendment precedent and values in the era of new-school regulation.

Review: Jeremy Waldron’s Political Political Theory

This collection seeks to ground political theory in the study of institutions, particularly the constitutional relationship between different branches of government. It makes the case that ‘constitutionalism’ has become a thin doctrine of political restraint. Waldron wants to identify a fuller conceptual understanding of how the functions of government can be empowered and articulated. In doing so, he sets out a position that is distinct from both moralism and realism in contemporary political theory. I explore how well the later distinction holds up: how successfully does Waldron’s approach marry realist concerns with the rigour of analytical political theory? I also discuss the role it leaves for the history of political thought and whether it can deal with the populist strain in contemporary politics.

A renewed emphasis on the Charter’s distinction between rights and principles: Is a doctrine of judicial restraint more appropriate?

The article examines whether recent ECJ case law indicates a renewed emphasis on the distinction between rights and principles in the Charter of Fundamental Rights, with such emphasis reflecting the well-established but problematic dichotomy between civil and political rights and economic, social and cultural rights. An alternative approach to deciding Charter cases is suggested. Inspired by a "principle of limited and shared jurisdiction" in an integrated legal system, comprising EU law, national law and the European Convention on Human Rights (ECHR), it is suggested that the ECJ could also draw parallels with the "Margin of Appreciation" doctrine under the ECHR in formulating a doctrine of judicial restraint.

The Doctrine of Prior Restraint on Freedom of Speech and Publication

The Doctrine of Prior Restraint on Freedom of Speech and Publication

Who Violates The Principles of Political Liberalism?: Religion, Restraint, and the Decision to Reject Same-Sex Marriage

AbstractRecent debates in political theory have seen political liberals advocate and defend a doctrine of restraint, according to which citizens may not rely solely on religious reasons when supporting their favored public policies. This debate notwithstanding, very rarely have social scientists assessed the extent to which citizens actually violate this doctrine. This article evaluates the “political decision-making” model of political liberalism. Data from a nationally representative sample of U.S. adults are used to test this model for legalization of same-sex marriage. Our analyses show that while only a very small percentage of U.S. support this policy solely on the basis of their religious convictions, roughly a quarter oppose it for religious reasons alone. Furthermore, we find that higher levels of religious service attendance and importance of religious faith as well as affiliation with evangelical and black Protestantism significantly increase the likelihood of same-sex marriage opposition entirely on religious grounds.

The Defamation Injunction Meets the Prior Restraint Doctrine

In Near v. Minnesota, the Supreme Court added the injunction to executive licensing as a prior restraint. Although the Near court circumscribed the injunction as a prior restraint, it approved criminal sanctions and damages judgments. The prior restraint label resembles a death sentence. This article maintains that such massive retaliation is overkill. A judge’s injunction that forbids the defendant’s tort of defamation tests Near and prior restraint doctrine because defamation isn’t protected by the First Amendment. Arguing that the anti-defamation injunction has outgrown outright bans under the prior restraint rule and the equitable Maxim that “Equity will not enjoin defamation” turns out to be formidable. This article examines the Sullivan v. New York Times privileges in defamation, their tension between truth and falsity, and their limitations on compensatory and punitive damages. It tests the injunction against damages by examining several Equitable doctrines: the inadequacy prerequisite-irreparable injury rule, the injunction as preventive relief, the temporary restraining order, the preliminary injunction, the injunction bond, the juryless injunction trial, the task of drafting an injunction to avoids vagueness and over-breadth, the use of motions to modify-dissolve an injunction, and the declaratory judgment, and contempt, compensatory, coercive, or criminal, including the collateral bar rule. It weighs important prior restraint scholarship, including Professor Emerson’s and Professor Blasi’s. The administration of the prior restraint doctrines has expanded its operation beyond the policy reasons that gave it birth. This article concludes that the differences between damages and an injunction don’t warrant different treatment. In Balboa Island VillageInn v. Lemen, the California Supreme Court approved a targeted injunction that forbids a defendant from repeating proved defamation. Influential scholars beginning with Roscoe Pound and including more recently Professors Redish, Jeffries, Schauer, and Ardia have eroded the prior restraint doctrines’ reasoning and application. The procedure leading to an injunction can be augmented by requiring prior notice, adversary adjudication, and narrow drafting. A properly adjudicated and drafted injunction that specifically forbids defendant’s defamation will prevent harmful torts without threatening free-speech values. The article closes by asking for abolition of the Maxim and suspension or qualification of the prior restraint doctrine for defamation.

