SPBILF
Private Law Prize

The conferral of this truly global academic award is intended as a testimony of its winner’s ultimate academic excellence, while the cash prize component is meant to advance the realization of the laureate’s ideas of worldwide significance.

Unparalleled in the intellectual depth of its contending papers, the authority of its Expert Committee, and the size of the cash reward offered, the SPBILF Private Law Prize has all the makings of becoming to the international community of legal professionals as prestigious as the Nobel Prize. It is our hope that the fulfilment of the ideas put forward by the winners of the St. Petersburg International Legal Forum Private Law Prize will contribute to making this a better world, a world with more justice.

  • 10 000 000РThe financial award amounts to 10 million rubles

Expert Committee

The scholars on the Expert Committee of the St. Petersburg International Legal Forum Private Law Prize are eminent members of the international legal community. These academics set the course of modern science of law.

2018 Prize

8 works were included in the shortlist
The Lex Mercatoria in Theory and Practice
The Lex Mercatoria in Theory and Practice
AuthorOrsolya Toth
Orsolya Toth
Orsolya
Toth

Education

2012: Doctor of Philosophy in Law (DPhil), Keble College, University of Oxford, Oxford (UK)
2007: Master of Philosophy in Law (MPhil), Keble College, University of Oxford, Oxford (UK)
2004: Magister Juris in European and Comparative Law (MJur), Keble College, University of Oxford, Oxford (UK)
LLB in Law, Eotvos Lorand University of Sciences, Faculty of Law, Budapest (Hungary)

Position: Assistant Professor in Commercial Law, the University of Nottingham, Nottingham (UK)

The book engages in the debate about the so-called ‘lex mercatoria’ by offering a theoretically justified and pragmatic account. It tests the proposition that the lex mercatoria is a universal, a-national, autonomous legal system developed spontaneously by merchants. The book evaluates the existing explanations of the lex mercatoria and argues that the most promising account considers it to consist solely of unwritten trade usage. The work extends the discussion of the topic to public international law and jurisprudence. It draws parallels with customary international law and examines the circularity paradox of opinio juris. The book considers the notion of social rules and evaluates the function of primary and secondary rules within a legal system to explain how normative practices develop within a business community and become rules of ‘a-national law’. After the theoretical clarification, the book offers a pragmatic model which adopts a ‘two-element’ approach to the lex mercatoria. It argues that a lex mercatoria rule emerges when (i) congruent majority conduct is followed out of a (ii) critical reflective attitude by the majority within a business community. Based on this model, the book discusses conflict of laws issues and makes proposals on how parties and arbitrators may select the lex mercatoria as the governing law with greater certainty. The work examines the evidentiary process of how these two elements may be proved in arbitration or in court proceedings where a trade usage must be established. The book finally considers the documentary and witness evidence available to prove a lex mercatoria rule.

The analysis in the book proceeds in four stages. First, it evaluates the existing accounts of the lex mercatoria and selects the most promising concept. Second, it develops the framework and central categories of the proposed account. Third, it opens up the discourse to public international law and jurisprudence. Fourth, it examines practical issues of choosing the lex mercatoria as the governing law and the proof of a lex mercatoria rule.

The discussion is based on three underlying arguments. First, the book argues that the inquiry must focus both on the factual existence and the legal recognition of the lex mercatoria. These dimensions are often confused in the current debate. Second, the work submits that the analysis must adopt a paradigm-shift to help us grasp a-national law. If we continue to tie our understanding of law to the nation state, it will be impossible to examine a-national law. Third, the book argues that the lex mercatoria is a pragmatic concept the purpose of which is to facilitate commercial practice. Accordingly, the analysis seeks to serve a practical purpose.

The first stage of the inquiry argues that the discourse suffers from three key deficiencies. First, there is an overwhelming advocatory style amongst commentators to the detriment of analytical arguments. Second, the debate is fraught with terminological confusions. Finally, the discourse remains isolated from public international law and jurisprudence which are areas of great importance. After critically evaluating the main existing views of the lex mercatoria, the book argues that the most desirable concept is the so-called purist view, which submits that the lex mercatoria consists solely of unwritten trade usage. The purist view adopts an analytical approach and remedies the isolation of the debate by considering the circularity paradox of opinio juris.

In the second phase, the book develops the purist view to map out the framework for the proposed account of the lex mercatoria. It clarifies the meaning and norm-creating potential of the ‘international business community’. The book submits that the ‘international business community’ should be perceived as a group of individual businessmen. It argues in favour of a de-localised business community organised along the various industries, rather than on a territorial basis. Group members create lex mercatoria rules through their conduct and can cross geographical boundaries. The emerging rules are thus truly ‘a-national’. In addition, this phase of the analysis discusses the meaning of ‘trade usage’ and argues that it should mean spontaneous conduct-based rules, rather than contract terms. The work clarifies the distinction between ‘domestic usage’, ‘international trade usage’ and proposes a new meaning for ‘a-national usage’.

The third stage of the book opens up the lex mercatoria discourse to public international law and jurisprudence. It first analyses a ‘rule’ of the lex mercatoria by focusing on the latter of its two elements: (i) conduct and (ii) opinio juris. The function of opinio juris is to distinguish between non-normative and normative conduct, however, the concept is controversial because it leads to a circularity or chronological paradox. Commercial practice raises parallel issues when mere habits must be distinguished from a legal rule on the market. Public international lawyers have suggested various ‘solutions’ to the paradox, by keeping only one element or deriving custom from consent. The book argues that the two-element approach should be preserved and developed in the lex mercatoria context. It proposes a distinction between opinio juris in the pre-rule phase and the post-rule phase respectively to offer a chronologically linear model of customary law formation.

The discussion then extends to jurisprudence and analyses a ‘rule’ of the lex mercatoria by focusing on the former of its two elements: (i) conduct and (ii) opinio juris. It examines normativity in the context of written law and unwritten law to illuminate conduct-based rules. It discusses validity and efficacy, and the notions of ‘is’ and ‘ought’. The book argues that a disjunctive approach is required towards conduct, similarly to opinio juris. Conduct in the pre-rule phase should be distinguished from conduct in the post-rule phase. This offers a linear model which resolves the chronological or circularity paradox. The book submits that custom necessarily involves an empirical paradox which should not be ‘resolved’.

The third stage concludes by examining the lex mercatoria as an autonomous a-national ‘legal system’. It explores secondary rules within the lex mercatoria and argues that a lex mercatoria rule is recognised if (i) conduct and (ii) opinio juris (critical reflective attitude) emerge, which constitutes the rule of recognition. Although the secondary rules of the lex mercatoria are ‘deficient’, they allow the lex mercatoria to operate as a-national law.

Finally, the fourth stage of the analysis addresses selected practical issues. The book examines the lex mercatoria as the governing law in arbitration and evaluates the status quo by reviewing arbitral awards. The application of the lex mercatoria currently depends on whether the arbitrators are enthusiasts or sceptics of the concept, which undermines the certainty of the choice of law process. The book makes suggestions to increase the predictability of choosing the lex mercatoria as the governing law by relying on the proposed theoretical model.

