English Law Research Articles

SOME ASPECTS OF LEGAL DEVELOPMENT OF THE COUNTRIES OF CENTRAL ASIA

The article analyzes and compares the legal developments of the countries of Central Asia in the context of digitalization of all aspects of public life, including the legal sphere. It is noted that the judicial system of these countries is developing along the same vector towards the creation of a truly independent judicial system, which does not exclude the presence of certain aspects in development, in particular the institution of jury trial in Kazakhstan, attempts to create such in Kyrgyzstan, etc. or those common and distinctive features that took place in the systems of sources of law in these countries regarding the status of decisions of the Supreme Courts. The article also notes those trends in the legal development of these countries, such as the influence of English law and its application in the field of international cooperation, more precisely in the field of business and commerce.

Arbitrator resignations: the Law Commission’s proposed reforms

Abstract An article which assesses the Law Commission’s proposed reforms regarding arbitrator immunity and resignations. The important distinctions between a contract to serve as an arbitrator and an ordinary contractual agreement are considered, as are the differences between the contractual and functional theories of arbitrator immunity under English law. The article assesses arbitrator immunity in England and Wales and the application of the doctrine of immunity in the specific context of arbitrator resignations. The current position under English law is considered by reference to the key authorities in this area of law, as are the Law Commission’s proposals. Finally, consideration is given to the areas of uncertainty which shall remain under English law if the proposed reforms are given effect.

Revisiting the Right in Zimbabwe of a Subrogated Insurer to Proceed against a Third Party in the Name of the Insured: Lessons from South Africa

AbstractThe doctrine of subrogation, like many other legal principles in Zimbabwean insurance law, has evolved with changing times. The position in Zimbabwe (which was adopted from English law) is that a subrogated insurer who intends to enforce the insured's right to recover compensation for the insured loss from a third party can only do so in the name of the insured. The reason is that the insured is the custodian of legal rights against the third party; the insurer's rights only relate to the insured and not the third party. This research discusses legal developments in South African law and how they may be adopted in Zimbabwe in order to advance the rights of the parties in subrogation proceedings.

Electronic bills of lading, transnational and English law: blocking the blockchain?

Abstract The dematerialisation of paper bills of lading has been a goal of the maritime trade community ever since the invention of the Internet, though reaching it had recently seemed increasingly unlikely. The development of blockchain technology has given new impetus to this enterprise, leading to UNCITRAL’s Model Law on Electronic Transferable Records. The recently passed Electronic Trade Documents Act 2023 implements many of the Model Law’s feature in English law and this may finally make electronic bills of lading a practical and not just a fanciful proposition. It is suggested, however, that the Act can achieve its goals without having to resort to the technology that inspired it – more pedestrian, centralised registry systems might be a safer bet than blockchain, at least for now.

On the effectiveness of digital dispute resolution through arbitration in England and Wales

The intensive growth of the digital economy has created the prerequisites for the emergence of a new mechanism of communication through the barriers of time and borders, which has affected all areas of society, including the area of dispute resolution. The emergence of completely new objects of civil rights in the metaverse requires the legislator to develop a legal basis for their functioning. The need to create special mechanisms for resolving so-called digital disputes has been overdue for a long time, and their legal nature can be completely different, both related to the active integration of information and communication technology, and not arising in the field of finance, trade, intellectual property. It is quite obvious that the main features of such social relations are that their occurrence does not depend on time and boundaries. Thus, the way to resolve digital disputes should correspond to these specific features. Foreign experience in resolving digital disputes indicates, that there is no reality in which they could be avoided. Even a well-created smart contract on the blockchain does not guarantee the absence of controversial situations. Here the problem arises of choosing an adequate way to resolve such disputes, which would meet the necessary conditions, namely, binding and enforceability, and most importantly, correspond to specific features. The global community in the field of digital dispute resolution has chosen arbitration as the basis as the most common, flexible, independent and fast way to resolve disputes. The inclusion of an arbitration clause in smart contracts and the adoption of various rules for resolving digital disputes has become widespread. However even here there are legal conflicts and gaps in the regulation of digital rights, which requires the development of a single unified approach and its implementation into national legislation. In addition, the internal regulation of the dispute resolution procedure in the blockchain also creates a number of unresolved issues. One of the most developed legal systems in the field of digital dispute resolution is traditionally England and Wales. Over the past few years, a number of by-laws have been adopted that have had a significant impact on the development of this area, as well as the reform of arbitration legislation have created all the prerequisites for creating the most favorable conditions for the parties to a digital dispute to submit the dispute to English arbitration and in accordance with the law of England and Wales.