The Anti-Injunction Act and the Problem of Federal-State Jurisdictional Overlap

Ever since Congress decided in 1789 to confer jurisdiction on lower federal courts over matters that the state courts could also hear, the nation has faced the problem of how to allocate decision-making authority between the two court systems. Central to this body of concurrency law, the federal Anti-Injunction Act of 1793 (AIA) was enacted to limit the power of the federal courts to enjoin state court proceedings. Justice Felix Frankfurter decisively shaped our understanding of those limits, concluding in Toucey v. New York Life Insurance Company that the statute absolutely barred any such injunction. Much of the law of federal–state concurrency has been predicated on Toucey’s account. In this Article, we offer a new account of the AIA that challenges prior interpretations. Rather than a flat ban on injunctive relief, we show that the AIA was drafted against the backdrop of eighteenth century practice to restrict “original” federal equitable interference in ongoing state court proceedings but to leave the federal courts free to grant “ancillary” relief in the nature of an injunction, to protect federal jurisdiction and to effectuate federal decrees. It was this ancillary power that gave rise to the exceptions that Toucey decried and Congress restored in its 1948 codification. We draw on our new account of the 1793 and 1948 versions of the Act to address current problems of jurisdictional overlap. Among other things, we raise new questions about the much-maligned Rooker-Feldman doctrine; offer a new statutory substitute for the judge-made doctrine of equitable restraint; and suggest new ways to harmonize such abstention doctrines as Burford and Colorado River. Curiously, answers to these (and other) puzzles were hiding in the careful decision of the 1793 drafters to restrict only the issuance of “writs of injunction” and otherwise to leave federal equitable power intact.

The Oddball Doctrine: How Atypical Cases Make Bad Law

Despite the oft-mentioned goal of judicial restraint, courts have few effective tools to realize it. Stare decisis provides some guidance on whether legal change should be made where there is relevant precedent, but courts do not always conduct a stare decisis analysis. And for questions for which precedent and thus stare decisis is not relevant, beyond malleable tools, including those of statutory and constitutional interpretation, the courts have no guidance on whether to make legal change. Accordingly, many scholars have argued that judicial restraint is rhetoric not reality. Possibly unsurprisingly then, several recent high profile Supreme Court cases including Twombly, Wal-Mart, and Ricci, have exhibited what may be characterized as a lack of judicial restraint. While to date each case has been criticized for the specific legal change made in the case, an unrecognized lack of restraint ultimately ties all of the cases together. In the cases, the Court made legal change motivated by extraordinary circumstances, and no doctrine of judicial restraint prevented the change. This Article argues for a new doctrine of judicial restraint — the “atypical doctrine” — that the Court should not make legal change in cases, like Twombly, Wal-Mart, and Ricci, where legal change is motivated by oddball or atypical facts, and the change would affect typical cases. The Article contributes to the important question of when the Court should make legal change by beginning a discussion on how judicial restraint can be strengthened.

RESTRAINT OF TRADE DURING AND ON THE TERMINATION OF A CONTRACT OF EMPLOYMENT

RESTRAINT OF TRADE DURING AND ON THE TERMINATION OF A CONTRACT OF EMPLOYMENT

Religion, respect and Eberle’s agapic pacifist

Christopher Eberle has developed a powerful critique of justificatory liberalism. According to Eberle, justificatory liberalism’s doctrine of restraint, which requires religious citizens to refrain from publicly advocating for policies that can be supported only by their religious reasons, is illiberal. In this article, I defend justificatory liberalism against Eberle’s critique.

In Defense of Restraint: Democratic Respect, Public Justification, and Religious Conviction in Liberal Politics

WHAT DOES RESPECT REQUIRE OF RELIGIOUSLY MOTIVATED CITIZENS AS they support coercive public policies? In his recent work, Christopher Eberle argues against the doctrine of restraint, a norm that requires citizens to refrain from supporting laws for which public reasons are unavailable. Against Eberle, I defend the doctrine of restraint as a necessary corollary to liberal democratic respect. For this defense, I draw from one imaginary case, Robert Audi’s example of “sacred dandelions” and laws banning lawn maintenance, and one real-world dispute, current debates about same-sex marriage policies. I argue that the doctrine of restraint when coupled with an inclusive definition of public reason better accords with our intuitive sense of what respect requires in both cases.

