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.
Nomination for the 2020 St. Petersburg International Legal Forum Private Law Prize is closed.
Professor, Faculty of Law, University of Victoria, CanadaMore
Elizabeth Adjin-Tettey is a Professor at the Faculty of Law, University of Victoria in Canada where she has been teaching since 1998. She served as Associate Dean, Administration and Research, 2010 - 2016.
Elizabeth’s teaching and research interests are in Torts; Remedies; and Insurance. She has published several articles and book chapters on these topics. She is co-author (with Cooper-Stephenson) of Personal Injury Damages in Canada, 3rd ed. (Thomson Reuters, 2018); (with Jamie Cassels) Remedies: The Law of Damages (Irwin Law); and Berryman et al, Remedies: Cases and Materials, 7th ed. (Emond Montgomery, 2016). She revised the Canadian Encyclopedic Digest, Insurance (Carswell, 2016).
Professor, Department of Civil Law, Faculty of Law, Lomonosov Moscow State University, Professor, Alexeev Private Law Research Centre under the President of the Russian FederationMore
Professor, Department of International Private Law, Russian School of Private Law.
Arbitrator of the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation, Arbitration at the Moscow Chamber of Commerce and Industry, Arbitration Commission at MICEX-RTS (Russian stock exchange), Arbitration at the Association of Russian Banks, Arbitration Centre at the National Chamber of Entrepreneurs of the Republic of Kazakhstan. He has taken part in the international arbitration proceedings under the Rules of UNCITRAL, International Chamber of Commerce (ICC), London Court of International Arbitration (LCIA), Vienna International Arbitral Centre (VIAC), Arbitration Institute at the Stockholm Chamber of Commerce (SCC).
Member of the Chartered Institute of Arbitrators (MCIArb), member of the Expert Council at the Arbitration Commission of the Russian National ICC Committee, member of the LCIA European Users’ Council.
Member of the Working Group at the Council for codification and improvement of the Russian civil legislation (section “International Private Law”), member of the Working Group responsible for drafting new edition of the ICAC Rules.
Member of the Editorial Board of the journal “International Commercial Arbitration Review”.
He has a broad experience of acting as an expert on Russian law in foreign courts and international commercial arbitration.
Area of research: international private law, including issues of international civil procedure and international commercial arbitration, corporate law and contract law.
Emeritus Professor of Comparative Law, Faculty of Law, Sapienza University of Rome, ItalyMore
"He is also former Director of the Institute of Comparative Law at the Faculty of Law, University of Rome I ""La Sapienza"" and former Director of the Center for Foreign and Comparative Law Studies, Rome.
He has been Consultant at the International Institute for the Unification of Private Law (UNIDROIT), Rome, since 1978. He is Founding Member of the Advisory Council of the United Nations Convention on Contracts for the International Sale of Goods and Editor in chief of the database UNILEX - International Case Law & Bibliography on the UN Convention on Contracts for the International Sale of Goods (CISG) and the UNIDROIT Principles of International Commercial Contracts. He was also Representative of Italy to the United Nations Commission on International Trade Law (UNCITRAL) in 1980-2000.
Professor Bonell is Titular Member of the International Academy of Comparative Law, Member of The American Law Institute, Corresponding Member of the Austrian Academy of Science. He has been awarded doctor honoris causa degree by University of Louvain-La-Neuve and University of Basel.
He pursues research on Contracts for the International Sale of Goods and UNIDROIT Principles of International Commercial Contracts.
I feel much honored to have been invited to participate in the Expert Committee
I suppose these features make the work elidgible for the short list : transcending national boundaries, scientific rigor, originality of approach and, last but not least, the use of the English language
Professor at the Faculty of Law and Political Science of the University of Montpellier, FranceMore
He joined the University of Montpellier, where he teaches civil law and comparative private law, in 1991. In 1994-1998, he was professor at the University of University of Reunion Island.
Professor Cabrillac is the head of private law section at his University. He is a renowned specialist in contract law, both in France and abroad. He is also an internationally recognized expert on codification and recodification of civil law. He is the author of numerous publications on codification and contract law. His monograph devoted to codification (“Les codifications”), was translated in several languages and published abroad. He is a frequent speaker at conferences in France and abroad.
Civil law, comparative law, theory of law (codification).
I think that it is important for the expert committee to have academics from many countries
There is no Nobel Prize for law and I hope that St Petersburg Law prize will become this prize
Aída Kemelmajer de Carlucci
Member of the National Academies of Law and Science of Buenos Aires and Córdoba, ArgentinaMore
Aída Kemelmajer de Carlucci is an Argentinean jurist, native of the province of Mendoza, where she was a member of the Supreme Court of Justice of that province. She holds a PhD in law from the University of Mendoza, is member of the National Academies of Law and Science of Buenos Aires and Córdoba and member of the National Committee of Ethic on Science and Technology. She is also honorary member of the Royal Academy of Jurisprudence and Legislation, Madrid, Spain.
In 2016 she received the Konex de Brillante Award as the most outstanding personality in the humanities of the last decade in Argentina, which is one of the highest distinctions given in Argentina for the activity of the social sciences.
FBA, QC (hon), Professor of Law and Legal Philosophy (Emeritus), University of Oxford, Biolchini Family Professor of Law, University of Notre Dame du Lac, The UKMore
Known for his work in moral, political and legal theory, as well as constitutional law, he joined the Notre Dame Law School faculty in 1995. At The University of Oxford he held the positions of lecturer, reader and a chaired professor in law for over four decades until 2010. In addition, he served as associate in law at the University of California at Berkeley (1965-66), as professor of law at the University of Malawi (Africa) (1976-78), and as the Huber Distinguished Visiting Professor of Law at the Boston College Law School (1993-94). He is admitted to the English Bar (Gray’s Inn).