Revealing the Company of Merchants of England Trading to the East Indies through law and the painted moment

Teleological histories frequently identify the emergence of company law in England as originating in the charter corporations of the Elizabethan period. I argue that while the corporations created for foreign trade helped amass the wealth required for the capitalist development which would subsequently shape the modern company, corporations are not its organisational origin story. I demonstrate this using a multi-disciplinary study of the East India Company (the Company). By analysing the evolving rights of Company stockholders and related legal developments, I show how the state shaped a trading venture into a colonial project and strategic force in European military conflicts. Uniquely, I further evidence this through an analysis of art connected with the Company made contemporaneously to the events discussed. This shows that the Company was an aggregate of people and ambitions conjoining private finance with the imperial aspirations of the Crown – a ‘they’ not the ‘it’ of modern companies.

The Role of Parliament in the Implementation of Shariah in Western Europe (Belgium, France, and Germany)

This article aims to describe the condition of Muslims who live and integrate in Germany, Belgium, the Netherlands, and other European Regions, who should find religious foundations and interpretations that do not deviate from the boundaries imposed by a secular legal state. By calling for incorporating some Islamic law principles into British law, the Archbishop of Canterbury, Rowan Williams, has sparked interest and sharp criticism in Britain. In Germany, some journalists warned against “the Western world taking another step in the path of submission to the wishes of the minority Muslim immigrants who do not want to integrate.” Are these concerns well-founded? After conducting a literature review, we employed a qualitative approach using data from mass media, books, and journal articles to analyze the trend of a small proportion of European society, supported by scholars and clergy, who advocate for the application of Islamic law based on the principles of democracy and secularism. We studied how this phenomenon relates to freedom of opinion and the direction of community policy.
 Keywords: implementation, parliament, Shariah, Europe

Forensic mental health in Kuwait: filling the gaps

The case of M’Naghten (1843) laid out the insanity defence test for the British legal system. Later, many countries basing their criminal legislation on the British common law system, including the Criminal Act of Kuwait, adopted the test. The Act forms the basis for forensic psychiatric assessments. Several countries amended their criminal laws to provide a better balance between public safety and human rights protection. However, the Criminal Act of Kuwait remains unchanged for offenders with mental illness since its enactment in the early 1960s, with several gaps concerning the detention mechanisms and the discharge of such offenders. However the Kuwait Mental Health Law (2019) eventually filled these gaps. This paper describes the function of forensic mental health services in Kuwait, discusses and compares the Criminal Act of Kuwait with other nations’ criminal laws and describes the forensic section of the Kuwait Mental Health Law (2019).

Exploring African Abolitionism: Fante Perspectives on Domestic Slavery in the Nineteenth-Century Gold Coast

AbstractThis article draws on a variety of primary sources to first illustrate the rise of African abolitionism in the Fante region in the mid-nineteenth century and then situate local abolitionists in the context of colonial legal abolition in the Gold Coast. When the British abolished slavery in 1874, various Fante groups had been developing local anti-slavery views and strategies closely connected to the evolution of a Fante ethnic identity fashioned against the “barbaric” Asante. Tensions arose between the Fante intelligentsia, which spearheaded local abolitionism, and British colonial elites. The article examines the rise of local abolitionism among the coastal Fante through specific ideas, individuals, and events, and discusses subsequent dynamics in the “first age” (1874–1900) of colonial abolitionism in the Gold Coast. It shows that the 1874 abolition was opposed by members of the Fante anti-slavery movement not—as has been argued—because Fante intellectuals were pro-slavery or opposed to the idea of abolition, but because they held different visions of emancipation and were critical of British abolition laws that, unlike in the West Indies, did not compensate slaveowners.

Correlation between classical Roman law and English common law: comparative historical analysis

The term ‘correlation’ can be interpretated in a wider meaning than the presence of a frequency of connection between two collignial indicators. This semantic content as "a relation existing between phenomena" is present in the discourse of liberal arts, in contrast to parametric statistics. The purpose of the study is to verify the existence of a correlation between basic conceptual ideas in Ancient Roman law and English common law and to evaluate the scope and manifestations of this issue. The research problem is complicated by the fact that the overwhelming majority of modern historians traditionally contrast the legal systems of continental European countries with Anglo-American law. And there very few famous scientists who consistently reaffirm the opposite position and consider that the common legal tradition in Europe exists. The article shows three groups of key evidence of Ancient Roman Law influences on the English Common Law. The historical arguments explain the fantastic ability of English law to export to other countries. In world history, this property was only one legal culture, namely Old Roman. These abilities to transfer and reception are defined as the most significant parallels between the legal traditions that are investigated.

British influence on continental legal tradition in Croatia: Holy Grail or a Wrong Trail?