Locke and Bayle on Religious Toleration

In Western-European societies, two questions are currently at the centre of political debate. What is the scope and what are the limits of religious toleration? What is the proper role of the state with regard to religious issues? By addressing these two topics, Dutch constitutional law scholars commonly start from two presumptions. First of all, the presumption in favour of liberty (leading to a quite absolute interpretation of fundamental rights) and secondly, the doctrine of interpretative restraint by civil authorities with regard to religious matters. These presumptions are generally considered as uncontested axioms. It seems to me that both presumptions may be qualified, however. This will be done by elaborating on the views of two 17-century scholars on religious toleration, the Englishman John Locke and the Frenchman Pierre Bayle. Interestingly, both formulated their insights during their exile in the Dutch Republic. It will turn out that the dominant interpretation of the presumptions rests on a too superficial reading of Locke and on a disregard of Bayle’s insights, respectively.

RELIGIOUS CONVICTION IN THE PROFESSION OF ARMS

Many political theorists have argued that religious reasons should play a rather limited role in public or political settings. So, for example, according to the Doctrine of Religious Restraint, citizens and legislators ought not allow religious reasons to play a decisive role in justifying public policies. Many military professionals seem to believe that some version of that doctrine applies in military settings, that is, that military professionals should not allow their religious convictions to determine how they exercise command authority. We explain why the Doctrine of Religious Restraint should not apply to military professionals and articulate an alternative understanding of the justificatory role legitimately played by religious considerations in military settings. This alternative understanding assumes that military professionals will exercise command authority with tact, wisdom, and due respect for both the spirit and letter of the law, even when they are guided by robust faith commitments.

Is India Ending its Strategic Restraint Doctrine?

Is India Ending its Strategic Restraint Doctrine?

Basic human worth and religious restraint

The Doctrine of Religious Restraint is the claim that citizens and officials in a liberal democracy should not support coercive laws that they know to require a religious rationale. The most prominent argument for the Doctine of Religious Restraint appeals to the claim that we ought to treat each person as having basic worth: citizens and officials ought to obey the Doctrine of Religious Restraint because doing so is required in order for them to respect their compatriots as persons who have equal moral standing. But this argument is not persuasive: citizens and officials who support coercive laws that they know require some religious justification need not thereby disrespect their compatriots. The article focuses throughout on the figure of an `Agapic Pacifist' who has sectarian religious reasons to oppose government's use of lethal military force.

Illegality of Cartel: Comparative Study of Criteria in the U.S, EC and Japan and their Implications for Vietnam

This paper is conducted in order to contribute my part to answering questions which are encountering Vietnamese law-makers in designing the country's first law. This paper is concerned with the issue of designing criteria to determine whether a cartel (an agreement among competitors to fix price, limit output, divide market or rig bids) is legal or illegal for Vietnam based on some lessons from the experiences in designing and enforcing those criteria in the 3 most influential jurisdictions of law in the world, i.e. the U.S, EC and Japan.This paper shows that all criteria used to assess the illegality of a cartel in the U.S., EC and Japan are closely related to requirements about efficiency, market power or administrative ability.Loyal to the conviction that only enterprise that possesses market power can harm process in the market and responding to the request of a less stringent law by the business community, the Japanese law requires that all illegal cartels must meet the two requirements, namely causing substantial restraint of competition and contrary to the public interest. The existence of the cartel itself is therefore not enough for its illegality. In all cartel cases, the existence of market power must be proved by taking complicate steps such as defining relevant product market, relevant geographic market, identifying entry and exit barriers, etc. This approach makes the process of enforcement of anti-cartel rules lengthy and expensive.The U.S. antitrust law and EC law employ a simpler approach to assess the illegality of cartels. By expressly adopting ancillary restraint doctrine and per se rule, the U.S. anti-cartel rule is that all naked cartels are per se illegal. The existence of such cartel itself is sufficient for its illegality. No further inquiry is needed and no defense is allowed. By expressly adopting ancillary restraint doctrine and regarding naked cartels as agreements which have as their object the restriction of competition, the EC anti-cartel rule is also quite simple: all naked cartels are generally illegal. The existence of naked cartels is sufficient for their illegality. No further inquiry is needed and almost no defense is allowed. Clearly, the enforcement of anti-cartel rules in the U.S. and EC is less expensive and less complicate than that of Japanese counterpart. Not expressly recognizing the ancillary restraint doctrine, the Drafting Committee of Competition Law of Vietnam proposes an anti-cartel rule that only cartel with the combined market share of not less than 30% (except for bid-rigging) can be considered as illegal. This paper shows that the approach of the Drafting Committee would create unnecessary steps in the application of anti-cartel rule. This paper proposes that the Competition Law of Vietnam should expressly adopt the ancillary restraint doctrine and per se rule in determining whether a cartel is illegal or not. The illegality of ancillary restraint should be analyzed by its necessity for the smooth implementation of the main efficiency-enhancing transaction or activity. Naked cartels should be treated as per se illegal. This approach is especially appropriate in the context it is the first time Vietnam adopts a law.