The practical discussion ends by examining issues of establishing a lex mercatoria rule in commercial practice. The analysis is relevant in arbitration where the lex mercatoria applies and in court proceedings where trade usages must be established. The status of usages is currently unsettled in practice. In addition, witness evidence often contains an ‘opinion’ on the existence of a usage which manifests the circularity paradox of opinio juris. The work looks closely at the two elements of a lex mercatoria rule: (i) congruent majority conduct followed out of a (ii) critical reflective attitude by the majority on the market. It submits that if the evidentiary process focuses on these factual criteria, that will increase legal certainty.

The book indicates areas where further debate may be expected in the future. Undoubtedly, the proposed model leaves scope for future arguments. It remains to be seen whether and to what extent parties and arbitrators will be more willing to select and apply the lex mercatoria. If the book prompts analytical counter-arguments in the discourse, it will have achieved its aim.

Publisher
OUP Oxford
ISBN
978-0199685721
Publication year
2017
Pages
368
Language
English
Trademark and Unfair Competition Conflicts
Trademark and Unfair Competition Conflicts
AuthorTim Dornis
Tim Dornis
Tim
Dornis

Education

2014: University of Zurich Law School, Zurich, Switzerland. Habilitation (post-doctoral); venia legendi awarded for private law, international private law, comparative law, commercial and economic law, and intellectual property law.
2009: Stanford Law School, Stanford, USA. JSM (SPILS Fellow).
2005: Eberhard Karls University, Tuebingen, Germany. Dr. iur. (PhD equivalent), highest distinction (summa cum laude)
2003: Columbia University School of Law, New York, USA. LLM, highest distinction (James Kent Scholar).
2001: Circuit Court of Stuttgart, Stuttgart, Germany.
1999: Eberhard Karls University, Tuebingen, Germany

Position: Professor at the Faculty of Law, Leuphana University of Luneburg (Germany)

Professional experience
2011-current: Professor of law, Leuphana University, Lueneburg (Germany)
2016, 2017: Visiting professor, Università di Verona, Department of Law (Italy)
2015: Professor of law, University of Leipzig (Juristenfakultaet/School of Law), Leipzig (Germany)
2011: Hauser Global Law School, NYU, New York (USA)
2006-2011: Judge (special competencies: IP, banking, and insurance law), District Court of Stuttgart, Stuttgart (Germany)
2004-2006: Attorney-at-law (IP law and litigation), Gleiss Lutz, Stuttgart (Germany)
2003-2004: Assistant professor of law, University of Augsburg, Augsburg (Germany)
1999-2001: Law clerk, District Court of Tuebingen, Tuebingen (Germany)

In recent decades, socioeconomic globalization has gained enormous momentum. Inter- national communication as well as trade and commerce have multiplied. Most im- portantly, the rise of the internet has made cross-border marketing an everyday affair. While this phenomenon has generally made life much more convenient, it has also brought a number of downsides, especially concerning the regulation of transnational communication and transacting.

With respect to trademark and unfair competition law, the extension of marketplaces has led to a rise in cross-border collisions between trademarks and trade names, as well as conflicts between countries’ unfair competition policies. The fact that a trademark’s appearance on a website can be accessed from anywhere on the planet means that, at least in theory, infringement claims can emanate from innumerable jurisdictions. But the issue is not only a question of individual rights protection and private-party interest balancing. Lawmakers and courts find themselves increasingly confronted with a basic conundrum arising from disputes over international commercial activities: the conflict between economics and politics, nation-state egoism, and inter-nation cooperation and coordination. In today’s globalized world, the “market,” it seems, has acquired an exist- ence of its own—one that is beyond the state and its territorial regulatory order. As a consequence, policy makers must choose between two opposing paradigms. The first is to rely on the territoriality of rights and laws. This option, although often avoiding a conflict of interests between countries, leads to underprotection in many cases. The se- cond option is to embrace transnational marketplace regulation by extending countries’ legislative domain beyond their national borders. This path, however, bears a risk of in- ternational discord, for if all countries insisted on extraterritorial rights protection, we would ultimately find ourselves in a Hobbesian bellum omnium contra omnes.

Problems of this kind have been debated for a long time, far before the advent of digital communications and expedited international trade. But our understanding of the field’s economic and legal fundaments is still woefully incomplete. Just to mention the most evident gaps: First, the history of trademark and unfair competition law has received in- sufficient attention, particularly concerning the differences between common-law and civil-law regimes. Not surprisingly, therefore, the evolution of different national re- gimes toward an international convergence of legal structures has been widely ne- glected. In addition, the interrelation between substantive-law policies and conflicts law or choice of law is seldom explored. Instead, most analyses of international trademark and unfair competition disputes are limited to formal issues of conflicts law and choice- of-law doctrine. Finally, questions of public international law and international comity have traditionally been unexplored since the field’s connection to international eco- nomic and regulatory law is still largely overlooked.

In order to fill these gaps, this book starts with a historical-comparative account in chap- ters 1 and 2, focusing on American and European law. The United States is the world’s largest common-law jurisdiction, and its trademark and unfair competition doctrine and conflicts law is representative of other common-law systems in many respects. In addi- tion, the long-time American penchant for international market regulation through the extension of domestic rights and policies makes it an apt object of investigation. Mean- while, the laws of the European Union and Germany (as Europe’s largest civil-law ju- risdiction) present themselves as logical counterparts. Representative of the civil law tradition, the continental choice of law is often considered the formalistic and rule-based antithesis to the American conflicts approach. Chapter 3 complements this portrayal of legal history by analyzing the most influential theoretical and scholarly contributions to the field and summarizing the main defects of current theory on trademark and unfair competition conflicts law. Chapter 4 employs a functionalist-comparative lens to ana- lyze the underlying policies of trademark protection and unfair competition prevention. With the aim of providing guidance for a modernized concept of jurisdictional self-re- straint, Chapter 5 then analyzes the limitations of public international law and the prin- ciples of international comity. These five chapters provide the basis for chapter 6’s pro- posal concerning a policy-oriented and comity-based reconceptualization of the field’s conflicts doctrine.

At a broader level, the book shows that trademark and unfair competition conflicts law and choice of law is representative of a phenomenon that is often evoked in many sec- tors of the law but that is nowhere as near advanced and so emblematically evolved as here: the functional convergence of legal orders toward a truly transnational law. This convergence is most striking at the level of substantive law. Under virtually all modern regimes of trademark protection and unfair competition prevention—which are, inter alia, founded on the public-international-law foundations of international IP conven- tions—the market-information infrastructure is considered the most basic and important subject matter of protection. It is this transnationally uniform substantive-law infrastruc- ture that offers the foundation for an internationally harmonized conflicts and choice-of- law doctrine. Indeed, this proves that, as German choice-of-law genius Franz Kahn prophesied in 1898, conflicts law and choice of law must be built on a convergent archi- tecture of substantive-law functions and policies—anything else would be akin to “set- ting a spire into the vacuous air.” It is in this regard that the book’s all-encompassing analysis of substantive-law structure, choice-of-law mechanics, and the economic un- derpinnings and public-international-law context of the field helps demonstrate how trademark and unfair competition conflicts law is a typical example—a pars pro toto, so to speak—of a powerfully convergent trend toward a transnational doctrine of interna- tional economic and regulatory law.