He teaches courses in Jurisprudence, in the Social, Political and Legal Theory of Thomas Aquinas and in the Social, Political and Legal Theory of Shakespeare.
His service has included the Linacre [now the Anscombe] Centre for Health Care Ethics (governor since 1981), the Catholic Bishops’ Joint Committee on Bioethical Issues (1981-88), the International Theological Commission (1986-92), the Pontifical Council for Justice and Peace (1990-95), and the Pontifical Academy Pro Vita (2001-present). He has published widely in law, legal theory, moral and political philosophy, moral theology, and the history of the late Elizabethan era. He is an adjunct Professor in the Department of Philosophy at Notre Dame.
Former First President of the Court of Cassation of FranceMore
He is a French judge who was appointed to the highest judicial function of the French judiciary in 2007 and retired in 2014.
Prior to the appointment as First President of the Court of Cassation he worked as a judge and was, inter alia, the President of the Bordeaux Court, first President of Court of Appeal of Rouen and of the Court of Appeal of Versailles.
In 1977-1994, he was a lecturer at the University Paris II-Panthéon Assas.
In 2002 – 2006, he was a member of the SuperiorJjudiciary Council.
He is chevalier of the order of the Legion of Honor and of the National Order of Merit
He pursues research on a wide-ranging set of topics relating to procedural law and the role of the judge.
Claudia Lima Marques
Professor, Universidade Federal do Rio Grande do Sul in Porto Alegre, BrazilMore
Claudia Lima Marques is an expert in the fields of Consumer Law, Private Law and both Private and Public International Law. Having earned her Bachelor of Law at the Federal University of Rio Grande do Sul, she went on to study a Masters of Law at the University of Tübingen and a PhD. summa cum laude at the University of Heidelberg. Currently titular professor and coordinator of the post graduate Law Program of the Law School of UFRGS, Claudia holds a number of positions on national and international legal and consumer protection bodies. She has written and lectured extensively on private law, on conflicts of laws, over-indebtedness and consumer law issues and has published articles in Brazil, Argentina, Paraguay, Germany, Switzerland, Spain, UK and USA.
Professor of Tort Law and Deputy Head of School, University of Bristol, The UKMore
He joined the University of Bristol Law School in 2006 and was appointed Professor of Tort Law in 2008. From 2009 to 2013, while on extended leave from the Law School, he was Director of the Institute for European Tort Law in the Austrian Academy of Sciences. He previously held faculty positions at King’s College London (1988-99) and Cardiff University (1999-2006).
He is a member of the European Group on Tort Law (and leading its current project on public authority liability), the European Law Institute, and the American Law Institute (for which he is currently an Adviser on the Restatement Third of Torts: Economic Harm).
He pursues research on a wide-ranging set of topics relating to English, European and comparative tort law, and compensation for incapacity.
It was an honour to be invited to be a member of the prize jury, and the opportunity to acquaint myself with excellent private law scholarship from around the world was too good to miss
A Nobel Prize for Law would be fitting recognition of the original, innovative and significant research being done today by many, many legal scholars around the world
Professor of Private International and Transnational Law at the Maastricht University, Professor of Law at University of Antwerp, The NetherlandsMore
She joined the Faculty of Law of the Maastricht University in 2018 and she is a part-time professor in Antwerp. From 2002 to 2008, she taught private international law, international and comparative procedural law and law of the World Trade Organization as a full-time tenured professor at the University of Antwerp, Belgium. Between 2008 and 2017, she served as Secretary and then as First Secretary of the Hague Conference, combining the coordination of legislative and judiciary activities in the fields of international commercial and international procedural law with the supervision of negotiations on new treaties.
Since 2003, she has been a Member of the Groupe belge de Droit International Privé, which assisted with the development and assessment of the Belgian Code on Private International Law. In addition, Ms Pertegás worked as an ad hoc Consultant for the DG Justice and Home Affairs of the European Commission in relation to the Green Paper on Succession.
Marta Pertegás possesses an extensive knowledge of private international law and is a renowned expert in this field.
She pursues research on different aspects of international commercial law and international procedural law, intellectual property law, international family law.
I am a strong supporter of this initiative and really hope that it will keep attracting lawyers from diverse jurisdictions
It is a true honour and pleasure to work with some of the most eminent experts in the area of private international law in the world and I am humbled to have this opportunity of discussing selection process and submissions with them
The prize winners contribute to the advancement of the law as a scientific discipline
Enrico del Prato
Full Professor of Civil Law, Sapienza University of Rome, ItalyMore
Enrico del Prato (Rome, 1960) is a full professor of Private law at Sapienza University of Rome Law School, Dean of Law Department and member of the University Research Commission.
He is scientific supervisor of the Erasmus programme.
From 2002 to 2013, he taught Private and Civil law at Roma Tre University’s Political Science Department and, from 1992 to 2002, Civil law, Private law, and Family law at the University of Macerata Law School, where he was the Director of the Institute of Legal Exercises and the PhD program in Contract law.
He has participated in numerous inter-university research projects and PhDs and has lectured at many conferences in Italy and abroad, too numerous to mention.
He is Co-director of the following journals: Rivista Italiana per le Scienze Giuridiche and Annali della Società Italiana degli Studiosi del Diritto Civile.
He is a member of the scientific committees of the following journals: Giustizia civile, La nuova giurisprudenza civile commentata, Le nuove leggi civili commentate, Questioni di diritto di famiglia, Rivista di diritto privato, Rivista di biodiritto.
He is referee for different journals and book series. He is a member of the International Advisory Committee of the Collecciòn Observatorio de Derecho Civil (Peru).
He was a part of the commissions nominated by the Minister of Justice to reform the judicial system and the Code of Navigation (1994-95) and to implement the legislative decree to reform Company law (2001-03).
He was visiting professor at Hunan University, Changsha, China, (2011) and at Columbia University Law School, New York (2014).