The Croatian legal system is traditionally under the dominant influence of the Germanic legal tradition. This is a logical consequence of historical circumstances, which state that present-day Croatia was long part of the Austro-Hungarian Empire. In the field of criminal law, which is the focus of this paper, there is a significant influence of Austrian, German, and Swiss criminal law. However, since 2008, new trends have emerged, first evident in procedural law (through the introduction of the previously typical AngloAmerican institution of plea bargaining in criminal proceedings), and then from 2013 also in substantive criminal law. In the Criminal Code of 2013, sexual offenses were modeled after the English Sexual Offences Act of 2003, which has sparked considerable controversy in theory and practice. In this text, the author critically examines this legislative shift in tradition from the perspective of comparing the historical circumstances of the English and Croatian criminal law backgrounds. The author discusses the differences in criminal justice systems of these countries, compares the circumstances of the origin and shaping of sexual offenses in the mentioned legislations, and presents the results of their own research conducted in Croatia, reflecting whether the new legal solution was successful and whether it achieved its purpose. Based on this, the author provides an answer to the hypothetical question of whether a solution implemented from one legal tradition can successfully exist in the conditions of another significantly different legal tradition.

Developments in Comparative Public Law in South Africa

In South Africa, the study and practice of law involve comparing different legal systems due to the complex historical blend of Roman-Dutch, English, indigenous, and religious laws. Constitutional supremacy since 1994 has amplified the importance of comparative legal method. The 1996 Constitution itself drew from various legal systems, endorsing the use of foreign law in interpreting rights. Comparative legal method is vital across all legal domains, and has greatly grown in relevance in constitutional and administrative law following constitutionalisation. This contribution explores the use of comparative legal method in South African constitutional and administrative law. It uses Herwig Hofmann’s three categories of comparative frameworks, namely “law as category”, “law as source” and “law as variable”, to consider the continuity and discontinuity between historical reliance on comparative method in South Africa and comparative legislative and judicial practices under the Constitution in the areas of constitutional and administrative law.

Civilizational Politics at the Commonwealth Games: Identity, Coloniality and LGBTIQ+ Inclusion

Abstract In 2022, the United Kingdom hosted the Commonwealth Games in Birmingham, with this games featuring a pride programme that promoted LGBTIQ+ inclusion around the Commonwealth. With British colonial norms and laws often providing the origins of homophobic and transphobic policies in Commonwealth member states, this paper sees LGBTIQ+ inclusivity narratives at the games as a significant object of study. Focusing on the theme of “welcoming,” the paper interrogates the various welcomes that were extended to different communities at the games; welcoming athletes from around the Commonwealth to Birmingham, welcoming queer people into the world of sport, and welcoming Commonwealth citizens into the LGBTIQ+ framework. Encapsulating these welcomes, it argues, was a liberal progress narrative that ignores ongoing British colonial violence, for example through the United Kingdom’s carceral border policy, or through culture war debates that demonize trans women. Contesting depictions of British democracy as the zenith of human development, this paper highlights the inconsistency of this with the UK Government’s politics of exclusion and the ways in which civilizationist agendas detract attention from the ongoing operation of coloniality. It also reflects on opportunities for resisting colonial violence in complex socio-political contexts.

SLAPPs: What are they? And how should defamation law be reformed to address them?

ABSTRACT This article examines the need for legislative reform to address the problem of strategic litigation against public participation (SLAPPs), with a focus on defamation law as the most common action for such claims. It draws upon legislative and judicial approaches from a range of different jurisdictions to define the problem of SLAPPs and examines whether the existing law in England and Wales provides an adequate solution to the problem of SLAPPs. This analysis indicates some important recent developments in the law that are relevant to SLAPPs but concludes that legislative reform is necessary to address the problem of SLAPPs. In contrast to the current proposals for reform, the article proposes an anti-SLAPP provision that crystallizes and builds upon recent developments in the law, to effectively address the problem of SLAPPs without posing an unnecessary risk of the denial of innocent claims.

Double Jeopardy, Autrefois Acquit and the Legal Ethics of the Rule Against Unreasonably Splitting a Case

Section 75 of the Criminal Justice Act (CJA) of 2003 overturned the principle in English law that a person cannot be retried for an offense of which he has been acquitted, recognizing advances in forensic science that uses modern analysis of DNA in adducing in evidence. The special plea of autrefois acquit can be overturned based on finding of compelling evidence after a previous acquittal of a suspect who can now be tried again for the same offense. The double jeopardy arises only after a lawful acquittal or autrefois convict of the accused for the first offense and these principles have allowed exceptions to the rule against double jeopardy developed by the courts. There is an analogous rule in common law courts based on the unreasonable splitting of the case when there is a severing of indictments which overrides the bar on the accused being retried for the same offense. This paper examines the difficulty of trying a defendant fairly in the English courts when the defense has pleaded an abuse of process and there is no clear overall argument for trial. This question needs an appraisal of legal ethics in criminal courts because a retrial of the accused on the same charge breaches the autrefois acquit doctrine, and severing of an indictment can cause the fair trial process to be undermined.