Publisher
Cambridge University Press
ISBN
978-1107155060
Publication year
2017
Pages
802
Language
English
Accessory Liability
Accessory Liability
AuthorPaul S Davies
Paul S Davies
Paul
S Davies

Education

2017: Doctor of Philosophy, University of Cambridge (UK)
2007-2010: Inns of Court School of Law: Bar Vocational Course. Very Competent. Lord Denning Scholar of Lincoln’s Inn.
2002-2007: Downing College, University of Cambridge: MA (Hons) Oriental Studies and Law Starred First in both Part IB and Part II Law.
2005-2006: Facultė de Droit, Universitė de Poitiers, France (ERASMUS exchange). Diplôme d’études juridiques françaises, mention très bien (highest mark).

Position: Professor of Commercial Law, University College London, London (UK)

Professional experience
2017-current: Professor of Commercial Law, University College London, London (UK)
2015-current: Academic Associate, Maitland Chambers
2013-2017: Associate Professor in Law, Oxford University; Fellow and Tutor, St Catherine’s College, Oxford (UK)
2014-2016: Visiting Professor, KU Leuven.
2008-2013: Fellow and College Lecturer in Law, Gonville and Caius College, Cambridge; Affiliated Lecturer and then Newton Trust Lecturer, University of Cambridge, Cambridge (UK)
2007-2008: Research Assistant to the Property, Trust and Family Law Team, Law Commission of England and Wales.

‘Accessory liability’ involves fundamental issues of responsibility, causation and justice. Complications concerning accessories are to be found in every area of the law, whether the defendant’s liability is accessorial to a breach of fiduciary duty, to a breach of contract, or to a tort, for example. But each such area of the law has tended to be examined as a discrete topic, isolated from how accessory liability operates in neighbouring parts of the legal landscape. This book aims to reverse that trend.

The comparative neglect of accessory liability in the law of obligations is both surprising and undeserved. Accessory liability is of great practical importance, and also has a moral core to justify its existence. For example, in his Nobel Lecture, the Russian writer Aleksandr Solzhenitsyn said: ‘And the simple step of a simple courageous man is not to take part in the lie, not to support deceit. Let the lie come into the world, even dominate the world, but not through me’.1

For accessory liability to arise, a ‘primary wrong’ must first be established: this may be the breach of an equitable obligation, breach of contract, or a tort. The person who commits this primary wrong can be called a ‘primary wrongdoer’. It must then be shown that the accessory did something in relation to the primary wrong (the conduct element) and was at fault in some way (the mental element).

In every area of the civil law, instances of accessory liability tend to be subsumed within larger umbrella headings which cover not only accessory liability but also other forms of liability which rest upon different principles: ‘third party liability’ in equity (encompassing recipient liability); the ‘economic torts’ where the primary wrong is a breach of contract; ‘joint tortfeasance’ in tort. These headings are prone to mislead and give rise to confusion. This book argues that it would be better to look across the private law, and have a general heading of ‘accessory liability’. An insistence upon examining the private law by reference to discrete subjects—such as equity, contract and tort—may fail to illuminate the key principles underpinning liability. However, by looking at particular themes in the law of obligations, lessons already learned in analogous areas are more readily assimilated. Accessorial liability regarding a breach of contract seems much more closely related to accessorial liability regarding a breach of fiduciary duty than to the ‘economic tort’ of intentionally causing loss by unlawful means, for example. It is helpful to recognise this explicitly.

A major argument of the book is that similar principles underpin the imposition of liability upon an accessory regardless of the nature of the primary wrong: the protection of the victim’s rights, the culpability of the defendant, and the potential effect of liability upon a party’s freedom of action are all consistently important concerns. Moreover, issues regarding the remedies available against accessories, and what defences they may have, appear similar in each area of the law. Much is to be gained from looking beyond the confines of ‘tort’, ‘contract’ and ‘equity’ and across to neighbouring areas in order to ensure a coherent means of analysing and then tackling problems regarding accessories.

Chapter one is an introductory chapter which sets out the importance and scope of the book. Chapter two examines the key terms and concepts which are used in every area of the law. It is important to do this at the outset: the same language should have the same meaning regardless of the particular nature of the primary wrong. It is both confusing and unnecessarily complex for the same terms to have different meanings in different domains of the law. Chapter two also highlights the principal possible conduct and mental elements which might provide the foundations for accessory liability in the private law. Chapter three then provides a brief survey of how accessory liability operates in the criminal sphere. Although this might be considered to be somewhat tangential to the core, private law focus of this book, accessory liability has been analysed much more extensively in the criminal law; important lessons might be drawn in appropriate circumstances from the criminal experience, as is highlighted in subsequent chapters.

Chapters four to six contain a detailed analysis of accessory liability in the law of obligations which shows how the fundamental concepts described in chapter two are employed when the primary wrong is a breach of equitable duty (chapter four), breach of contract (chapter five), or a tort (chapter six). In each chapter, the current law is discussed before the rationales and appropriate shape of accessory liability are considered. The book consistently argues that knowingly assisting a wrong is itself wrong.

It is necessary to consider equity, contract and tort in separate chapters in order to illustrate how legal doctrine has developed into its present state. But chapters four, five and six only go as far as establishing the conduct and mental elements which might ground a claim against an accessory and lead to prima facie liability. There may still be defences available to the defendant, and these are discussed in chapter seven with reference to the entirety of the law of obligations. Similarly, the remedies available to claimants who bring private law claims against accessories are considered in chapter eight, and similarities across the traditional boundaries of the law of obligations highlighted. Finally, chapter nine offers some conclusions regarding accessory liability.

Publisher
Hart Publishing
ISBN
978-1849462877
Publication year
2015
Pages
330
Language
English
Il Contratto di Affidamento Fiduciario
Il Contratto di Affidamento Fiduciario
AuthorMaurizio Lupoi
Maurizio Lupoi
Maurizio
Lupoi

Education

1964: graduation with distinction from the Law School of the University of Rome La Sapienza, Rome (Italy)
1964-1965: a degree in comparative law in Oxford University, Oxford (UK)
Study courses in France, Great Britain and the USA.

Position: Professor honoris causa of the University of Genoa, Genoa (Italy)

Professional experience
2012-current: Professor honoris causa of the University of Genoa, Genoa (Italy)
2012-current: The President of the special state Court for Trusts and Fiduciary Relations of the Republic of San Marino
2003-current: Visiting Professor, University College London, London (UK)
1999-current: The President of the Association “Il Trust in Italia”
1966-current: a member of the collegium of advocates of Rome
Scientific Advisor of the Journal “Trust e Attivita Fiduciarie”
Member of the Editorial Board of the Journals: Trust Law International; Journal of International Trust and Corporate Planning; Trusts & Trustees
1999-2012: The President of the Association «Gino Gorla for the Study of Extra-Statutory Sources of Law»
1997-2012: ordinary professor of the University of Genoa, Genoa (Italy)
1970-1984: ordinary professor of the University of Perugia, Perugia (Italy)
1972-1982: The General Secretary of the Italian Association of Comparative Law
1968-1969: assistant professor and then associated professor of comparative law in the University of Rome La Sapienza, Rome (Italy)
Former Vice-President and Member of the Executive Committee of the International Academy of Estate and Trust Law, and a Former Member of the Ministerial Commission for the Reform of International Private Law.