He is member of the Specialist Commission of the Italian National Research Committee for generation, management and development of intellectual property rights in the C.N.R. (Italian National Research Committee).
He is member of the Sport Guarantee Commission of the C.O.N.I. (Italian National Olympic Committee).
He is Section President of the Film Review Commission.
A member of the Roman Bar since 1986, he is an appeals attorney.
He is author of eleven books and more than one hundred articles.
The prize is an important initiative and it is appropriate that an italian jurist gives his contribution
"Law is as necessary as literature or economy
The Prize work must be a work on general issues which can be useful everywhere and not only in a country or in a specific sector
Professor in the Department of Private Law at the University of Pretoria, South AfricaMore
Elsabe Schoeman is a professor in the Department of Private Law at the University of Pretoria. She holds the degrees BLC (Pret) LLB (cum laude) LLD (Unisa). The title of her LLD thesis is “Domicile and Jurisdiction as Criteria in External Conflict of Laws”. She is admitted as Advocate of the High Court of South Africa.
She joined the Department of Private Law in 2016. She was a member of the Law School at the University of Auckland (New Zealand) for fourteen years, where she served as Deputy Dean of the Faculty and Deputy Director of the cross-faculty Europe Institute. Before taking up her academic position at the University of Auckland in 2002, she spent a year at the Institut für internationales und ausländisches Privatrecht (University of Cologne) as an Alexander von Humboldt Fellow. Prior to that she was a professor in the Department of Jurisprudence at the University of South Africa. Her main areas of research are jurisdiction in cross-border civil and commercial litigation and choice of law in contract, delict/tort and selected areas of family law. She has made contributions to international legal encyclopaedias in her areas of interest, as well as submissions to law commissions (in South Africa and New Zealand) and she regularly advises law firms on transnational litigation in South Africa, New Zealand, Australia, the United Kingdom, the United States and Germany.
She teaches Law of Delict and Private International Law.
Honorary Professor of Civil Law and Civil Procedure, Leiden University, NetherlandsMore
Prof. Dr. Henricus ‘Henk’ Snijders is legal expert, advisor, author of books and articles. At present, Henk Snijders mainly acts and holds positions as: arbitrator (a.o. NAI, ICC, UNCITRAL, EDF and ad hoc non non-regulatory) and binding advisor (NAI and ad hoc); deputy judge in the Civil Division of the Court of Appeal of Arnhem-Leeuwarden and deputy judge in the Civil Division of the District Court in The Hague; Dutch representative in the United Nations Commission on International Trade Law (Working Group II on International Dispute Resolution / Arbitration and Conciliation).
He is an editor in several legal magazines and journals, he also writes annotations to the ‘Nederlandse Jurisprudentie’.
He serves as chairman of the Supervisory Board of Wolters Kluwer Nederland Holding, president of some working groups for self-regulation of the Dutch Social-Economic Counsel and ambassador of the Municipality of Leiden.
Memberships: member of the committee for the selection of arbitrators in the Court of Arbitration for Arts (CAfA), honorary member of the board of the Netherlands Arbitration Institute (NAI), and also member of the Advisory Board of the Institute of European and Comparative Law in Oxford, of the Belgian ‘Rechtskundig Weekblad’ and of the Dutch ‘Jurisprudentie Burgerlijk Procesrecht’.
Previously, prof. Snijders served as a.o.: in 1992-2016 full professor of Private Law at Leiden University, where he also got his master's degree (1973) and his doctorate (1978) in law. In 1978 – 1984 he worked as a full-time lawyer and barrister of the Supreme Court at Buruma c.s. in The Hague and in 1984 – 1992 as a full professor of Private Law at the Law Faculty of Erasmus University at Rotterdam.
He was a member of the Netherlands Judiciary Selection Committee, co-drafter of the Bar Vocational Course on Civil Procedural Law, commissioner of the Zilveren Kruis Groep, member/vice chairman of the Board of the Association Achmea and chairman of the Advisory and Supervisory Board of the NAI.
Jay L. Westbrook
Benno C. Schmidt Chair Of Business Law, School of Law, The University of Texas at Austin, The USMore
"He joined the University of Texas in Austin in 1980 and is now Benno C. Schmidt Chair of Business Law. Prior to this he practiced bankruptcy law, commercial law and international business litigation in all these areas for more than a decade with Surrey & Morse (now part of Jones, Day) in Washington, D.C., where he was a partner.
He has been Visiting Professor at Harvard Law School and the University of London, and is a member of the American Law Institute, the National Bankruptcy Conference, and the American College of Bankruptcy. He serves as a consultant to the International Monetary Fund and the World Bank. He was the United States Reporter for the American Law Institute's Transnational Insolvency Project and co-head of the United States delegation to the UN (UNCITRAL) conference that created the Model Law on Cross-Border Insolvency. He is an emeritus director of the International Insolvency Institute and a director and former President of the International Academy of Commercial and Consumer Law. He has been the recipient of outstanding contribution awards from the National Conference of Bankruptcy Judges, the International Insolvency Institute, and the American College of Bankruptcy. He has twice been named the Outstanding Teacher at the University of Texas School of Law.
He pursues research on a wide-ranging set of topics relating to bankruptcy law, commercial law and international business litigation.
Works nominated for the Prize would include dealing with an important subject, careful and rigorous research, clear analysis and presentation, and balance and objectivity showing the considerations on each side of a legal problem
Shortlist of the Prize (2018-2019)
(Prize Laureate 2019)
(Prize Laureate 2018)
Prize Laureate 2019
Humans as a Service
The rise of the Gig Economy is disrupting business models across the globe. Transportation services Uber and Lyft use mobile phone apps to connect customers with their ‘driver partners’; websites including UpWork and TaskRabbit connect cleaners, handymen and freelance editors with new clients; and purely digital tasks such as text transcription or surveys can be posted on Amazon’s Mechanical Turk for as little as 1 US Cent per job.
