English Private Law Research Articles

The Abu Dhabi Global Market and Its Transplant of English Private Law

Abstract A grand experiment took place in the Abu Dhabi Global Market (ADGM). This relatively new special economic zone adopted English law as its operational law through a decision by which such a transplant would become instantly applicable. While such instant transplants have generally not fared well in the past, in the present instance, the ADGM experiment seems to have produced tangible outcomes. This is largely due to the fact that the introduction of English law was accompanied by the establishment of a court composed of judges with vast experience in the application of statutory and common law. In addition, both the court and its various stakeholders are in ‘dialogue’ with the courts and institutions of England, in the sense that English precedent is generally followed subject to the exigence of the ADGM. This species of transplant is viewed by the author as a successful model, albeit one suitable for a jurisdiction with significant financial resources.

Crypto-Property: Response to Public Consultation by the UK Jurisdiction Taskforce of the LawTech Delivery Panel

In 2019, the UK Jurisdiction Taskforce of the LawTech Delivery Panel launched a consultation on the “status of cryptoassets, distributed ledger technology and smart contracts under English private law”. This is the author's response.

Collateral Damage: Brexit's Negative Effects on Regulatory Competition and Legal Innovation in Private Law

This article attempts to assess the consequences of Brexit for English and European private law. More specifically, I am interested in how the level of legal innovation in private law will be influenced by Brexit. I argue that Brexit will reduce the level of efficiency-enhancing legal innovation in Member States’ and European private law. My analysis is based on the premise that regulatory competition between the EU Member States is, in principle, beneficial because it initiates a “discovery process” for new and, hopefully, more efficient legal products. It is based on the further premise that Brexit will reduce the level of regulatory competition in the EU. This is so because choosing UK legal products will likely be more difficult in the future—Member States will not be obliged to respect such choices to the same degree as under the current legal regime. As a consequence, Member States will be under less competitive pressure in the future to take note of popular UK, and in particular English, legal products and to improve their own laws as they currently stand. At the same time, reduced choice opportunities and choice certainty for private parties will also reduce the incentives for the UK to innovate—it will no longer be able to export its legal products to continental Europe as easily as under the existing legal regime. In essence, Brexit will eliminate a highly innovative competitor on the European market for new legal products in private law, reducing the beneficial effects of such competition. There is another reason why we can expect the level of legal innovation in private law to decline after Brexit. In the past, the UK has not only been quite successful in developing and exporting private law products to other Member States. It has also made significant contributions to innovative private law-making on the European level. With Brexit, this is set to go. Private law-making on the European level will no longer benefit from the UK’s influence and contributions. Debates will be impoverished and the quality of outcomes might suffer. I substantiate and illustrate the main thesis of this article with examples taken mostly from contract law and dispute resolution, company law and insolvency law.

THE PENALTY RULE: A MODERN INTERPRETATION

This paper focuses on the common law doctrine of the penalty rule and the recent Supreme Court decision in Cavendish Square Holding v Makdessi and ParkingEye v Beavis. The state of the penalty rule prior to the judgment was unsatisfactory and criticized by both commentators and practitioners alike. Its indiscriminate application and unclear criteria was a needless source of uncertainty for both contracting parties and lawyers. Nevertheless, their Lordships in Cavendish refused to abolish the penalty rule but acknowledged its limited application in the modern commercial context. This paper accordingly aims to justify the continued existence of the doctrine on theoretical grounds within the English private law framework despite its practical obsolescence.

