United Kingdom Courts Research Articles

„Brexito“ įtaka arbitražui: anti suit injunction ir investicinio arbitražo aspektai

Concentrating on a few material aspects in relation to the broader theme, the article analyses the effect of Brexit on international commercial arbitration. In particular, the piece firstly treats on the most recent UK Case Law in relation to anti-suit injunction – a phenomenon attributable to the Common Law in the context of the earlier European Union courts’ jurisprudence of the said instrument. Secondly, Brexit’s interplay with the ongoing global investment arbitration reform is considered. The article considers the globally recognised UN 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, on which Brexit had no adverse effect. When analysing the interplay between Brexit and the ongoing global investment arbitration reform, a particular regard is paid to the lack of investment arbitration provisions in the UK-EU Trade and Cooperation Agreement, as well as the termination of various relevant bilateral investment treaties. The article concludes that the influence of arbitration shall continue to grow, anti-suit injunction shall continue to be applied by the United Kingdom courts, and the Brexit’s interplay with the global investment protection overall and the investment arbitration in a particular reform is somewhat consistent.

Evaluation and comparison of sensitivity of alcohol biomarkers PEth, EtG and EtPa in civil cases in England 2022–2023

This study details trends in direct alcohol biomarker concentrations from civil cases within the United Kingdom (UK). Our subject cohort in this study related to family law litigation, where an individual was subject to an alcohol monitoring order by the court. This monitoring was conducted by quantification of alcohol biomarkers Phosphatidlyethanol (PEth) in dried blood spots (DBS) and Ethyl Glucuronide (EtG) and Ethyl Palmitate (EtPa) from hair segments. In total 298 PEth cases predominantly from the South East of England during the period July 2022 to August 2023 were analysed for alcohol biomarkers in DBS and hair. Subjects alcohol intake was classified as abstinence/low alcohol consumption, moderate or excessive alcohol consumption, based on a combination of Society for Hair Testing and PEth Net guidelines. Our results indicate that 33 % of PEth concentrations were consistent with excessive alcohol use (>200 ng/mL DBS), with 36 % consistent with social or moderate alcohol use (20–200 ng/mL DBS). In relation to EtG and EtPa 23 % and 31 % of subjects were classified as excessive alcohol users respectively. This study indicates that DBS sampling of PEth is a more sensitive predictor of alcohol use, in particular, at differentiating between moderate and excessive alcohol use compared to EtG and EtPa testing in hair. The authors suggest that increased frequency in the sampling of PEth in DBS (multiple occasions per month) may provide a more accurate assessment and simplification of the interpretation criteria of alcohol patterns rather than the combined hair testing and DBS sampling that are typically requested by UK courts.

A study on the regulation of digital platforms and the need or excess in the employment relationship

The purpose of this article is to identify how the principles of labor law and the requirements of the employment relationship were applied to the case of the United Kingdom Court in which it recognized an employment relationship for Uber drivers and in a diametrically opposed decision of an Interlocutory Appeal in an appeal filed by the claimant, the 4th panel of the TST recognized the impossibility of a link between the driver and technological platforms. Thus, this article intends to raise the aspirations of Brazilian society in not wanting to import foreign laws anymore, without due analysis by the competent regulatory bodies, running the risk of these regulatory decisions not bringing any benefit to Brazilian society. The developed research adopts a basic review method on Digital Platforms, Uberization and Employment Relationship Requirements, where the procedure used was bibliographical research. As a result, we conclude that the objectives of this research are achieved by demonstrating that innovation has removed 85% of the world's population from extreme poverty in 200 years, which provokes reflections in the reader public on excessive regulation of innovation, if in fact there is a need more regulation, as we have enough tools to correct market failures.

INTERNATIONAL LAW BEFORE UNITED KINGDOM COURTS: A QUIET REVOLUTION

AbstractIn the 36 years since Francis Mann published Foreign Affairs in English Courts, the engagement of the United Kingdom courts with issues of international law has greatly increased. This article addresses the reasons underlying this trend and identifies four key developments: first, the nature of international law has evolved to embrace individuals as subjects; second, the Human Rights Act 1998 has had a profound influence, often requiring domestic courts to rule on matters of international law in order to give effect to the European Convention on Human Rights; third, in recent decades there has been a growing willingness on the part of courts in the United Kingdom to address and investigate the conduct of foreign States and issues of public international law; and fourth, these developments have been accompanied by a shift in attitudes to the relationship between customary international law and the common law.