This crowdsourcing of work, or provision of ‘Humans as a Service’, as Jeff Bezos, the CEO of Amazon, so memorably put it, has had a profound impact on traditional conceptions of employment relationships, and challenged our understanding of national and transnational private and commercial law.
To this end, the book is loosely structured into three parts: we will, first, explore the reality of life and work in the gig economy, before attempting to chart solutions to the problems identified. Finally, we will take a step back to think about the broader implications of the gig economy for consumers, taxpayers, and markets at large.
Chapter 1 sets the scene, looking at Work on Demand in the gig economy and illustrating platform’s role in Digital Work Intermediation through several archetypical examples. The phenomenon might still form no more than a small part of labour markets — but it’s no flash in the pan, given rapid expansion into new tasks and industries. Looking at the economics of the gig economy, we discover competing drivers of value creation — only some of which (notably increased efficiency in matching labour supply and demand) should be encouraged.
We then turn to linguistic matters, exploring how despite their focus on commercial labour intermediation, platforms were originally cast in a different light, operating under the mantle of a ‘sharing economy’. Superficial as this may seem, language matters: not least as a driver of regulatory approaches, which is the central theme of Chapter 2, Double Speak. We turn to the gig economy’s two central claims in refuting traditional employment laws: entrepreneurship, and innovation. There is plenty of evidence for elements of both when platforms’ innovative use of technology and matching algorithms enable workers to embark on entrepreneurial careers. But the narrative does not hold true for all gig workers: given the vast heterogeneity of work, the reality is inevitably more complex.
Chapter 3, Lost in the Crowd, explores the entrepreneurship narrative, juxtaposing platforms’ promises of autonomy, freedom, and self-determination with the sobering reality of algorithmic control. Gig work suggests flexibility; the business model often requires a tightly curated service. Life as a ‘micro-entrepreneur’, it turns out, is heavily conditioned by ever-watchful rating algorithms, which aggregate customer feedback and compliance with platform guidelines in order
In many instances, algorithms will also assign work — and determine rates of pay. Depending on consumer demand, this means that the promised flexibility of on-demand work can quickly turn into economic insecurity, as gig income is highly unpredictable from week to week. The promise of freedom similarly rings hollow for many — not least because of carefully constructed contractual agreements which ban some gig workers from taking platforms to court. Instead of enjoying the spoils of successful entrepreneurship, a significant proportion of on-demand workers find themselves trapped in precarious, low-paid work.
The innovation narrative is similarly multi-faceted, as we discover in Chapter 4. There is much that is innovative about the gig economy’s reliance on modern technology — but insofar as work is concerned, the business model is ancient. This is the Innovation Paradox. Many platforms’ business models are built around large workforces competing over relatively low-skilled tasks, controlled by powerful intermediaries. The future of work, it turns out, is a blast from the past. From 18th century outwork to 19th century dock labour, there is ample historical precedent for this organisation of work — and the resulting working conditions.
Against this backdrop, Chapter 5 turns to how we should regulate work in the on-demand economy. Insofar as ‘disruption’ has become tech-speak for breaking the law, the time has come to Disrupt the Disruptors. On-demand gigs, tasks, and rides are work, rather than entrepreneurship — and should be recognised as such. In a first step, this means that the industry needs to be brought within the scope of employment law. Legal systems across the world have learned to respond to employers’ attempts at mischaracterizing work as independent entrepreneurship by focusing on the reality of the underlying relationship instead; in more complex multilateral scenarios where customers and platforms share control, a further question crops up as to who the responsible employer should be.
The final chapter takes a step back and looks beyond the implications of on demand work: what does the rise of a gig economy mean for consumers, and markets at large? A growing body of evidence suggests that both as consumers and as taxpayers, all of us are potentially liable to pay for the real cost of platforms’ services. Consumers increasingly find that the promised bargain of better services for lower prices unravels when things go wrong and platforms refuse responsibility. On the tax front, the fragmentation of payments and tax collection leads to serious underpayment and enforcement problems. The proliferation of low-cost labour might even end up disincentivising investment in research, development, and working conditions which foster genuine innovation.
In all these scenarios, employment law can play a crucial role in Levelling the Playing Field: whether it’s questions of consumer protection or tax enforcement, characterizing gig economy ‘micro- entrepreneurs’ as workers and platforms as their employers closes down avenues for exploiting regulatory arbitrage, corrects negative externalities, and avoids asset misallocation.
- Oxford University Press
- Publication year
2017 Academic Director of Undergraduate Exchange Programmes and Deputy Director, Institute of European and Comparative Law
2017 Academic Director of Undergraduate Exchange Programmes and Deputy Director, Institute of European and Comparative Law
2014 Associate Professor and Fellow in Law; Magdalen College, University of Oxford; Research Fellow, Institute of European and Comparative; Law and Associate, Oxford Human Rights Hub
2011-2014 Supernumerary Teaching Fellow in Law St. John’s College, University of Oxford
2010-2011 Stipendiary Lecturer in Jurisprudence Jesus College, University of Oxford
I am or have been an academic visitor at Yale Law School, Columbia University, WU Vienna, the Max Planck Institute, Hamburg; and Renmin University Law School, Beijing. Since my appointment in September 2014, I have spoken at over 40 conferences, seminars, and meetings across the UK, Europe, Asia, and the US.
Over the past three years, I have been closely involved in two EU-funded research projects in comparative labour law: INLACRIS, and the European Labour Law Network (ELLN)’s Restatement Project.
In addition to my academic work, I am a regular consultant and speaker for the International Labour Organization, the OECD, national governments, the European Commission, and Social Partners, and have served on the Legal Committee of the Royal Aeronautical Society. I am also on the Academic Panel of Blackstone Chambers, London.