BOOK REVIEW: Corporate Social Responsibility, Private Law and Global Supply Chains by Andreas Rühmkorf

Ruhmkorf, Andreas. Corporate Social Responsibility, Private Law and Global Supply Chains. Northampton: Edward Elgar, 2015. xvi + 264 pages. Hardcover, $125.00. Human rights and environmental protection have evolved as pivotal issues within Corporate Social Responsibility (CSR) guidelines for companies with international reach. The United Kingdom (UK) has grappled with developing a consistent method of enforcing corporate governance in support of these ideals within the international market. In his book Corporate Social Responsibility, Private Law and Global Supply Chains, Dr. Andreas Ruhmkorf, a lawyer and professor of commercial law, proposes how English private law can be used to ensure corporations that utilize global supply chains are held accountable for violations of their own corporate governance. The author examines case studies of fifteen UK-based corporations which issue their own governance based on the European Union's recommendations for corporate code of conduct. Although any inherently transnational CSR guidelines implemented remain primarily under the auspices of English law, Ruhmkorf's analysis of these guidelines is valuable despite the United Kingdom's recently passed referendum to withdraw from the European Union. Ruhmkorf enumerates four subcategories within English private law to impose a higher duty for companies headquartered in the United Kingdom to practice Corporate Social Responsibility principles. This analysis includes: 1) the usage of directors' duties as an avenue to promote CSR, 2) the study of first tier corporations that include CSR guidelines in supply chain contracts, 3) consumers' claims under certain English statutes that assert corporations who have engaged in misleading business practices have in fact violated their own CSR principles, and 4) the use of class action lawsuits under tort law for such violations. The author analyzes section s172(1)CA of the United Kingdom's Company Act of 2006 which upholds a Board of Directors' right to determine the best interests of the company although it is still obliged to balance the interests of other stakeholders such as employees and suppliers based on the enhanced shareholder theory. Thus, in this context, CSR is at the corporation's discretion as courts are hesitant to interfere with the daily operation and management of private entities. Ruhmkorf then presents an interesting legal approach explaining that shareholders may use their stake to enforce CSR goals on a corporation through derivative actions under the UK's Stewardship Code of 2010. However, the author again concludes that such an action would likely have little to no impact in holding corporations accountable for violations of CSR policies as shareholders are the primary beneficiaries of corporate financial gain. Thereafter Ruhmkorf discusses the United Nations Guiding Principles on Business and Human Rights and how UK-based companies which incorporate CSR guidelines in their global supply chain contracts may use jurisdiction as an enforcement mechanism. For instance, when an English company specifically states within an executed contract that English courts have jurisdiction, those entities which voluntarily availed themselves of such contracts must adhere to those terms. The author also mentions the Brussels I Regulation, a European Union law which states that an entity based in any European Union member-state and party to a contract has jurisdiction in such disputes. Ruhmkorf also delves into great detail regarding various tiers of contracts, standard purchase orders, and produced goods which comprise the global supply chain, in order to determine whether contractual terms may be enforced against third party beneficiaries. Based on the UK's Contracts Act of 2009 and the Privity of Contract Doctrine at common law, it is unlikely that a first tier UK-based corporation has the ability to impose such standards on tenuous sub-contractors unless the primary agreement expressly incorporates such a clause. …

REFLECTIONS ON THE ROLE OF ROMAN LAW AND COMPARATIVE LAW IN THE PROCESS OF HARMONIZATION AND UNIFICATION OF PRIVATE (CIVIL) LAW IN EUROPE - DOI: 10.12818/P.0304-2340.2015v67p279

The private (civil) law of European countries is closely connected to Roman law which is in no contradiction that these countries have different historical and legal traditions. This is more obvious in the period of decrease or even disappearance of differences, often motivated by political and economic interests, between certain “legal fields” or “legal families.” Not even differing traditions of culture and civilization constitute hindrances to the differing extent of the reception of Roman law. In the formation of European private law, convergence plays an increasing role. Many noted authors write about the relativization of differences between common law and civil law based on Roman law. They emphasize the disappearance of differences in the sphere of many legal institutions. In the field of contract law, many institutions, constructions of continental law are subject to reception in English law. It deserves attention that with regard to terminology, certain English authors, in connection with English private law, explicitly refer to the role of Roman law tradition. In his article the author comes to the conclusion that Roman law i.e. Roman law tradition(s) in the comprehensive, comparative analysis in the lengthy process of the formation of European private law (ius commune Europaeum) has a significant role.

