TRADEMARK PROTECTION: an INTERNATIONAL PERSPECTIVE

Trademarks are signs and combinations that identify goods and services of a particular individual offered in a market. Today the trademark is a way to attract the public. Consumers look at trademarks to choose goods and services, which increases the role of trademarks in global marketing. Trademarks are important in the sense that most of the consumers rely on the symbols, letters, or labels that the company attached with its products in order to buy them. Often, consumers are deceived by selling local quality products under the brand name. This not only break the trust of the consumers but it also hamper the reputation and goodwill of the brand name and its business. Hence, trademark needs to be protected from such fraudulent activities not only nationally but internationally too. Sometimes, trademark is infringed in a foreign country and due to territorial restrictions; the trademark owner is not able to protect his mark in that country.

Our intellectual property system offers a legal means for such protection. There exists a complete international system for trademark protection. Several international agreements have been signed to facilitate the international protection of intellectual property rights. The oldest is the Paris Convention of 1883 and the most recent is TRIPS in 1994. There are several other global and regional agreements, signed between the Paris Convention and TRIPS, which are still in force today such as the 1891 Madrid Agreement on the International Registration of Trademarks, the 1989 Madrid Protocol on the International Registration of Trademarks, and the 1994 Trademark Law Treaty. This article examines various treaties, convention and agreements made internationally for the protection of trademark in the global market.

INTERNATIONAL AGREEMENTS –

The Paris Convention and TRIPS both provides many general principles and rules for the protection of intellectual property rights.

PARIS CONVENTION

The Paris Convention for the Protection of Intellectual Property is one of the oldest and important treaties for the protection of intellectual property rights signed in 1883 in Paris. It also established a union named Paris Union for protecting intellectual property rights. It applies to all intellectual properties such as trademarks, utility models, patents, geographical indications. The Paris Convention provides three principles for protection of intellectual properties[1]: -

National Treatment – The Paris Convention provides that each member country of the convention must provide equal and same protection of intellectual property which it grants to its own citizens, to the nationals of other member countries. For example, if a citizen of India wishes to obtain a Trademark Protection in United States, he will get same protection and rights under the same conditions which United States will provide to its own nationals as both India and United States are the signatories of Paris Convention. Also, the citizens of non-member countries are also entitled to national treatment under the Convention but with some limitations. This principle also applies to all TRIPS member states.

Right of Priority – It means that the applicant who is already protected in one of the member states can apply within a certain period of time for the protection in other member states. The subsequent applications filed will be treated as if they had been filed on the same day as the first application. In simple words, they will have priority over the applications filed by others during that period for the same invention. The advantage of this provision is that the applicants have the option to file the application later in the countries in which they wish to protect their mark and are not required to present all of their applications at the same time.

Common Rules – All the signatories of the convention are governed by their own domestic law for registration of intellectual property rights. Therefore, the annulment or nullification of the registration of a mark in one Member State will not affect the validity of the registration in other Member States. This means that the trademark owner is subject exclusively to the national laws of each country. But often, some national laws prohibit registration of numbers or letters, whereas others allow such trademarks. In that case it becomes very difficult for the trademark owner to use a mark in the same form in all the countries. But, the Paris Convention provides that the trademark that has been registered in its country of origin in compliance with domestic law is to be registered in other member states as it is.

TRIPS (The Agreement on Trade-Related Aspects of Intellectual Property Rights)

TRIPS is an international agreement administered by the World Trade Organization (WTO) which provides minimum standards for regulation of intellectual property rights. It was negotiated in 1994. It covers almost all intellectual property rights such as copyright, trademarks including service marks, geographical indications, industrial designs, patents including the protection of new varieties of plants, the layout-designs of integrated circuits and trade secrets.[2] It incorporates some of the provisions of Paris Convention (1967) also which includes national treatment principle. Article 3 of TRIPS provides for reciprocity between member states. It restricts the discrimination between a Member countries own nationals and the nationals of other Member countries. It means that each member state must grant the citizens of other member states the same intellectual property rights protection which it grants to its own citizens. TRIPS have also introduced the most favoured nation principle which forbids the discrimination between nationals of other member countries. Article 4 of TRIPS provides that all advantages, favours, privileges or immunities granted by a member to its own citizens will be extended to all other members in the same way and without any further conditions. However, the national treatment and most favoured nation principle do not apply to agreements such as Madrid Agreement and Madrid Protocol which are mainly introduced for the international or regional registration of intellectual property rights.[3] It is mandatory for all member states of TRIPS to introduce procedures into their national legislation for the actions to be taken against any infringement of intellectual property rights. Any victim can go to any judicial or administrative authority for seeking remedies in respect of the infringement. Remedies can be in the form of injunction, seizure or compensation for the loss of reputation or goodwill. Articles 15-21 of TRIPS lay down the rules for protection of trademarks. Article 15(1) provides that all signs and combinations of signs that are capable of distinguishing the goods and services of one undertaking from another are capable of acquiring trademark protection. Distinctiveness is thus the sole condition for protection of a trademark. If a mark is not able to distinguish between the goods of two persons, it will not be allowed to be registered. Article 15(4) extends the protection to service marks also so that the nature of a product or a service may not be an obstacle to registration of the mark. Article 15(5) of TRIPS only provides for the obligation to publish the trademark either before or immediately after registration and to allow suitable opportunity for an opposing party to apply for cancellation of the registration. Under Article 16, TRIPS recognizes the exclusive right of the trademark holder. During the term of protection, the owner of a trademark enjoys the exclusive right to prevent third parties from using either his own mark or a similar mark for same or similar goods or services in the course of trade where such a use would result in a likelihood of confusion among the consumers. TRIPS also extends the protection to well known marks. Thus, Pepsi Company has the right to forbid a shoe manufacturer from using the sign “Pepsi” to designate its shoes if consumers would be likely to believe that the shoes were manufactured or endorsed by the Pepsi Company, thereby diluting the “Pepsi” trademark.