2010-2012 DPhil, Magdalen College, Oxford
2009-2010 MSt Legal Research, Magdalen College, Oxford (Distinction)
2008-2009 LL.M., Harvard Law School, Cambridge MA
2004-2008 BA (Hons) Jurisprudence, Corpus Christi, Oxford (Class I)
Prize Laureate 2018
The Lex Mercatoria in Theory and Practice
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.
- Oxford University Press
- Publication year
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)
Assistant Professor in Commercial Law, the University of Nottingham, Nottingham (UK)
Child Law in South Africa
Twenty years ago, at a meeting hosted by the Faculty of Law at the University of Pretoria, there was a frank discussion on the viability of child law as a scientific and separate research field. The critics raised objections regarding the name of this particular field and the parameters of this discipline, which encompasses both private and public law. The first edition of this book was in part an academic response to this debate. This second edition retains the title Child Law in South Africa because it`s built on the recognition that has been gained in child law as an academic field and because it must also account for the dynamic nature of the law relating to children and the evolution of this law since 2009, when the first edition was published. This publication provides insight into the profound impact of recent legislative changes and developments in the associated regulatory frameworks, the judicial interpretation of ground-breaking case law in all tiers of the courts, and the latest research findings in this field. The work that has been done at international level is also incorporated as far as possible within the confines of the topics addressed in this publication.
The second edition of Child Law in South Africa does not merely follow in the path of its predecessor: This publication includes 11 completely new chapters and 11 ‘new’ authors – experts who did not contribute to the previous edition. In some instances new chapters were included to reflect recent developments, portray different angles, and stimulate debate. New authors were involved so that the publication could benefit from their expertise as researchers and to deepen the existing knowledge in and understanding of child law. Even the so-called ‘revised’ chapters add value as they systematically and critically deal with new knowledge and enhance research. An example of such an addition is the section on combating child trafficking, authored by Beatri Kruger, which can be found in Chapter 8. This section revealed a problem with section 120 of the Children's Amendment Act 17 of 2016 that amended the Prevention and Combating of Trafficking in Persons Act 7 of 2013. This is now being attended to.
Unfortunately this publication cannot address each and every issue pertaining to children. That would call for a comprehensive loose-leaf publication in several volumes. This book serves rather as a source of first reference, with the four subdivisions/Parts (Aspects of Private Law pertaining to Children, Constitutional and International Protection of Children’s Rights, Education Law and Justice for Children as Victims and as Offenders) merely touching the surface of child law. The grouping of the contributions should not be seen as a watertight division of the subject matter but rather as a systematic approach to a rapidly growing field. Furthermore, the grouping of the various contributions provides some indication of the enormous scope and the dynamics involved in child law.
A holistic approach is advocated in all matters pertaining to children and therefore a variety of practitioners and/or professionals, like social workers, psychologists, educationists and health care practitioners, are frequently involved. This publication addresses some of the burning issues that are dealt with in practice in a multi-disciplinary way, such as the removal of children prior to child protection proceedings, adoption, consent to medical treatment and surgery of children, social assistance and learners’ rights to and in education. It is also an indispensible source for comparative research in child law.
As may be expected when 22 authors are involved, there are differences in style and opinion. The opinions expressed by the authors are their own and do not necessarily reflect those of the editor or the publisher. But the various perspectives given should contribute to a better understanding of child law and stimulate healthy discourse. The contributors are: Trynie Boezaart, Madelene de Jong, Carina du Toit, Zita Mulambo Hansungule, Jacqueline Heaton, Sonia Human, Rika Joubert, Serges Djoyou Kamga, Beatri Krüger, Rosaan Krüger, Hanneretha Kruger, Anne Louw, Prinslean Mahery, Chris McConnachie, Benyam Dawit Mezmur, Ronaldah Lerato Karabo Ozah, Paula Proudlock, Stefanie Röhrs, Ann Skelton, Julia Sloth-Nielsen, Philip Stevens, Annette van der Merwe.
This publication was subjected to a pre-publication peer review process. Two experts in child law, who were not involved in this publication in any way, had the opportunity to review and comment on the contents before publication. Their comments were accommodated in this publication as far as possible.
This is a team effort and the editor drew inspiration from the dedication and perseverance of the contributors to this publication.
- Publication year
Position, academic and professional qualifications
Professor Trynie Boezaart (previously Davel) is a professor of private law, and holds the following degrees: BA (Law), LLB (cum laude) and LLD from the University of Pretoria. The title of her LLD thesis was “Die dood van ‘n broodwinner as skadevergoedingsoorsaak” (“The death of a breadwinner as a cause of damages”).
Academic & professional experience
She was a prosecutor in the Department of Justice and a lecturer at the University of South Africa, before joining the University of Pretoria in 1980. Professor Boezaart founded the Centre for Child Law in 1998. The Centre developed into a multi-disciplinary, internationally recognised Centre of Expertise. The main focus of the Centre is impact litigation as a strategy to enforce and promote children’s rights. Professor Boezaart stepped down as the Director of the Centre when she was appointed as the Head of the Department of Private Law in 2008. She also served as an acting judge in the GNP division of the High Court during 2008. Her term as Head of the Department expired at the end of September 2014.
Areas of specialisation
Her main fields of interest are Child Law and the Law of Persons.
Academic and professional memberships
Trynie Boezaart is an advocate of the High Court of South Africa. She is a member of the International Society of Family Law and the Board of the Centre of Child Law. She is the Deputy Chairperson of the Board of CELP (Interuniversity Centre for Education Law and Education Policy). She served as a member of the International Programme Committee of the 4thInternational Conference on Private Law (IPL) in Bangkok, Thailand in November 2013. She participates in the Convention on the Rights of the Child – Implementation Project.