Poverty, old age and outdoor relief in late-Victorian England

ABSTRACT While studies dedicated to the extent of poverty in old age under the New Poor Law in nineteenth-century England have grown, gaps still exist in terms of a detailed examination of outdoor relief compared with workhouse populations. Using rarely consulted outdoor relief application and report books for three Poor Law Unions in the early 1880s (Alton Union, Hampshire; Hertford Union, Hertfordshire; and Ripon Union, Yorkshire West Riding), this article provides estimated proportions of older people on outdoor relief by linking the report books with census materials. It also examines variations in allowances prescribed to single and married individuals. Firstly, older people in southern England were more likely to receive outdoor relief compared with their northern counterparts, consistent with the extant literature outlining a ‘north–south’ divide of welfare provision. Secondly, allowances were surprisingly generous in Ripon Union. For married couples, allowances were double the average documented elsewhere and reflect those granted under the Old Age Pensions Act of 1908. In conclusion, continuity in the treatment of older-age applicants between the later years of the New Poor Law and the start of the Old Age Pensions Act is emphasised, especially in the context of northern Poor Law Unions such as Ripon.

A Roman face on an English body: the typography of Plowden’s Commentaries

ABSTRACT This paper examines the typographic form of Plowden’s Commentaries within its legal, printing, and technological histories, demonstrating that its typographic appearance embeds complex tensions over the study and dissemination of the common law into its material form. There are legally relevant meanings in the shape of letters, beyond mere legibility, that are connected with the heritage of type design and print technologies. Within the context of debates over the propriety of early common law printing, this paper provides an examination of Plowden’s typographic style as roman and humanist. Tracing the genealogy of roman and humanist letters that led to the ones used in Plowden’s opening judgment, the typography of the Commentaries is connected to debates over the resistance of the common law (as an unwritten law) to humanism and Roman-style codification. Plowden’s typographic register is thereby seen to encode the Latinate traditions to which the structure and custom of the English common law is opposed.

МНОГОКОМПОНЕНТНЫЕ ТЕРМИНЫ МЕЖДУНАРОДНОГО ВОЗДУШНОГО ПРАВА В АНГЛИЙСКОМ ЯЗЫКЕ

The article reveals an actual problem of the specificity of the terminology system of international air law in the English language. The study presents the results of the specificity of multicomponent terms according to the criterion of belonging to the semantic core within the framework of terminological fields. The research goal is to determine the features of multi-component terms of international air law in the English terminology system. The study objectives were to identify the specific lexical and grammatical characteristics of multi-component terms of international air law in English, and to conduct a partial analysis of terms with a multi-component composition in English. The article presents the results of an empirical study that prove that the component-by-component method of term analysis proposed in the study allows us to identify a number of key features of multi-component terms in the English term system of international air law. Based on empirical results, the author concluded that within the field of international air law, multicomponent terms occupy the second position in terms of frequency of use in English. The research materials are useful for analyzing the partial structure of terms with a multicomponent composition in the terminology system of international air law in English.

The Balance Between EU Harmonization and English Common Law: Ultra Vires Transactions and Restrictions on Officer’s Powers in Cyprus Company Law

The Balance Between EU Harmonization and English Common Law: Ultra Vires Transactions and Restrictions on Officer’s Powers in Cyprus Company Law

ФОРМУВАННЯ СУЧАСНОГО ПРАВОВОГО ТЕРМІНОЛОГІЧНОГО АПАРАТУ В ІВРИТІ: СПОСОБИ ТА ВПЛИВ ІНШИХ ПРАВОВИХ СИСТЕМ

The article is dedicated to the peculiarities of the legal terminology formation, which took place in the process of the restoration of the Hebrew language and its becoming the official state language of the modern Israel. The legal system of Israel has been created during XX century, after near two-thousand-year period of its existence without own state, being limited to the small community’s common and religious law in different languages only. Thus, creation of the own state has demanded not only to adapt the legal institutes, but to develop new actual terminology in the new official state language. But the terminology complex of the Hebrew was based on the ancient language sources, so creation or adapting of the classic Hebrew words for the definition of the modern legal terms became a great scientific challenge. In the article we conclude, that new lexemes were not created in the process of the Israel legal terminology formation, but the old texts words were chosen, usually with some rethinking and reinterpretation of its meanings. This approach provides the possibility to avoid direct borrowing of the terms, which is a typical process in the reception of law in other states. Despite the fact that, in addition to the English Common Law, the formation of Israel’s legal system was influenced by the Ottoman and Romano-Germanic law, concepts from the English legal system were taken as the basis for the selection of many basic terms. The terms creation was not limited to formal denomination only. Often the process becomes more substantive, noticing the etymology, the content of the legal institute and the mechanisms of the practical law-enforcements. After this deep scientific work of the linguists and lawyers Hebrew terminology of the Israel legal system fully expresses the content and the scope of the concepts of the relevant legal institutes.