RIGHTS AND FUNDAMENTAL RIGHTS IN ENGLISH LAW

AbstractThis paper examines the role of rights and fundamental rights in English public law and private law in recent times. It argues that the idea of fundamental rights has been more significant in the filed of public law and seeks to explain why. It compares the operation of domestic fundamental rights with the rights in the European Convention of Human Rights and suggests a methodology for identifying the existence and scope of the former. The paper considers the possible legal effects which might follow from repeal of the Human Rights Act 1998.

The Political Origins of English Private Law

The article seeks to explain the emergence of the view that English law contains a fundamental divide between public and private law. I propose to explain the divide, not as a conceptual distinction, grounded in the internal rationality of law, but as a response to the potential problem of political legitimacy arising from the fact that in the domain of private law courts are constantly engaged in making substantive law. That by itself shows that the divide between public and private law is politically motivated, but I further argue that the prevailing view of law among proponents of the divide revives Dicey's conception of the common law within the narrower domain of private law. Since Dicey's views are widely believed to be motivated by his political views, if I am right, this lends support to the conclusion that the views of defenders of the divide are grounded in similar political positions.

Confusio: Reference to Roman Law in the House of Lords and the Development of English Private Law

This paper examines the use of Roman law by members of the House of Lords in three recent decisions: Fairchild vs. Glenhaven Funeral Services [2002] UKHL 22; Foskett vs. McKeown [2001] 1 AC 102; and OBG vs. Allan [2007] UKHL 21, The contrasting views of Professor Peter Birks and Professor Sir Basil Markesinis are considered, and it is argued that within the decisions can be seen the value of reference to Roman law.

Fidelity in interpretation: Lord Hoffmann and The Adventure of the Empty House

This paper explores Dworkin's ‘law as a chain novel’ analogy and considers the recent work of Dworkin and MacCormick through close scrutiny of two recent judgments of Lord Hoffmann, in Barlow Clowes v Eurotrust International [2005] UKPC 37 and Barker v Corus [2006] UKHL 20. The aim is to examine Dworkin's theory in the context of recent English private law decisions and determine whether Lord Hoffmann's approach to interpretation is consistent with that of Dworkin (as his Lordship has contended in the past). It is argued that Lord Hoffmann's treatment of recent decisions on which he himself sat raises significant questions regarding fidelity, coherence and the institutional structure of the House of Lords.

Law and Economics of Fraudulent Misrepresentation

Intentional misrepresentation (IM) or fraudulent misrepresentation in this paper is defined as a type of behaviours that one contracting party (representor) intentionally presents untrue information to another party (representee) for inducing the latter to contract with him. Why are IMs socially undesirable? How should the law regulate IMs, and what are the economic effects of current English private law of IMs? This paper intends from the perspective of law and economics to seek the answers to these three questions. The whole paper proceeds as follow. Section II provides an economic account for the undesirability of IMs. There are three reasons to justify the legal remedies for IMs. First, the contract concluded on the basis of an IM will lead to a misallocation of resource. Second, IMs incur considerable precautionary costs. Third, the resources used for making IM are wasted. Section III explores the relevant economic theories on the law of IMs in current law and economics literature. Section IV analyses the deterrence of two legal remedies for IMs, viz. damage and rescission. The analysis speculates that because of imperfect enforcement of private legal remedy in reality, the deterrence of damage is likely to be more effective than rescission. The costs incurred by the legal remedies are examined in Section V. Finally, a very brief remark is made in Section VI.