The Prospective (Ir)Relevance of Section 3 of the Human Rights Act: A Comparative Perspective

Abstract This article suggests that the power conferred on United Kingdom courts by section 3(1) of the Human Rights Act 1998 (UKHRA) is legitimate as a matter of the interpretation of that provision. It sets out a contextual approach to the interpretation of section 3(1) consistent with general principles of statutory interpretation. This differs from most analyses of this provision, whether comparative or jurisdiction-specific, which tend to use constitutional theory as the framework for analysis. The article adopts a comparative perspective, applying the same approach to section 6 of the New Zealand Bill of Rights Act 1990 (NZBORA). It concludes that the approach of New Zealand courts to section 6 is also correct as a matter of the interpretation of that provision. The different approaches of United Kingdom and New Zealand courts to these equivalent provisions is explained by a number of important differences between the UKHRA and NZBORA; including especially the context in which each statute falls to be interpreted. Some implications of this analysis for the development of the principle of legality in the United Kingdom in the event of repeal of section 3(1) of the UKHRA are briefly identified.

The Two Sides of the Title Retention Clauses: The Caterpillar Case

Contracts term of commercial sale of goods have a ‘title retention clause’, preventing the transfer of ownership till the seller is fully paid. The unpaid seller gets the right to repossess the goods from the buyer. Exigencies of businesses have led to introduction of further clauses allowing the buyer to use or sub-sell the goods even before the transfer of ownership. The United Kingdom Court of Appeal judgment in the Caterpillar Case brings out the effects of the contradictions of a title retention clause qualified by the right of the buyer to use or sub-sell.

(Grossly) disproportionate sentences: Can charters of rights make a difference?

A comparison between United Kingdom (UK) and Australian law concerning grossly disproportionate sentences indicates that human rights charters and/or other strong human rights guarantees in a jurisdiction can produce improved protections for offenders against penal populism. While the relevant Australian case law suggests that there are virtually no restrictions on the state’s ability to enact mandatory sentencing laws in those jurisdictions without a charter of rights, the UK and Strasbourg courts have now made it clear that grossly disproportionate sentences cannot be imposed compatibly with art 3 of the European Convention on Human Rights (‘ECH R’), and that mandatory sentencing schemes are particularly likely to produce breaches of that article. When further developing the law in this area, the UK courts and the European Court of Human Rights (ECtHR) should learn from the relevant North American jurisprudence, avoiding the excessively deferential approach evident in many of those authorities and embracing the Canadian Supreme Court’s more interventionist stance recently in The Queen and Attorney General of Canada v Nur and Charles (‘Nur’). In turn, Nur provides further evidence that, when they are armed with a charter of rights, the courts can make a difference if they are courageous enough to do so.

Asserting personal jurisdiction over non-resident class members: comparative insights for the United Kingdom

The opt-out class action involves a unique participant, viz, the absent class member whose claim is prosecuted by a representative claimant, who does not opt-out of the action nor do anything else in relation to it, and yet who is bound by its outcome. In a cross-border class action, the means by which a domestic court may validly assert personal jurisdiction over absent class members who are resident outside of that court’s jurisdiction remains perhaps the single biggest conundrum in modern class actions jurisprudence. The United Kingdom (UK) legislature requires that non-resident class members compulsorily opt-in to the UK’s competition law class action, in order to demonstrably signify their consent to the jurisdiction of the UK court. However, that legislative enactment is unusual, and becoming even rarer, in modern class actions statutes. The comparative analysis undertaken in this article demonstrates that where that type of statutory provision is not enacted, then the judicially-developed “anchors” by which to assert personal jurisdiction over non-resident class members are multifarious, diverse, and conflicting, across the leading class actions jurisdictions. This landscape yields important lessons for UK law-makers, and strongly suggests that the UK legislature’s approach towards non-resident class members represents “best practice”, in what is a complex conundrum of class actions law.