Awards and bursaries
Professor Boezaart was appointed as Exceptional Achiever by the University Council on three occasions.
Prioritätsgrundsatz und Gläubigergleichbehandlung
German enforcement law is governed by two divergent principles: on the one hand, individual execution leads to the debtor's assets being distributed on a “first come, first served” basis, whereas on the other hand, insolvency law adheres to the pari passu principle. To this day this fundamental contradiction has not been clarified systematically. This has caused an increasing drift between the doctrines of bankruptcy law and the law of individual execution. Whereas the law of individual execution praises the principle of priority as a liberal way of distributing the debtor’s assets according to the mechanisms of freedom of competition, bankruptcy law claims that a just distribution can only be achieved on the basis of equal treatment and a pro rata satisfaction. The conflict between both distributional principles is even declared to be of a fundamental philosophical nature. The ever so often proclaimed struggle of any liberal system of private law with the concept of equality supposedly mirrors in this fundamental contraction of enforcement law. The discussion is complicated by the fact that bankruptcy law recognizes privileges for certain creditors for example with respect to security rights.
This fundamental contradiction within German enforcement law is one that can also be observed from a comparatist’s point of view. The pari passu principle is an international consensus of the national bankruptcy laws, whereas the principle of priority is rejected by a considerable number of national enforcement laws. In Europe mainly national laws with a romance tradition also adhere to the pari passu principle in their laws of individual execution. The fundamental inconsistency between a distribution according to the priority principle or the pari passu principle does not only concern national German law but also European enforcement law as a whole. This contradiction is one reason why efforts at a harmonization of European enforcement law always exclude the core issue of distribution. A recent example for this harmonizational blind spot is the Regulation establishing a European Account Preservation Order (Regulation (EU) No 655/2014).
The phenomenon of national enforcement laws being torn between both principles is historically likely due to a half-hearted reception of Roman law. Whereas classical Roman law exclusively distributed according to the pari passu principle, Germanic law was thoroughly following the principle of priority. During the reception of Roman law the principle of priority has only been banned from bankruptcy law but was kept alive in the law of individual enforcement. Recent attempts at a reform in the beginning of the 20th century have failed and the principle of priority in Germany has not been contested ever since.
The thesis attempts to resolve the contradiction between the principles of priority and creditor equality. A comparable large-scaled approach has not been undertaken to this day. This might be due to the fact that already the distributional problems addressed by bankruptcy law are of a very high complexity. The thesis addresses the fairness of a principle of priority and analyzes its supposedly liberal nature. The thesis also examines how creditor equality can be achieved and to what extent privileges can be justified in a system of private law.
In order to promote the transnational discussion of these fundamental questions of any national private law, the thesis also considers a national law that is usually said to be thoroughly shaped by the pari passu principle and therefore deemed to be an antipode to German law. France is considered to be the “motherland” of the pari passu principle. French law has also proven to be a very fruitful research subject because French enforcement law has undergone a thorough reform in the year of 2014 which lead to the codification of a law of execution. The French National Assembly has seen heated debates on the justness of the different modes of distribution. In order to thoroughly assess these recent developments in French law, the thesis had to consider French private law as a whole. The thesis aims not only at resolving the contradiction within German law but hopes to find a sound distributional system that could be acceptable to legal systems of both traditions. The thesis claims at its core that German private law should dismiss the priority principle as a just mode of distribution.
The thesis also considers the particular problems arising in cross-border insolvencies. The high complexity of national distributional schemes leads to severe problems when different national bankruptcy laws try to gain access to the debtor’s assets. Conflict-of- law rules can only try to coordinate the different modes of distribution (cf. recently my English essay on “Executory Contracts, Ipso Facto Clauses and Licensing Agreements in Cross-Border Insolvencies” published in the International Insolvency Review 2018) in Cross-Border Insolvencies. The thesis thoroughly analyzes the concept of the European Insolvency Regulation.
- Mohr Siebrek Ek
- Publication year
Oct. 2016 to present Head of Civil Law and Civil Procedure Law Chair, Albert Ludwig University of Freiburg; Director, Institute of German and International Civil Procedure Law, Department I
Aug. 2016 Winner of Free University of Berlin competition to fill a professorial vacancy at the Chair of Civil Law, Procedure Law and Insolvency Law
Apr. 2016 to present Deputy Head of Chair, University of Freiburg
Oct. 2015 to Mar. 2016 Deputy Head of Chair, University of Bonn
Jan. 2010 to Sep. 2015 Pre-exam Coordinator in Civil Law, Heidelberg University School of Law
Apr. 2007 to Sep. 2015 On staff at the Institute of Civil Law, Employment Law and Insolvency Law (chair headed by Prof. Dr. Thomas Lobinger)
Jul. 2015 Completed doctoral dissertation at Heidelberg University School of Law, awarded the title of University Lecturer (Venia Legendi) in Civil Law, Civil Procedure Law, Copyright Law, Industrial Property Protection and Comparative Law
May 2009 to Jul. 2011 Completed candidate dissertation at Heidelberg University School of Law on the subject of “Cession of Claims and Assignment of Rights” Grade: summa cum laude
Apr. 2009 Second national exam in law, Baden-Württemberg
Apr. 2007 to Mar. 2009 Law internship at Heidelberg Land Court with temporary engagements in Frankfurt, Speyer and Windhoek, Namibia
Sep. 2006 to Feb. 2007 First national exam in law, Baden-Württemberg
Oct. 2002 to Feb. 2007 Degree programme in law at Ruprecht Karl University of Heidelberg
The Allocation of Power between Arbitral Tribunals and State Courts
The ultimate question that runs through all of our law of arbitration is the allocation of responsibility between state courts and arbitral tribunals: Arbitrators are private individuals, non-public actors. If they assume the power to adjudicate the affairs of other private parties - or, for that matter, of public entities - that is, if they presume to bind others with definitive judgments - we must ask, where does this authority come from? A shorthand for this question is to speak in terms of “jurisdiction” (The French word compétence conveys the equivalent concept of the power to adjudicate).