Comparative History and the Internal View of French, German, and English Private Law

This Article explores the different intellectual and socio-political contexts that attended the emergence of the French, German, and English legal systems with a view to understanding French, German, and English private law from the perspective of the participants in these systems. The French legal system is a child of the Cartesian dualism that marked the Age of Reason, according to which the material world can and ought to be fully dominated by the human intellect. This conception of the relation of facts to ideas arguably is reflected in the structure and design of the French civil code, in such institutional features as the French conception of the role of the judge, as well as in the tendency of French jurists to view contractual consent subjectively. In contrast, the German legal system congealed at a time when Cartesian dualism was losing ground to German idealism. The dialectic conception of facts and ideas favoured by the German idealists arguably made its way into several institutional features of the German legal system, including the content of the BGB, the codification process, the conception of the role of the judge, the style of judicial decisions, and the greater inter-penetration of public and private law. It may also partly explain why German jurists have tended to view contractual consent as simultaneously objective and subjective. Finally, whereas both the French and the German legal systems emerged from highly intellectual contexts, the English legal system grew from a maize of pragmatic political and administrative considerations that left little room for explicit ideas. The emphasis on hard facts still is palpable in many aspects of contemporary English law, in particular, the doctrine of stare decisis, the conception of the judicial function, and the mode of reasoning by analogy. It arguably also is reflected in the tendency of English judges to privilege the objective conception of contractual consent.

English Private Law: Old and New Thinking in the Taxonomy Debate

A recently published two-volume work edited by Peter Birks has as one of its objectives the encapsulation of the whole of English private law within a legal plan that draws its inspiration from the Institutes of Gaius.' It is in other words a kind of Institutes of English Private Law. This work, whatever its substantive merits or demerits, deserves some attention. It deserves attention not only because such a project is, consciously or subconsciously, preparing the ground for possible harmonization of private law in Europe, but also because it is purporting to rescue English law from a course said to be leading to incoherence and disaster. 'Better understanding of the law', writes the Editor in his introduction, 'depends upon a sound taxonomy of the law'. And if scholars turn their back to the taxonomic debate 'the common law will dissolve into incoherence' since information 'which cannot be sorted is not knowledge'.2 One purpose of this article is to consider the validity of these claims and some of the wider issues that they raise. It will be argued that there are problems with the taxonomical approach being advocated by Birks. The strict rights approach, favoured by the editor of English Private Law, is problematic in as much as it does not sit comfortably either with the Gaian institutional scheme itself or with an understanding of the common law mentality. Moreover, even assuming that legal knowledge is now focused around the notion of a right, it will be argued that the persona and res and person and person relations around which the Gaian scheme is constructed are no longer suitable for contemporary society.3 Rather, in a society that emphasizes a variety of different kind of rights (social, economic, political), the scheme should now take as its starting point a persona that is constructed differently depending upon the legal regime in play. Thus constitutional

We Do This At Common Law But That In Equity

This article argues that lawyers are not doing enough to eradicate the needless differences in terminology used, and the substantive inconsistencies, between common law and equity. In developing this argument, three categories within English private law are recognized. First, where common law and equity co‐exist coherently, and where the historical labels of common law and equity remain useful terminology. Second, where common law and equity co‐exist coherently but there is nothing to be gained by adherence to those labels which could, and should, be excised at a stroke. And third, where common law and equity do not co‐exist coherently and a change in the law, albeit often only a small change, is needed to produce a principled product. As a general illustration of what the third category comprises, and what fusion requires, one wide‐ranging and practically very important area within the third category is focused on, namely monetary remedies for civil wrongs.

Douglas and others v Hello! Ltd– the Protection of Privacy in English Private Law

This article considers the reasoning and likely impact of the English Court of Appeal decision of Douglas v Hello!. The article examines Court’s approach both to the horizontal effect of the Human Rights Act 1998 and the development of the new privacy action. It also discusses the way in which the judges formulated the breach of confidence/privacy action and theoretical concepts underpinning the new action.

Book Review

Journal Article Book Review Get access English Private Law (Volumes I & II) Edited by Peter Birks Publisher: Oxford University PressISBN No: 0-19-876500-2 (Set) Volume I - 676pp Volume II - 1,084pp Price: £145 JGG JGG Search for other works by this author on: Oxford Academic Google Scholar Trusts & Trustees, Volume 7, Issue 4, March 2001, Pages 29–32, https://doi.org/10.1093/tandt/7.4.29b Published: 01 March 2001