‘I Lost My Job over a Facebook Post: Was that Fair?’ Discipline and Dismissal for Social Media Activity

Is it fair to be dismissed for social media activity, and are there any limitations to the employer’s managerial prerogative? These are the questions that this article addresses by examining the compatibility of discipline or dismissal with human rights law, with a primary focus on United Kingdom (UK) and European human rights law. It argues that UK courts and tribunals erroneously accept the lawfulness of such dismissals most of the time. This is due both to weaknesses in the English law of unfair dismissal, and to courts’ and tribunals’ limited engagement with human rights at work. Technical aspects of social media usage, with which courts and tribunals are often unfamiliar, add a further layer of complexity. Two factors make dismissals for social media activity particularly challenging for courts: first, the fact that social media are online platforms that everyone can potentially access, and hence public rather than private space; second, that expression on social media, often spontaneous and thoughtless, is not viewed as a particularly valuable form of speech. The argument of the article is that both the right to private life and the right to free speech are implicated in dismissals for social media activity, and that they should be viewed as lawful in very limited occasions, for employers should not have the right to censor the moral, political and other views and preferences of their employees even if it causes business harm.

Restrictive Foreign Sovereign Immunity in the United Kingdom (UK): A Welcome Development in International Commercial Transactions

The doctrine of absolute foreign State immunity to a great degree, appeared to stifle commercial transactions between contracting State parties and the private sector. Statute and earlier case law both attest to the absolute immunity of foreign States from the English courts’ jurisdiction. However, latter dicta of the English courts under the UK State Immunity Act 1978 (SIA 1978), successfully made a distinction between instances where a State’s actions were wholly of governmental character and some actions of the government that appeared commercial in nature, with basically features, similar to normal commercial transactions entered into by private individuals and companies. This paper, after a careful and painstaking overview of recent cases, concludes that the drift towards restrictive foreign State immunity by the English courts with respect to commercial transactions entered into by States, is a healthy development that carries the advantage of creating greater transparency, which in turn gives assurance to private individuals and companies that the State could be held liable for a breach of its commercial contractual obligations. Without this development, governments such as the Chinese government, which is basically operating as a “commercial/business conglomerate”, can argue State immunity in disputes involving commercial transactions entered into between the Chinese government and the private sector. This research, would in no small way, encourage private individuals and companies to enter into commercial transactions with sovereign States without hesitation, safe in the knowledge that the UK courts, are ready and willing to hold contracting State parties in commercial transactions, accountable.

Judicial cooperation in environmental matters

The need to ensure a uniform interpretation and effective application of the large corpus of EU environmental regulation in the jurisdictions of the Member States remains a task of pivotal importance for the Court of Justice of the European Union (CJEU). A quick look at the CURIA database reveals that many judgments are handed down every year to clarify the meaning of EU environmental provisions. It is therefore important to study the proper functioning of the tandem composed of the CJEU and the national courts in this field of EU law. In that sense, this article responds to Bogojević’s call ‘to draw a grander map of judicial dialogues initiated across various Member States’. More specifically, the topic investigated by this article is how the United Kingdom (UK) courts have followed up on responses received from the CJEU to their preliminary reference requests in the field of EU environmental law, from the UK’s accession in 1972 until January 2017. All the cases we have retrieved from the UK show various degrees of willingness to cooperate with the CJEU. This article highlights the existence of three trends: full cooperation, fragmented cooperation and presumed cooperation.

Do Singapore’s Group Relief Rules Breach the Non-Discrimination Article in the Singapore-United Kingdom Income Tax Treaty?

In this article, the author examines the relationship between the group relief rules under Singapore’s domestic income tax law and the non-discrimination rules in the Singapore-United Kingdom Income Tax Treaty. He submits that the group relief rules are in breach of article 25(3) and 25(1) of the treaty – the so-called “foreign ownership” and “nationality” paragraphs, based on article 24(5) and 24(1), respectively, of the OECD Model Tax Convention, but that article 25(5) of the United Kingdom treaty absolves Singapore from the breach in both instances. The article closely examines the text of the treaty, the OECD Commentary on Article 24 of the OECD Model, the United Kingdom Court of Appeal decision in FCE Bank plc v. Revenue and Customs Commissioners, and Singapore’s position (first published in 2014) on the non-discrimination article.