This book fits within the civil law interest in trusts of the last two decades, attested by the frequent enactment of new legislation in civil law countries (for instance, Argentina, Soviet Union, Spain, France, Hungary, Rumania, Malta, San Marino, Luxembourg) that aims at creating civil law equivalents to the common law trust. However, the author of this book is convinced that legislation is not necessary to achieve that purpose because civil law systems already possess the required components (the author devoted other studies to prove the civil law origins of trust, see his CV).

The author’s analysis turns on Italian law, to which the book is dedicated, and moves from an empirical research on Italian case law relating to fiduciary agreements, generally couched in terms that show their indebtedness to the Pandectist classical theory of the fiduciary agreement (“fiduziarische Geschäft”). The author’s research is centred on the interests underlying fiduciary agreements in order to understand what commercial and social life expects of them (part I of the book).

The author has written extensively on trusts. When he highlights what the reasons for the recognized superiority of trusts over civil law institutions are he impliedly draws on the conclusions reached elsewhere. Those reasons must be replicated in civil law terms and within the civil law tradition -rather than aping common law principles and even terminology- if a viable and efficient structure is to be devised for a civil law country.

Therefore, part II of the book proposes the structure of a type of contract, the “contratto di affidamento fiduciario” as the author of the book has defined it (it can be translated as “the Entrustment Contract”). All the elements that characterize the Entrustment Contract derive from established civil law principles or are compatible with them even if they are not to be found all at the same time in any civil law contract.

Trusts are of course not contracts while the theme of the book concerns a contract. In Italian law a contract requires a cause and the cause of an the Entrustment Contract is its programme. Trusts do not usually mention any programme to be performed by the trustee, Entrustment Contracts do. That has far-reaching effects, as will be seen presently.

The performance of contracts is usually protected by an action that allows the performing party to terminate the contract because of a breach committed by the other party but that will not apply to Entrustment Contracts and the terms of the contract will make it clear: under the terms of the contract the entruster, who corresponds to the settlor of a trust, shall waive his right to sue the fiduciary for termination in case of breach (that does not affect the action for damages).

There is a fundamental reason for this, that takes us to the heart of the Entrustment Contract, namely, the sanctity of the contractual programme. If the contract should be terminated, so woud the programme – a consequence that would range the interests underlying the contract in the wrong order. The performance of the contract, that is, the implementation of the contractual programme is all that matters in the author’s view, therefore a breach by the fiduciary has to dealt with by removing the fiduciary without terminating the contract. Not only that, for the implementation of the programme would be jeopardized also by any form of litigation. Litigation would involve losses of time and money to the detriment of the programme, therefore the fiduciary shall have to be removed without resorting to any judicial proceeding. Another key feature of the Entrustment Contract thus appears, loosely modeled on the German concept of Ermächtigung, the authority granted by the fiduciary to the entruster or to a third party (the “protector” of the contract) to remove the fiduciary and to transfer to a new fiduciary the assets entrusted to the former fiduciary. The “removal” is in law an assignment executed by the person holding the powers stemming from the authorization, exactly as if the fiduciary himself assigned the contract to a third party.

The ownership of the assets for the implementation of the programme (“the entrusted fund”) are actually transferred by the settlor to the fiduciary and stand in the name of the fiduciary but he cannot reap any benefit from them. One could then say that they are not “his”. In order to make this effective against the fiduciary’s personal creditors and third parties generally the fiduciary has to follow the rules that in Italian law protect the assets deposited or anyhow in possession of someone who is not their owner. This is how civil law systems would implement what in common law systems is the distinction between equitable and legal ownership.

The heirs of a fiduciary take nothing from him, for the entrusted assets shall move on to a new fiduciary, appointed according to the rules laid down in the contract for this purpose. As to the death of the entruster, the contract may provide that his powers descend on to his heirs or to a third party, mentioned in the contract itself or to be appointed later. In either instance a significant role may be played by the protector of the contract, a disinterested party who shall hold the appropriate powers according to the Entrustment Contract.

The contractual programme may benefit a variety of subjects, of which the entruster may be one. The range of benefits is almost limitless and some benefits may accrue in the course of the performance of the contract, others at its end. The book shows that the beneficiaries of an Entrustment Contract do not share a common legal position; for instance, one or more of them might be parties to the contract (something without any correspondence in trust law) while others might be no more than names in a list who would or would not receive advantages from the contract at the discretion of the fiduciary.

The book shows several examples of Entrustment Contracts to cope with fact-situations that would otherwise be governed by one form or another of existing contracts; in each instance the superior efficiency of the Entrustment Contract is detected without difficulty."

Publisher
Giuffrè editore
ISBN
9788814189845
Publication year
2014
Pages
500
Language
Italian
The Europeanisation of English Tort Law
The Europeanisation of English Tort Law
AuthorPaula Giliker
Paula Giliker
Paula
Giliker

Education

1994: PhD from Trinity College Cambridge, Cambridge (UK)
1990: BCL Second Class from St Hilda’s College Oxford, Oxford (UK)
1989: BA (Hons) in Jurisprudence First Class from St Hilda’s College Oxford, Oxford (UK)

Position: Professor of Comparative Law at the University of Bristol (UK)

Professional experience
2008: Professor of Comparative Law at the University of Bristol (UK)
Previously Law Fellow and CUF Lecturer at the University of Oxford.
2008: Appointed Chair in Comparative Law

English tort law is often used as the prime exemplar of common law reasoning. Legal philosopher, Neil MacCormick relied on the leading tort case of Donoghue v Stevenson as arunning example in his work, Legal Reasoning and Legal Theory (1978). Tort law, for example, is case- (not statute or code) based. Its key principles bear the imprint of a historical development divorced from the reception of Roman law into Continental Europe. It is judgemade law, which reflects both the common law legal tradition and a domestic notion of civil wrongs interpreted over time by the English courts.

Yet the common law has been subject to external influences, notably from 1973 the introduction of European Union law (following the UK joining the then EEC), and, from 2000, the implementation of the Human Rights Act 1998, which brings into UK law human rights protected by the European Convention on Human Rights (ECHR). While some attention has been paid to the impact of the 1998 Act on the law of torts, little attention has been paid to that of EU law or, more comprehensively, the impact of such changes on the legal reasoning of the common law courts. A glance at any English tort textbook would indicate that little, if any, attention has been paid to the European origins of certain aspects of tort law. Equally, EU textbooks focus on sources of EU law rather than their implementation at national level. The Europeanisation of English Tort Law is therefore unique in filling a gap in legal analysis. For the first time it brings together the common law of tort and EU and European human rights law and seeks to understand legal changes from the perspective of comparative law. It has been described by reviewers as “an ambitious and challenging piece of comparative law scholarship” and “an excellent examination of an under-theorised facet of the law”.