In the only cases which are likely to claim our attention, the notion of an arbitrator’s “jurisdiction” will be precisely congruent with the presence of “consent”: A “jurisdictional” challenge simply rests on the proposition that a party should not be required to submit himself to arbitral determination of any dispute without having first agreed to do so: For where else may an arbitrator - fundamentally different in this respect from a state judge - derive his legitimacy? The answer is, only from that exercise of private ordering, of mercantile self-government, which characterizes any voluntary commercial transaction. A “jurisdictional” challenge asserts that this is “simply not the sort of process to which I have been willing to subject myself.”
I begin then with the dimensions of “consent” - how it should properly be understood, and how it manifests itself in connection with the various contexts in which challenges to the duty to arbitrate are raised. I then carry forward the discussion to explore how party autonomy in the contracting process may give rise to the voluntary reallocation of presumptive authority (from courts to arbitrators and conversely, from arbitrators to courts); I conclude with the necessary inquiry into the nature of autonomy with respect to the governing law - the “chosen law” that will govern the agreement to arbitrate itself.
- Brill | Nijhoff
- Publication year
College: Harvard College, Cambridge, Mass (1959-1963) Degree: B.A. magna cum laude
Field of Concentration: History
Honors: Phi Beta Kappa
Graduate: Institut d'Etudes Politiques, University of Bordeaux (1963-1964)
Certificat d'études politiques à titre étranger
Harvard Law School (1964-1967) Degree: LL.B. magna cum laude (Rank in class: 3)
Activities: Harvard Law Review, Case Editor
1968-1971: Associate, Coudert Frères, Paris, France
1971-1974: Assistant Professor, University of Texas School of Law, Austin, Texas
1975-Present: Professor of Law, University of Texas School of Law, Austin, Texas
2010-Present: Mark G. & Judy G. Yudof Chair in Law, University of Texas School of Law, Austin, Texas
1974-1975: Visiting Professor, University of Toronto Faculty of Law, Toronto
1985-1986: Fulbright Professor, China University of Political Science and Law, Beijing, People's Republic of China
Spring 1992: Fred Paulus Chair in Public Policy and Visiting Professor of Law, Willamette University College of Law, Salem, Oregon
Spring 1996; Spring 2000-2006, Visiting Professor, Faculty of Law, University of Geneva
Spring 2004: Visiting Professor, Université de Paris-I (Panthéon- Sorbonne) and Université de Paris-II (Panthéon-Assas)
Fall 2007: Visiting Professor, Université de Paris-I (Panthéon- Sorbonne) and Université de Paris-II (Panthéon-Assas)
Fall 2014 : Distinguished Visiting Fellow, Centre for Commercial Law Studies, Queen Mary University School of Law, London
Arbitration; Contracts; Domestic and International Sales; Negotiation; Alternative Dispute Resolution; Intellectual Property.
European Contract Law
To show this emergence of the modern contract law or of the contract law of the future the authors use the sources of different formal quality. These are directives or proposals for the directives or regulations, the private restatements like the DCFR or Acquis Principles. In the first edition the proposal for the Common European Sales Law has played a pivotal role. In the second edition, due to the fact of the withdrawal of this project, its role has been necessarily reduced but not entirely abandoned, since it is still an important step in the process of the European law development.
The authors by presenting different legal sources show to the readers an intellectual battle between the classical and innovative approach to the future of the contract law. They indicate the presence of both approaches in the sources of the European contract law.
The authors of the book are devoted to the idea of the European contract law, being a system unifying various legal traditions and cultures which strengthens the process of the European unification. It is a book evidencing a turbulent emergence of the new ius commune which reflects the complexity of the today relationships on the market.
The book places also a characteristic legal institutions of the European contract law, like right to withdrawal, precontractual information duties, control of the unfair terms in the scheme of the modern contract law.
It is a book about the system-building. Whether the European contract law is already such a system could be vigorously discussed. The authors take position in this debate, believing that the European contract law is an important factor in the process of forming the genuine own identity of the European Union. It is a turbulent development, but it brings a revolution to the contract law, adjusted to the innovation and plurality of the legal sources characterizing our sophisticated time.
- Nomos Verlagsges.MBH + Co
- Publication year
Director of the Centre for European Private Law
Westfälische Wilhelms-Universität Münster
1948 Born in Berlin
1976 Doctorate in law (Dr. iur.) at the University of Frankfurt a.M.
1978 Second State Examination in Law
1979-1980 Research assistant at the University of Frankfurt a.M.
1980-1982 Post-doctoral qualification sponsored by the Deutsche Forschungsgemeinschaft
1983 Habilitation and qualification as Privatdozent at the University of Frankfurt a.M.
1984-1988 Deputised as professor at the universities of Constance, Frankfurt, Regensburg and Trier
1989-1994 Professor for Civil Law, German and Modern European Legal History, University of Trier
1994-2017 Professor for German and European Civil Law and Director of the Institute for Legal History, University of Münster
1996-2005 Judge at the Higher Regional Court, Hamm (Oberlandesgericht Hamm)
1997-2017 Director of the Institute for International Business Law
1997-2012 Executive Director of the Centre for European Private Law, University of Münster
Since 2012 Director of the Centre for European Private Law
Specialist Areas of Research
Law of obligations (in particular, contract law, tort law and unjust enrichment); European business and consumer law; European and international contract law; law of co-operative enterprises and franchising; history of European private law (in particular the 19th century); history of European Community law.