DNAR: Discuss not attempting resuscitation

The June 2014 United Kingdom court judgement Tracey v Cambridge University Hospital & Others established an obligation to discuss DNAR (Do Not Attempt Resuscitation) orders with patients. Not discussing a DNAR decision was found to be a violation of Article 8 of the European Convention on Human Rights. 1 Tracey v Cambridge University Hospitals NHS Foundation Trust and Others EWCA Civ 822. 2014: 27 Google Scholar Anecdotal evidence in our hospital suggested we are not discussing DNAR orders with all patients particularly those with dementia.

The Right to a Fair Trial in Criminal Proceedings and the United Kingdom Courts’ Recognition of Foreign Convictions from non-eu Member States

This article discusses three cases from China, India and Morocco in which courts in the United Kingdom have considered the issue of previous convictions for the purposes of sentencing and considering the issue of whether the accused is of bad character. The author highlights the different approaches taken by the different courts and argues that there is a need for guidelines to be developed for courts to follow in deciding whether or not to admit convictions from courts outside the European Union. This would strengthen the accused’s rights to a fair trial in criminal proceedings.

EU Aviation Law before the English Courts: Dawson, Huzar, and Regulation 261/2004

The early summer of 2014 has seen a series of high-profile judicial decisions by senior United Kingdom courts in the field of EU aviation law. The present article explores two decisions on the interpretation and application of the Air Passenger Rights Regulation 261/2004, analysing them with particular emphasis on their relationship with existing CJEU precedent and their economic and operational impacts on carriers. In Huzar v. Jet2.com, the Court of Appeal ruled that the extraordinary circumstances defence in Article 5(3) of the Regulation had to be interpreted narrowly, and did not extend to technical defects arising in the ordinary operation of a carrier's activity. Dawson v. Thomson Airways, handed down in the subsequent week, rejected the airline's contention that claims under the EU Regulation should be limited to two years, in accordance with the relevant provisions of the Montreal Convention. A third section turns to the shifting enforcement landscape, highlighting in particular the curious role of the NEBs' Draft List of Extraordinary Circumstances, and the role of the Civil Aviation Authority in enforcing air passengers' rights.

The Immunity of International Organizations in the United Kingdom

This article analyses how the immunities of international organizations have been treated in the United Kingdom. It describes how the United Kingdom has approached the privileges and immunities of the international organizations to which it plays host and how the United Kingdom has framed these privileges and immunities in domestic legislation. This article further addresses how United Kingdom courts have treated immunities, and demonstrates that national courts have been cognisant of the importance of upholding the privileges and immunities of international organizations.

The Supreme Court of the United Kingdom and English Court Judgements

The Supreme Court of the United Kingdom, which heard its first case in 2009, replaced the Appellate Committee of the House of Lords (sections II and III of this paper). The Supreme Court’s decisions will be binding on all lowers civil and criminal courts in England and Wales and Northern Ireland, and on Scottish civil courts if the appeal emanates from Scotland. The Supreme Court controls its own case load. It decides fundamental questions concerning judge-made law (the 'Common Law', including the auxiliary body of substantive and remedial law known as 'Equity') and questions arising from statute, including human rights legislation and points of European law and European human rights law. But there are powers of extra-territorial recourse to the Court of Justice of the European Union in Luxembourg (matters governed by the European Union) and by the European Court of Human Rights in Strasbourg (concerning the European Convention on Human Rights). Section IV addresses the problem of excessively long judgments (the problem is exacerbated, as noted in section V, by the tendency for appeal judgments in the British appeal courts, including the Supreme Court, to contain separate judgments by the different members of the relevant tribunal). Section VI examines the occasional difficulty arising from the advocates’ joint decision to confine their submissions to particular legal issues and to refuse to open up for decision wider legal issues, even though those matters are relevant to the dispute and ripe for judicial exposition or re-examination.