The book has two main aims: to identify sources of law in the domestic tort law system which are of European origin and to consider more broadly the consequences of introducing these new sources of law into the English common law legal tradition. Giliker, a Professor of Comparative law specialising in European private law and author of a leading English Tort textbook, is ideally placed to analyse whether exposure to EU and European human rights law has changed the character of English tort law and created a divide from other common law legal systems (excluding Ireland). The analysis requires expertise in tort law, common and civil law reasoning, EU law and European human rights law and bears the imprint of such learning. The book examines the nature of legal development and how an area of law seen as typically English has been changed by exposure to civil law influences in EU law and the rights-based culture of the ECHR. Such analysis is all the more important and timely in 2017 when the UK is seeking to leave the European Union (Brexit) and the government is attempting to introduce legislation which determines how to deal with EU law already within the UK legal system in the controversial European Union (Withdrawal) Bill.

Over seven chapters, Giliker examines what we mean by the ‘Europeanisation’ of tort law, its impact on legal reasoning in creating new sources of law and requiring the ‘transplantation’ of non-common law rules and rights into the common law system, the substantive changes introduced by EU law into the law of tort and the creation of a new tort of State liability for breach of EU law, together with an examination of the reaction of the English courts to the Human Rights Act 1998 both in reshaping public authority liability and the tort of defamation and, perhaps most surprisingly, in the creation of a new tort protecting certain privacy rights. While chapter 2 examines fundamental changes in legal reasoning, in chapter 3, Giliker deconstructs English tort law and identifies the often hidden sources of EU law which have introduced new rights for UK citizens. The impact of the Product Liability Directive 85/374/EEC may be well-known, but other directives, notably in the field of health and safety in the workplace, motor vehicle accidents and the internet, have led to changes to the law without clear recognition of their EU origins. This risks an incorrect interpretation of the law. Giliker identifies that the problem lies in the method of transposition. The Consumer Protection Act 1987, which implements the Product Liability Directive, is unusual in expressly referring to the Directive. In most cases, EU legislation is implemented by secondary legislation and the European origins of the law are all but forgotten. Giliker, in examining the English courts’ treatment of the 1987 Act, highlights that even in areas where the EU source is well-known, more traditional forms of common law reasoning still dominate. Chapter 4 on the creation of a new tort by the Court of Justice of the European Union (commonly known as Francovich liability after the leading case) finds similar responses – a lack of interest from domestic tort lawyers who dismiss it as “EU” or “public” law, an attempt by common law judges to anglicise its application and an unsatisfactory debate how to “fit” the new tort into the existing list of nominate torts. In both cases, Giliker highlights the uneasy relationship between the CJEU, the European Commission and the national courts in ensuring the correct interpretation and application of EU law and the inability of Arts 258 and 250 TFEU and Köbler liability (State liability for the acts of the judiciary) to regulate this process satisfactorily. The book raises questions, therefore, relating to the operation of European law more generally.

Chapters 5 and 6 question whether a European culture of rights has entered English tort law by virtue of the Human Rights Act 1998. Giliker considers developments in the torts of defamation, negligence, trespass to the person, nuisance, together with statutory claims under the 1998 Act, in highlighting the interaction between the 1998 Act and tort law claims and identifies why, to the surprise of many, the dramatic changes to the law of tort predicted in 2000 have failed to result. This, she contrasts, with the emergence of a tort protecting the Art. 8 ECHR right to privacy in Chapter 6. In explaining why a restrictive approach is taken in the rest of tort law but an exception made for privacy – confined, however, to the protection of informational privacy – Giliker again identifies the characteristics which lie at the heart of the common law of tort and render resistance to a rights-based focus inevitable.

The final chapter underlines the most ambitious aim of the book which is to encourage English tort lawyers (including judges) to take a less conservative stance on the relationship between domestic and European tort law and engage more positively in the opportunities for improving English tort law provided by EU and European human rights law. In particular, she advocates a new approach to Europeanisation, arguing for greater openness, changes to education and an improved dialogue between judges, lawyers and academics. The foreword, written by the Rt Hon Lord Mance, Deputy President of the UK Supreme Court, is encouraging in this respect in acknowledging the need for change and significant contribution made by this book.

Over the past 40 years, the common law of England and Wales has been subject to European influences as a result of the introduction of the European Communities Act 1972 and, more recently, the implementation of the Human Rights Act 1998 in October 2000. EU Directives have led to changes to the law relating to product liability, health and safety in the workplace, and defamation, while Francovich liability introduces a new tort imposing State liability for breach of EU law. The 1998 Act has led to developments in privacy law and made the courts reconsider their approach to public authority liability and freedom of expression in defamation law. The Europeanisation of English Tort Law for the first time addresses these developments and combines detailed analysis of the law, explanation of changes to legal reasoning and the doctrine of precedent with a strong advocacy of the need to recognise and understand change. Despite Brexit, EU law in force in March 2019 will remain part of UK law and the Human Rights Act 1998 continues to apply. In the light of current political events, the importance of this work can only continue to grow, representing an original and ground-breaking contribution to private and comparative law scholarship.

Publisher
Bloomsbury Publishing plc
ISBN
978-1849463195
Publication year
2014
Pages
264
Language
English
Money Awards in Contract Law
Money Awards in Contract Law
AuthorDavid Winterton
David Winterton
David
Winterton

Education

2011: DPhil (Law) Oxon, Oxford (UK)
2008: MPhil (Law) Oxon, Oxford (UK)
2006: BCL (Distinction) Oxon, Oxford (UK)
2005: BSc/LLB (Hons equivalent) UNSW, Sydney (Australia)

Position: Lecturer in Law, University of New South Wales, Sydney (Australia)

Professional experience
2011: Admitted as a Solicitor to the Supreme Court of New South Wales, Sydney (Australia)
2006: Admitted to the New York Bar, New York (USA)
2016-2017: Lecturer in Law, UNSW, Sydney (Australia), Academic Visitor at Oxford Faculty of Law, Oxford (UK)

Abstract:

The longstanding, guiding principle for the assessment of damages for breach of contract was articulated by Parke B in Robinson v Harman (1848) 1 Exch 850. There his Honour famously stated that: ‘where a party sustains a loss by reason of a breach of contract, he is, so far as money can do it, to be placed in the same situation, with respect to damages, as if the contract had been performed’. It is accordingly often said that contractual damages awards seek to ‘compensate’ the promisee for the ‘loss’ this party has suffered due to the promisor’s breach. But statements like this leave unspecified whether such awards aim merely to neutralize the eventual deterioration in the non-breaching party’s balance sheet position that is causally attributable to the breach or instead aim to enforce (or ‘vindicate’) the promisee’s legal right to performance by providing some kind of monetary substitute for the what has not been provided, irrespective of what detrimental consequences can be causally attributed to the breach. In Commonwealth jurisdictions, it seems to be generally assumed that the former of these interpretations is correct. The principal purpose of this book is to argue against this conventional view and in favour of a particular version of the latter interpretation. The thesis presented is that there are in fact two distinct kinds of award that may be made in accordance with the aforementioned ‘Robinson v Harman principle’: an award for the cost of substitute performance and an award designed to make good certain detrimental consequences of non-performance. In presenting this thesis, the book decouples these two different claims, explaining their nature and basis, as well as the different restrictions applicable to each of them.

