English Supreme Court Research Articles

How Joint Enterprise Liability Neutered the Criminal Cases Review Commission in England

In 2016 the English Supreme Court changed the law concerning joint enterprise liablity ub R v Jogee. The decision appeared to provide a remedy for secondary parties that had been convicted under the, albeit faithful application of the old law. The requirement, however, to demonstrate a substantial injustice following the subsequent case of Johnson significantly curtailed the number of appeals based on this change in the law. The substantial injustice test is applied by the English Criminal Cases Review Commission (CCRC) prior to the application of the statutory real possibility test. Up until now, there has not been any research that examines the impact of this situation and the extent that it constricts any remedy for secondary parties convicted under joint enterprise liability. Using findings from the first study to explore this concept this work examines the limiting effect of the substantial injustice test on the CCRC, explores the application of the corrected law from Jogee, and shows the low number of applicants to the CCRC that identify as black British, despite existing research suggesting this demographic has the highest conviction rate for joint enterprise.

For a Universal Standard for Conflicts Disclosures

Abstract Amongst the many reforms of international arbitration that are currently discussed, the adoption of a universal standard for conflicts disclosures is particularly necessary. Currently, the subjective standard “in the eyes of the parties” that is adopted by the IBA Guidelines and the ICC Rules coexist with the objective standard “from the perspective of a fair-minded and informed observer”, as defined by the English Supreme Court in Halliburton. The author submits that the IBA-ICC standard is preferable for it fosters more complete disclosures and encourages transparency. However, the subjective standard does not eliminate the moral hazard of non-disclosures and the author recommends that it be combined with a purely objective requirement to disclose based on a pre-established list of circumstances.

Is the two-step test set out in LM and L and P English Supreme Court’s best option in post-Brexit Britain for EAW requests made by States with structural deficiencies?

This article briefly introduces the European arrest warrant (‘EAW’) system, analysing the context in which it develops and how this procedure interacts with both the intricate post-Brexit universe and the current instability of the Polish judiciary. Paragraph 2 assesses the relevant case law of the European Court of Justice (‘CJEU’) in cases of EAW requested by States with generalised deficiencies and asserts that the legal approach developed in LM and L and P proves correct in the abstract. Though it argues that the safeguarding mechanisms set out in the EAW Framework Decision can be paralysed by instruments that are ontologically political in nature, it thus proposes a new legal approach that consists of a three-step test which would effectively guarantee the protection of fundamental rights. The article concludes by arguing that if English Courts were to follow this new approach, departing from LM and L and P, they would effectively implement the protection of fundamental rights in EAW procedures.

Make the Choice: Why the Seat Should Govern An Arbitration Award's Enforceability

The English Supreme Court recently managed to produce an impeccably reasoned and utterly wrong decision on arbitration and the law applicable to the arbitral agreement.

Impartiality and independence: fundamental and fluid

Abstract In this article, the author discusses the paradox between the fundamentality of arbitrator impartiality and independence and the fluidity of the applicable norms. These norms differ over time and place, and vary depending on the type of arbitration, the stage of the proceedings and the applicable rules and laws. While standards applicable to judges have some relevance for this discussion, they cannot be equated with the standards for arbitrators. The recent English Supreme Court decision in Halliburton v Chubb is used to illustrate various aspects of the discussion.

The Pro-Patent Holder Approach in Unwired V. Huawei in Interpreting the ‘Fair, Reasonable and Non- Discriminatory’ Rule for the Licensing of Standard Essential Patents

The English Supreme Court case of Unwired Planet International Ltd v. Huawei Technologies (UK) Co Ltd demonstrated a pro-patent holder approach when interpreting the ‘fair, reasonable and non-discriminatory’ (‘FRAND’) rule/ undertaking. This article argues that this is a welcomed decision, because this approach pays due regard to commercial reality and the commercial needs of the patent holder. Understanding this approach is very important, because it helps in applying the rule. This approach also vitally provides more certainty by supplementing the existing, yet limited and vague, guidance on the interpretation of this rule. Furthermore, this comment rebuts the concern that the Court may have demoted the usefulness of the ‘non-discriminatory’ limb by allowing differential pricing. It is argued that this approach is both legally correct and makes practical sense. The impact of differential pricing to prospective licensees should not be over-exaggerated. English Supreme Court case, Unwired Planet International Ltd v. Huawei Technologies (UK) Co Ltd, patents

An In-Depth Analysis on the Conflicting Decisions in Dallah v. Pakistan: Same Law, Same Principles, Different Decisions