Professor at the Jagiellonian University of Cracow
Professor at the University of Osnabrueck
Vicepresident of the committee for the defence of democracy in the region of Lesser Poland
Member of the judicial commission of the Polish Academy of Science
1993-1997 Assistant position at the Jagiellonian University, Chair of the Civil Law
1997-2006 Adjunct at the Jagiellonian University, Chair of the Civil Law
1997-2000 Second adjunct position at the School of Finances and Banking, Radom
2000 Director of the Co-ordination Unit of the Foreign Law Programs at the Jagiellonian University /French, German, Austrian, US – American and Ukrainian law program
2000 Leader of the Polish-German Center of the Banking Law at the Jagiellonian University
2000-2010 Leader of the European Postgraduate College (Kollegleiter für Europaeisches Graduiertenkolleg), Universities of Cracow, Meinz
2001-2004 Adjunct position at the High School of Insurances, Kielce, Poland
2001 Establishing of the Program “School of Polish and European Law in Ternopil” at the Economic University of Ternopil, Ukraine (profound skills in project management)
2002 Organization and establishing of the School of European and Polish Law in Vilnius, Lithuania (profound project management skills, comparative law practice
2003-2010 Head of the Chair of the Private Law at the Kozminski University, Warsaw, Poland
2004 Head of the local planning committee of the Cracow Conference of the Global Alliance for Justice Education
2006 Professor an der Jagiellonen-Universität, Krakau
2008-2010 Head of the team drafting and reviewing the teaching program of the Polish National School of Judiciary and Public Prosecution
2005 Member of the Redaction Committee of Acquis Group
2006 Member of the State Commission for Legal Advisor Exam at the Ministry of Justice, Cracow District
2006 Member of the Common Frame of Reference Team
2007-2010 Member of Drafting Team of the Polish Codification Commission for the Obligation and Succession Law
2009 Member of the R. Zimmermann team on the comparative succession law, Hamburg, Germany
2010 Member of the German coalition for civil law
2010 Associated member of the International Academy of Comparative Law
2011-2015 Member of the Codification Commission at the Polish Ministry of Justice
2012 Member of the European Law Institute
2013 Member of the association for east-law in Kiel
2013 Member of the Polish-German coalition for lawyers
2014 Member of the German Association Henri Capitant
2012-2015 Member of the Council of the European Law Institute
Regulating Patient Safety: The End of Professional Dominance?
Systematically improving patient safety is of the utmost importance, but it is also an extremely challenging task. It involves complex issues of care, competency, culture, communication and cost. It is also a site of conflict between professionals, patients, managers, organisations, regulators and politicians. Improving safety is difficult in ideal conditions, but it is particularly challenging in the real world of under-resourced health systems struggling to cope with ageing populations and the increase of chronic conditions. This illuminating study evaluates the role of professionalism, regulation and law in seeking to improve safety, arguing that the ‘medical dominance’ model is ill-suited to this aim, which instead requires a patient-centred vision of professionalism. It brings together literatures on professions, regulation and trust, while closely examining the different legal mechanisms for responding to patient safety events. The prevailing position within patient safety research has been to dismiss the role of law as unhelpful and even counterproductive to the aim of improving care. This is partly because law has been viewed negatively and narrowly in terms of legal actions in civil and criminal negligence. However, this book argues that law can do much more for patient safety than has generally been accepted. In particular, it examines established mechanisms within civil, regulatory and criminal law and assesses their suitability for helping to secure safer care.
- Cambridge University Press
- Publication year
Reader in Law, University of Bristol Law School
2007-2017 Senior Lecturer in Law, University of Bristol Law School
2001-2007 Lecturer in Law, University of Bristol Law School
2000-2001 Part-time Lecturer, University of Wales Swansea
1997-2001 Part-time Tutor, University of Wales, Cardiff
2006 Diploma in Teaching and Learning in Higher Education (University of Bristol).
2001 PhD “Error and the Medical Profession: Regulating Trust. The End of Professional Dominance?” University of Wales, Cardiff (Supervised by Professor Celia Wells)
1997 LLB Law & Politics (Class 2.1) University of Wales, Cardiff
University of Western Australia (2006)
Boston University (2010)
University of Singapore (2014)
University of Auckland (2018)
University of Otago (2018)
‘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.
- Hart Publishing
- Publication year
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).
Professor of Commercial Law, University College London, London (UK)
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.
Trademark and Unfair Competition Conflicts
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.
- Cambridge University Press
- Publication year
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
Professor at the Faculty of Law, Leuphana University of Luneburg (Germany)
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)
The Europeanisation of English Tort 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.
- Hart Publishing
- Publication year
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)
Professor of Comparative Law at the University of Bristol (UK)
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
Il Contratto di Affidamento Fiduciario
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."
- Publication year
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.
Professor honoris causa of the University of Genoa, Genoa (Italy)
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.
Proof of Causation in Tort Law
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 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.
- Cambridge University Press
- Publication year
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)
Associate Professor of Law, Oxford University, Oxford (UK)
2014 – current: Associate Professor of Law, Fellow and Tutor in Law, Wadham College, Oxford University, Oxford
2010-2014: Lecturer in Law, King’s College London, London (UK)
2010-2014: Bye Fellow in Law, Murray Edwards College, Cambridge (UK)
Exclusive Jurisdiction in Intellectual Property
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.
- Mohr Siebrek Ek
- Publication year
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)
Full Tenured Aggregate Professor, University of Milan-Bicocca School of Law, Milan (Italy)
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)
Money Awards in Contract Law
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.
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  AC 344 and Alfred McAlpine Construction Ltd v Panatown Ltd  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  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  2 AC 353 and two more recent applications of the principle there enunciated in Leofelis v Lonsdale  EWHC 485 (Ch D) and The Glory Wealth  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  AC 367 are both consistent with the new account, and why this area of the law generally accords with the overall thesis presented.
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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)
Lecturer in Law, University of New South Wales, Sydney (Australia)
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)