Synopsis:

The book is divided into three Parts. Part I outlines English law’s generally accepted orthodoxy concerning the assessment of contractual money awards and explains the problems with it. The purpose of Chapter One is simply to outline the orthodox account in sufficient detail for the critique of this view that follows in Chapters Two and Three. As is explained, the Robinson v Harman principle’s conventional interpretation is that the object of contractual damages awards is simply to make good certain detrimental financial consequences that the non-breaching party can causally attribute to the relevant breach. However, an interrogation of Parke B’s words reveals that his famous dictum is in fact indeterminate both as regards the underlying purpose of such awards and the scope of recoverable ‘loss’. Somewhat surprisingly, the first and most important of these indeterminacies is often overlooked with an exclusively consequence- focused interpretation of the principle typically assumed. Rectifying this oversight of course constitutes the main focus of the book as a whole. However, the other source of indeterminacy in Parke B’s words, which concerns precisely what consequences of a breach are potentially recoverable, provides the main focus of this specific chapter. In exploring this question, it is observed that English contract law’s has generally adopted a narrow conception of ‘loss’, but that more recently a broader understanding of ‘loss’ has been adopted, enabling the recovery of damages for harm to various non-pecuniary interests.

Chapters Two and Three challenge the orthodox account on doctrinal, conceptual and terminological grounds. The doctrinal challenge is mounted in Chapter Two, which catalogues the numerous instances in English law where a non-breaching party is awarded a sum of money that exceeds the detrimental consequences that this party can causally attribute to the relevant breach. After outlining some examples of damages awards that do not even purport to compensate for loss, the remainder of the chapter details the many cases where awards are made that purport to be ‘compensatory’ but manifestly fail accurately to reflect the financial deterioration in the non-breaching party’s position that are causally attributable to the breach. The challenges advanced against the accepted legal orthodoxy in Chapter Three are conceptual and terminological. The conceptual challenge is based on the difficulties associated with understanding the Robinson v Harman principle as a measure of ‘loss’. Understood in this way, this principle implicitly assumes the existence of a legal right to performance. The existence of this right raises the possibility that providing a monetary substitute for the performance not provided might actually be the more fundamental purpose of at least some contractual awards. Here it is also argued that the excessive focus on identifying a ‘loss’ to make good has skewed theoretical debates about contractual awards and inhibited an appreciation of the true position. Finally, this chapter seeks to highlight the ambiguous and inconsistent terminology plaguing this area of law, suggesting that these difficulties help explain the orthodox account’s persistence in the face of the doctrinal inaccuracy identified in Chapter Two. In place of this inadequate terminology, new definitions for various relevant legal concepts are proposed.

Part II of the book advances an alternative, bifurcated account of money awards upholding the Robinson v Harman principle. The foundations of this account are outlined in Chapter Four, which seeks first to defend the claim that English law recognises the existence of a right to contractual performance. This defence is based on highlighting the existence of various legal doctrines that assume the existence of such a right as well as by demonstrating the fallacy of contesting the existence of such a right on the basis of the limited availability of coercive orders such as those for the contract’s ‘specific performance’. This chapter also outlines the significant doctrinal support that exists in English law – both within the law of contract and elsewhere – for the proposed distinction between ‘substitutionary’ and ‘compensatory’ money awards and presents an account of the theoretical basis for this distinction based on the ‘continuity thesis’ recently advanced by Professor Gardner.

Chapter Five outlines the quantification and restriction of money awards that substitute for performance. On the particular account advanced, the aim of such an award is, where possible and where this party has, or will, become unconditionally entitled to the performance promised, to provide the non-breaching party with the cost of obtaining a close equivalent for the promised performance from elsewhere, via either rectification or market replacement. When, however, the promised performance can no longer be obtained or circumstances make it ‘unreasonable’ to insist upon obtaining it, the law should, and generally does, nevertheless endeavour to provide the non-breaching party with the next-best substitute for performance available. It is argued that the appropriate basis for quantifying such an award is generally an approximation of the price that a reasonable person in the non-breaching party’s position would accept to ‘release’ the breaching party from further performance at the date of breach. In addition, support in the case law for the award of both of these measures, as well as for a substitutionary interpretation of the ‘reasonableness’ restriction that limits claims for the cost of rectification, is outlined.

The focus of Chapter Six is on explaining the nature and content of money awards that make good certain detrimental consequences that the non-breaching party can causally attribute to the breach as well as the restrictions that limit these awards. The discussion commences by noting the significant academic controversy that exists with regard to the theoretical basis for such awards, before explaining that this debate operates at a higher level of theoretical abstraction from the doctrinal distinction proposed in this book, making it unnecessary to take a definite position within this debate here. Part II of the chapter then defends the proposed distinction by showing that the restrictions imposed on these ‘compensatory’ awards cannot be explained wholly by reference to the parties’ underlying agreement, which means that such awards cannot be understood as simply enforcing the non-breaching party’s primary right to performance. By contrast, it is argued that, when restricting ‘compensatory’ recovery, English law takes account of various considerations that are in fact extrinsic to the parties’ agreement.

Part III of the book contains two chapters, which each draw upon the new account presented in Part II to explain various difficult aspect of the decided case law. Chapter Seven demonstrates how the proposed distinction explains certain leading authorities that are difficult to reconcile with the accepted orthodoxy. This includes a close examination of the House of Lords’ important decisions in Ruxley Electronics & Construction Ltd v Forsyth [1996] AC 344 and Alfred McAlpine Construction Ltd v Panatown Ltd [2001] 1 AC 518, as well as the voluminous and difficult case law pertaining to contracts for the sale of goods. In this latter discussion, it is demonstrated, amongst other things, that the new account can explain both the High Court of Australia’s recent and exceedingly controversial decision in Clark v Macourt (2013) 253 CLR 1 and the House of Lords’ well-known and much discussed decision in British Westinghouse Electric & Manufacturing Co Ltd v Underground Electric Railways Co of London Ltd [1912] AC 673.

Finally, Chapter Eight explains certain features of the decided case law that might appear to be conflict with the new account, but which in fact are not. An important focus here is the House of Lords’ controversial decision in The Golden Victory [2007] 2 AC 353 and two more recent applications of the principle there enunciated in Leofelis v Lonsdale [2012] EWHC 485 (Ch D) and The Glory Wealth [2013] EWHC 3153 (Comm). Following this, attention turns to the difficult law concerning the relationship between specific performance, ‘mitigation’ and equitable awards in lieu of coercive relief. The principal objective here is to explain why the Canadian Supreme Court’s recent decision in Southcott Estates Inc. v Toronto Catholic District School Board (2012) SCC 51 and the House of Lords’ landmark ruling in Johnson v Agnew [1980] AC 367 are both consistent with the new account, and why this area of the law generally accords with the overall thesis presented.