Arbitration is an alternative, to litigation, form of private dispute resolution, a judicial determination by an independent third party to whom the disputing parties agree to hand over their power to decide the dispute to the arbitrator(s). The 'core' merit of arbitration is the international enforceability of its awards by virtue of the Convention on Recognition and Enforcement of Foreign Arbitral Awards 1958 ('The New York Convention'). In line with the NY Convention, an arbitral award is 'portable' and can be enforced to the contracting States simply and without formality. The international applicability of commercial arbitration has inevitably raised questions of conflict of laws or even questions of conflicting decisions based on the same law. The most prominent example of conflicting decisions stemming from the application of the same principles is the case of Dallah v Pakistan which has commanded immense attention in the international arbitration community. In a continued astonishing series of events, the English Supreme Court and the French Cour d'Appel reached contrary decisions on the enforcement of an international arbitral award, despite the application of the same law to the same facts. The focus of this article is to examine in-depth the legal proceedings accrued in Dallah, identify the questions raised and the reasoning of the Courts, including the Tribunal's reasoning, and expose the reasons why the Supreme Court and the Cour d'Appel, whilst considering the same facts and applying the same principles, arrived at such antithetical decisions.

The Operational Obligation under Article 2 of the European Convention on Human Rights and Challenges for Coherence – Views from the English Supreme Court and Strasbourg

The European Court of Human Rights and the English Supreme Court have expanded the scope of the positive obligation to protect the right to life under art 2 of the Convention. A question of particular concern for public authorities is the extent to which negligent conduct may fall within art 2. Strasbourg principles relating to standing for victims, as well heads of damage (just satisfaction), are more generous than the Fatal Accidents Act 1976 in the UK. The art 2 obligation also mandates consideration of matters which would not be regarded as justiciable under the English common law. This article provides a critique of recent developments in the case law under art 2, both at Strasbourg and in the English Supreme Court, and draws out the consequent challenges for coherence in English law.

The New Law of Piercing the Corporate Veil in the UK

In a seminal judgement in 2013, Prest v Petrodel, the English Supreme Court clarified the law of piercing the corporate veil. This had become necessary because, in a growing number of cases, attempts were made to circumvent the separate personality and limited liability of companies. However, it is well known that English company lawyers were never really fond of piercing the corporate veil. The Supreme Court even went so far as to call the existence of the doctrine into question altogether in VTB Capital. Soon after VTB Capital, however, Prest apparently confirmed the existence of the doctrine. It also made an effort to deliver the long missing rationale for piercing the veil by spelling out the “evasion principle” as opposed to the “concealment principle”. However, this rationale is extremely narrow and leaves only two classical cases (Jones v Lipman and Gilford Motors v Horne) as good law. Moreover, Prest curtailed the scope of piercing the veil even further. By introducing a “rule of last resort”, it turned it into an exceptional remedy that will hardly ever apply in practice. Arguably, under that rule, it would not even have applied in the very cases that are supposed to carry the principle. Moreover, the justices of the Supreme Court take very different views on the doctrine of piercing the veil as a remedy. In a subsequent judgement in another Gramsci case, the Court of Appeal went so far as to deny any clear rationale. This raises the question where the law on piercing the veil stands today. Therefore, we will interpret the will of the Justices as the oracles of the law (sub II). After that, we will subject it to critical analysis (sub III). Then, we will conclude (sub VI).

Legislation and Case Notes: Rescuing Uncertain Leases in English Law: A Study in Compatibility for Transplantation

The common law rule that requires certainty in the terminus of leasehold estates has been the subject of trenchant criticism even as it has been upheld repeatedly by the courts. In Berrisford v. Mexfield Housing Co-operative Ltd [2011] 3W.L.R 1091, the English Supreme Court has once again upheld the rule but has suggested that its harshness may be tempered by two different techniques. This note studies the viability of these techniques in Singapore and questions if the rule may be too severely criticised.

Vicarious Liability ‘On the Move’: The English Supreme Court and Enterprise Liability

Vicarious Liability ‘On the Move’: The English Supreme Court and Enterprise Liability

Third Parties in International Commercial Arbitration by Stavros L. Brekoulakis

The matter of Third Parties in arbitration is perhaps at the tip to the apex of the convergence of the theory and practice in international arbitration. The practical workings of many a multi-entity dispute, across different legal traditions, laws, principles and institutional rules is a most rugged landscape which steadfastly defies any cohesive analysis. But Dr Stavros Berkoulakis of the School of International Commercial Arbitration at Queen Mary, University of London makes a most valiant attempt to make order of this terrain. His book is not about multi-party arbitration per se but about the very wide and pervasive issue concerning third parties and how arbitration impacts on them. It is self-evident from several important recent cases that the work is of contemporaneous relevance and will be for years to come. For much of 2011, it was thought that the English Supreme Court's decision in Dallah Real Estate and Tourism Holding...

The Rule-Making Authority in the English Supreme Court

The Rule-Making Authority in the English Supreme Court

The Rule-Making Authority in the English Supreme Court

The Rule-Making Authority in the English Supreme Court

The Rule-Making Authority in the English Supreme Court

The Rule-Making Authority in the English Supreme Court

The Rule-Making Authority in the English Supreme Court

The Rule-Making Authority in the English Supreme Court

The Rule-Making Authority in the English Supreme Court

The Rule-Making Authority in the English Supreme Court