THE GOD “DILUTION”? RELIGION, DISCRIMINATION AND THE CASE FOR REASONABLE ACCOMMODATION

AbstractAnti-discrimination complaints by religious employees have constructed seemingly intractable conflicts. The United Kingdom courts have resolved these disputes by diluting individual religious liberty, particularly when determining questions of disadvantage and proportionality under indirect discrimination. This article explores an alternative UK anti-discrimination claim route for religious employees, namely an employer duty of reasonable accommodation. A comparative analysis outlines the corresponding Canadian duty. This model is applied to UK employment cases featuring indirect religious discrimination, specifically those claims which formed the recent applications inEweida and Others v UK. It is suggested that adoption of the Canadian model be considered: its nuanced approach to proportionality is particularly instructive. Whilst such a UK duty could prove controversial, it would cohere with both normative theory in law and religion and conceptual understanding of anti-discrimination law. Moreover, reasonable accommodation's individualised focus should be acclaimed; it need not compromise collective notions of religious liberty.

Counter-Terrorism and European Human Rights since 9/11: The United Kingdom Experience

This article explores the ways in and routes through which European human rights norms (Convention Rights) have had some shaping effect on United Kingdom counter-terror powers since 9/11. It considers decisions of the European Court of Human Rights in Gillan v. United Kingdom,A and Others v. United Kingdom, Othman (Abu Qatada) v. United Kingdom and Babar Ahmad and Others v. United Kingdom, as well as a range of United Kingdom court decisions on control orders and deportation with assurances. In doing so, it casts light on a developing but still fragile human rights' culture in the United Kingdom and identifies European human rights norms as at their most influential when in line with other political imperatives.

Kerpow! The United Kingdom Courts, West Tankers, and the Arbitration ‘Exception’ in the Brussels I Regulation

Abstract: On 24 January 2012, the Court of Appeal for England and Wales upheld the decision by the High Court to grant leave for the enforcement of the arbitral award issued in favour of West Tankers against Erg and its insurers, Allianz and Generali. The conciseness of the ruling is in sharp contrast with its relevance. By allowing, in an almost matter-of-fact way, the enforceability in principle of the award, the Court of Appeal has almost certainly set in motion the next chapter in the long-running West Tankers litigation. At stake are the exact boundaries of the rule that excludes arbitration from the 'Brussels I' or 'Jurisdiction' Regulation (JR). Résumé: Le 24 janvier 2012, la Cour d'Appel d'Angleterre et du Pays de Galles a confirmé la décision de la Haute Cour d'autoriser l'exécution de la sentence arbitrale prononcée en faveur de West Tankers contre Erg et ses assureurs, Allianz et Generali [1]. La concision de la décision contraste nettement avec sa pertinence. En permettant, d'une manière presque pragmatique, l'exécution de principe de la sentence arbitrale, la Cour d'Appel a entamé de manière presque certaine le prochain chapitre de la longue procédure West Tankers. L'enjeu, ce sont les limites exactes de la règle qui exclut l'arbitrage dans 'Bruxelles I' ou le Règlement sur la competence judiciaire ('Jurisdiction Regulation' ou 'JR'). Zusammenfassung: Am 24. Januar 2012 bestätigte der Court of Appeal für England und Wales die Entscheidung des High Court's , die Vollstreckung des Schiedsspruchs zu Gunsten von West Tankers im Rechtsstreit mit Erg und seinen Versicherern, Allianz und Generali, zu gestatten. Die geringe Aufmerksamkeit die der Gerichtsentscheidung zu Teil wurde, steht in einem deutlichen Widerspruch zu ihrer Bedeutung. In einer beinahe als gegebene Tatsache hinnehmenden Art und Weise erlaubte der Court of Appeal die Vollstreckung des Schiedsspruchs und eröffnete damit so gut wie sicher das nächste Kapitel des langwierigen West Tankers-Rechtsstreits. In Frage stehen die genauen Grenzen der Vorschrift bezüglich des Ausschlusses schiedgerichtlicher Verfahren der Brüssel-I-Verordnung (beziehungsweise der Verordnung über die gerichtliche Zuständigkeit).