Publisher
Hart Publishing
ISBN
978-1509917051
Publication year
2017
Pages
368
Language
English
Exclusive Jurisdiction in Intellectual Property
Exclusive Jurisdiction in Intellectual Property
AuthorBenedetta Ubertazzi
Benedetta Ubertazzi
Benedetta
Ubertazzi

Education

2007: Post-Ph.D. University of Padua, Padua (Italy)
2005: Ph.D. University of Padua, Padua (Italy)
2005: L.L.M. in Spanish Law. University of Valladolid, Valladolid (Spain)
2005: L.L.B. University of Valladolid, Valladolid (Spain)
1994: L.L.B. (hons) maxima cum laude, Catholic University of the Sacred Heart, Milan (Italy)

Position: Full Tenured Aggregate Professor, University of Milan-Bicocca School of Law, Milan (Italy)

Professional experience:
2015-current: Full Tenured Aggregate Professor, University of Milan-Bicocca School of Law, Milan (Italy)
2000-current: practicing attorney in the field of IP and EU law in the family law firm, Studio Ubertazzi, Milan (Italy)

This book argues that exclusive jurisdiction rules related to IPRs cases are not only insufficiently supported by any of the arguments usually invoked in their favor, but actually are contrary to the public international law rules on the avoidance of a denial of justice and on the fundamental human right of access to a court, and therefore should be abandoned with respect to infringement and validity claims involving either registered or unregistered IPRs, however raised.

Particularly, Chapter II conducts a comparative analysis of States’ practice related to international jurisdiction rules concerning cross-border validity and infringement claims however raised of registered and unregistered IPRs, highlighting the following. First, that the existent exclusive jurisdiction rules governing claims of infringement of registered and, in some cases, unregistered rights are not an expression of a customary international law rule. Second, that exclusive jurisdiction rules relating to registered IPRs validity issues principally raised are not expressions of customary law. Third, that with respect to registered IPRs validity issues principally raised, certain important countries such as China and Taiwan do not currently provide any exclusive jurisdiction rules in this respect. Finally, that with respect to registered IPRs validity issues principally raised, a clear trend exists in overcoming exclusive jurisdiction rules. Expressions of this trend include the ALI Principles and the Transparency Proposal.

Chapter III analyses the act of State and comity doctrine as a basis for exclusive jurisdiction rules in IPRs cross-border litigation cases, indicating the following. First, none of the arguments for extending the act of State and comity doctrines to IPRs are convincing: the act of state doctrine does not prevent courts from adjudicating foreign acts of states; IPRs are not an expression of the sovereignty of foreign governments; assuming jurisdiction over foreign IPRs claims is imposed by public international law; and the exercise of such jurisdiction does not prejudice the rights of foreign governments, corresponding to the citizens’ interests. Second, the question of extending the act of State and comity doctrines to IPRs cases is not suggested by public international law because public international law does not limit a State’s exercise of jurisdiction inside its borders, and because a strictly territorial conception of sovereignty and jurisdiction is nowadays abandoned. Finally, the question of extending the act of State and comity doctrine to IPRs cases is not only not suggested by public international law, but is actually contrary to this law because the rules on the act of State doctrine and comity are against the right of access to a court since they limit this right without meeting either the establishment by law, the legitimate aim or the proportionality requirements.

Chapter IV analyses the territoriality principle adopted as a basis for exclusive jurisdiction rules in IPRs cross-border litigation cases. Chapter IV principally determined that universal protection of IPRs cannot be achieved outside IP systems, namely by extending to IPRs infringements the universal jurisdiction related to the crime of piracy, human rights solutions, and the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects. Second, the universal protection of IPRs shall be achieved inside the IP systems. Third, the territoriality principle in the CUP, CUB, and TRIPs agreement as well as at the basis of other relevant norms expressly shaped as PIL rules does not impede the universal protection of IPRs inside the IP system: because it shall be interpreted as an expression of the proximity principle, as is supported by groups of rules deviating from the territoriality principle, namely the rules that adopt jurisdiction criteria which are not based on the territoriality principle, the rules that adopt connecting factors which are not based on the territoriality principle and the rules on the recognition and enforcement of foreign judgments that are not grounded on the territoriality principle. Fourth, the territoriality principle interpreted as an expression of the proximity principle mandates the abandoning of exclusive jurisdiction rules; the overcoming of the exclusive designation of the lex loci protectionis; and the overruling of the norms that impede the recognition and enforcement of foreign judgments concerning IPRs granted by States other than the ones of the rendering courts. Finally, with particular regard to exclusive jurisdictions, then, from a de lege lata perspective the PIL norms that ground exclusive jurisdiction in a specific court in relation to IPRs cases shall be interpreted as not impeding the granting of jurisdiction to a court other than the exclusively competent one, when the “alternative” court is more proximal to the concrete case than the “exclusively” competent court, and therefore allows a better allocation of jurisdiction. In contrast, from a de lege ferenda perspective, when the proposed interpretation of those rules is not possible they shall be overruled.

Chapter V analyses the eight alternative arguments invoked in support of exclusive jurisdiction rules, namely: the extension of the Moçambique rule to IPRs claims; the adoption of the double actionability rule in IPRs cases; the fact that the courts having exclusive jurisdiction are the only ones to grant sound administration of justice and judicial economy; the fact that the courts having exclusive jurisdiction are the best placed courts to adjudicate IPRs disputes; the impossibility of allocating jurisdiction to courts other than the exclusively designated ones by reason of the difficulty of applying foreign laws; the impossibility of allocating jurisdiction to courts other than the exclusively designated ones by reason of the impossibility of recognizing and enforcing judgments concerning foreign IPRs in the countries of registration; the impossibility of allocating jurisdiction to courts other than the exclusively designated ones by reason of the impossibility to amend national registers; and the inconvenience that derives from the adjudication of the case by courts other than those exclusively designated to exercise jurisdiction over foreign IPRs cases in issue in light of the forum non conveniens doctrine. Chapter V highlights that none of those eight ‘other arguments’ recalled in favour of exclusive jurisdiction rules are convincing, and cannot serve as a ground for exclusive jurisdiction rules.

Chapter VI analyses public international law rules of a universal and regional (EU/EFTA) nature as well as the national norms on the denial of justice and on the forum necessitatis, as well as the fundamental human right of access to a court. The chapter determined the following. First, exclusive jurisdiction rules imply a denial of justice because they allow courts to dismiss cases sufficiently linked to the forum State, and thus meeting the first connection requirement of the denial of justice/forum necessitatis rule, and because they require parties to address their claims in the courts of each of the foreign States where the IPRs had been granted in an unreasonable and ineffective way, and thereby meeting the second requirement of the denial of justice/forum necessitatis rule. Second, exclusive jurisdiction rules are contrary to the fundamental human right of access to the courts for the following reasons: sufficient and non-fortuitous links exist generally between the cases and the forum States. The restrictions are not established by a sufficiently clear law, but rather are grounded on implicit rationales suggested by public international law, which are alleged to exist. The restrictions do not pursue a legitimate aim since the purported aim is to comply with public international law, but public international law not only does not suggest implicit exclusive jurisdiction rules, but rather considers such rules as contrary to it. The restrictions are disproportionate to the aim pursued, concerning neither matters regarding immunity from jurisdiction nor cases presenting certain recognized peculiarities, and even impairing in its essence the right of access to courts, since on the one hand the parties do not have other means of recourse available in the forum State, and on the other hand, the means of recourse available to the parties outside the forum State imply a duplication of proceedings and, therefore, are ineffective. Finally, to avoid denial of justice and to safeguard the right of access to courts, States should follow three different, concurrent approaches, each of which leads to the same results. From a de lege ferenda perspective States should declare as unconstitutional or overrule their explicit exclusive jurisdiction provisions, and also revisit their case law according to which exclusive jurisdiction rules are implicitly suggested by public international law. From a de lege lata perspective States should adopt the private international law solution, searching for other rules of private international law that are different and prevailing over the rules that would otherwise lead to the declining of jurisdiction; finding these rules in forum necessitatis, which is a PIL rule and a general principle of law, and which therefore has a direct effect and prevails over exclusive jurisdiction rules (domestic or of the Brussels system); and adopting this forum and thus exercising jurisdiction by necessity despite exclusive jurisdiction provisions. From a de lege lata perspective, States should adopt the human rights solution, interpreting the right of access to courts as a general principle of law, and its primacy over the other international, European, and domestic rules on exclusive jurisdiction; recognizing that to decline jurisdiction by reason of exclusive jurisdiction rules would constitute a breach of the right of access to courts by a court; referring to this violation as the ground for not so acting, and therefore of not declining jurisdiction; and thus exercising jurisdiction despite exclusive jurisdiction provisions.

Publisher
Mohr Siebrek Ek; 1st edition
ISBN
978-3161519543
Publication year
2012
Pages
341
Language
English
Proof of Causation in Tort Law
Proof of Causation in Tort Law
AuthorAlexander Steel
Alexander Steel
Alexander
Steel

Education

2009-2012: PhD in Law, Corpus Christi College, University of Cambridge, Cambridge (UK)
2008-2009: Diploma in Legal Studies, Corpus Christi College, University of Cambridge, Cambridge (UK)
2005-2008: BA in Law, Corpus Christi College, University of Cambridge, Cambridge (UK)

Position: Associate Professor of Law, Oxford University, Oxford (UK)

Professional experience
2014 – current: Associate Professor of Law, Fellow and Tutor in Law, Wadham College, Oxford University, Oxford (UK)
2010-2014: Lecturer in Law, King’s College London, London (UK)
2010-2014: Bye Fellow in Law, Murray Edwards College, Cambridge (UK)

General overview

The general rule in virtually every tort law system is that the claimant must demonstrate a causal connection between the defendant’s conduct and the injury in respect of which the claimant seeks compensation. In English law, the claimant bears the burden of demonstrating this connection ‘on the balance of probabilities’: it must be shown to be more likely than not that a causal connection exists. However, many legal systems make exceptions to this general rule, allowing claimants to succeed in compensatory claims without proof of causation to the normally required standard of proof. Since all claims for substantial compensatory damages require, as a matter of substantive law, a causal connection to exist, the nature of the general rule and the scope of exceptions to it is a matter of considerable importance.

Proof of Causation in Tort Law critically examines the general rule and the exceptions made to it in English, French, and German law (and to a lesser extent in other common law jurisdictions). The inquiry is structured around three sets of problems to which the general rule and its exceptions give rise. These are: (1) conceptual problems; (2) consistency problems, and (3) normative problems.

The main conceptual problem in relation to the general rule concerns what is meant, precisely, by ‘proof’ of causation. All of the systems examined in the book refer to an idea of ‘probability’ in the formulations of their standards of proof. What is the nature of the probabilistic element in standards of proof? This question arises particularly in relation to proof of causation because courts are often faced with statistical evidence of causation. The conceptual difficulty is in understanding the extent to which such evidence, and probabilistic evidence more generally, is capable of satisfying legal standards of proof either itself or in combination with other evidence. Some courts find that statistical evidence on its own is not sufficiently ‘individualised’ or ‘particular’ to the case at hand. But the sense in which this is so is often obscure. The book argues that, under certain conditions, statistical evidence of causation can be sufficient to prove causation in an individual case.

The main problem of consistency is raised by the recognition of exceptional rules alongside the general rule. Here the question is whether any exceptional rule can rationally be contained within narrow limits or whether it undermines insistence upon the general rule in any case. For example, is it possible to justify a limited exception to proof of causation where it is impossible to determine which of a number of negligent actors, each of whom may have caused harm to the claimant, actually caused the claimant’s harm, without wholly undermining the general rule? The book argues that principled exceptions can be made, albeit it demonstrates that the current scope of exceptional rules in each system studied cannot be justified.

The general and exceptional rules give rise to two connected normative problems. First, there is the question of whether the general rule can be justified. The widespread recognition of some form of exceptional rule may be thought to challenge the normative foundations of the general rule. Perhaps the general rule is misguided: perhaps, for example, the burden of proof on causation ought generally to be on defendants. Second, there is the question of whether, if the general rule can be justified, its justifications allow for the possibility of exceptional rules being made.

The argument in outline

The book argues that the common law’s version of the general rule – the requirement that the claimant prove that the relevant aspect of the defendant’ s conduct was a cause of its injury on the balance of probabilities in order to obtain compensatory damages in respect of that injury – is generally justified. This rule best reflects the fact that a false negative on causation ought to be treated as approximately as bad as a false positive (Chapter 2).

It is also argued, however, that a limited set of exceptions to this rule can be justified. The situations in which an exception can be justified are two: (1) defendant indeterminacy (Chapter 4); and (2) claimant indeterminacy (Chapter 5). Consider, for example, defendant indeterminacy. Defendant indeterminacy situations are those in which the claimant has been the victim of a legal wrong, but it cannot be determined which of a number of persons, each of whom has unreasonably increased the risk of the injury suffered by the claimant, has in fact caused that injury relative to the usually required standard of proof. Chapter 4 makes three arguments in favour of an exception here: (i) that each defendant can usually be said either to have caused the claimant’s injury or caused the claimant to be unable to establish a legal claim in respect of that injury against the other defendants; (ii) that it would be more unjust to deny a remedy than to impose liability because the claimant in such cases faces an individual 100% risk of an injustice (i.e. there is a 100% risk of a false negative on causation faced by the claimant in these situations if no damages are awarded), while each defendant only faces an individual risk of injustice of a smaller amount (given that there are at least two defendants, the risk will usually be less than or equal to 50%); (iii) each defendant relies upon the others’ wrongdoing to evade responsibility, and allowing this evasion would be inconsistent with other areas of tort law.

In pursuing these arguments, the book engages in wide-ranging comparisons of the law in England, France, and Germany in relation to both the general rule and the exceptions. It shows that there are real differences in the standards of proof insisted upon in the different systems: the standard of proof in German law, for instance, is indeed higher than the balance of probabilities in relation to some causal questions. It also argues that each system’s set of exceptional rules cannot be justified in its current form: each system recognizes arbitrary limitations on the scope of its exceptional rules. Finally, the book (in Chapter 6) argues against claims for substantial loss-based damages in respect of lost chances, but shows that, as a matter of consistency, if a legal system accepts such claims in relation to lost economic chances, it should also recognize them in relation to lost chances of avoiding physical injuries.

Publisher
Cambridge University Press
ISBN
978-1107679856
Publication year
2017
Pages
462
Language
English
The Laureate of the 2018 SPBILF Private Law Prize
Победитель 2018 года
The Lex Mercatoria in Theory and Practice
Author
Orsolya Toth
nominated by
University of Nottingham
The Prize