SPECIAL AGREEMENTS –

Article 19 of the Paris Convention permits the countries of the Union the right to make separately between themselves special agreements for the protection of intellectual property. Presently, there are four such special agreements existing relating to trademarks: the Madrid Agreement, the Trademark Registration Treaty, the Madrid Protocol, and the Trademark Law Treaty. The Madrid Agreement, Trademark Registration Treaty, and the Madrid Protocol are completely different from TRIPS as these provides for international registration of trademarks but TRIPS does not deal with registration of intellectual property rights.

The Madrid Agreement: - The Madrid System for the International Registration of Marks is governed by two treaties: The Madrid Agreement and the Madrid Protocol. The Madrid Agreement was incorporated in 1891. It is administered by the International Bureau of the World Intellectual Property Organization (WIPO). Most of the countries have ratified the Madrid Agreement including India, but with the exception of the United States, Japan, the United Kingdom, Ireland, and the Scandinavian countries.

The Madrid Agreement provides simple international registration procedures for acquiring trademark protection by providing single international application upon payment of a single fee. The procedure for registration under the Madrid Agreement may be summarized as follows[4]:

a citizen of a member state owns a registered trademark in its own country
on the basis of this initial registration, the national trademark owner applies for international trademark registration with the International Bureau of the WIPO;
in the international application, the applicant lists the member states in which protection is sought;
the WIPO distributes the international application to each of the listed states;
in each of these states, the international application is treated as a national application

Under the Madrid Agreement, if the trademark registered in the country of origin, on which the international registration is based, is nullified, then all the trademarks issued from the international registration also becomes void within five years from the date of international registration. Madrid Agreement has been criticized by many countries on this point.[5]

Trademark Registration Treaty

The WIPO created the Trademark Registration Treaty in 1973. The United States and thirteen other countries were signatories to it. But till now, many countries including United States have not ratified it. It is now signed only by the Soviet Union and four African countries. This treaty was made with an objective to establish an international trademark Aling system through which citizens residing in one of the member States can easily register trademarks in all other member states just by filing one single application and securing single international registration. The main advantage of this treaty is the simplified procedure to get the trademark registration secured internationally. But it is still not in force.[6]

The Madrid Protocol

The Madrid Protocol was signed on June 27, 1989, and entered into force on April 1, 1996. There are total 86 countries who are signatories to this protocol including India. It provides a cost-effective and a very efficient way for trademark holders to ensure protection in multiple countries through the filing of one single application with a single office and single fee in one language. Once any member country grants the trademark protection to any applicant, his trademark will be protected in that country as if that country has registered it. Similar to Madrid agreement, here the international application is treated as a national one.[7] The procedure for filing the application under Madrid protocol is that the applicant files an International Application from the national office of his country which will then pass the International Application to WIPO. He can then list those countries in his application in which he sought protection.[8] The duration of protection following an international registration is ten years, renewable under payment of a fee to the International Bureau of the WIPO. The Protocol is a new treaty independent from the Madrid Agreement and introduces new procedures for international registration which entered into force on April 1, 1996. For example, if the applicant selects the European Community Office, the office of harmonization in the internal market (OHIP), the application is treated as an EC trademark application.

The Trademark Law Treaty

The Trademark Law Treaty was adopted in Geneva on October 27, 1994, and entered into force August 1, 1996. It does not deal with the registration of trademarks but simplify national and regional trademark registration procedures. There are 49 countries which are signatories to it. It also eliminates the formal requirements that are considered to be unnecessary obstacles in the registration process. The treaty applies to trademarks for such as word marks, design marks, mixed marks and three-dimensional marks. The treaty does not apply to sound marks, olfactory marks, collective marks, certification marks or guarantee marks. The provisions of the treaty contain three phases of the registration procedure: (i) the application for registration; (ii) changes after registration; and (iii) renewal. The provisions of the Trademark Law Treaty are not incorporated into TRIPS. The duration of renewal of the registration under this treaty is 10 years.[9] CONCLUSION What conclusions may be drawn from this brief overview of the international trademark protection system? Clearly, the Paris Convention has stood the test of time. Its principles are now incorporated into TRIPS, defining the basic rules of protection of intellectual property rights in the international trade.

The recognition and protection of intellectual property rights is one of the conditions for international peace. Apart from various international agreements like Paris Convention and TRIPS, there are various special agreements such as Madrid Agreement and Madrid protocol, trademark law treaty and trademark registration treaty for the protection of trademarks internationally. Madrid Agreement and Madrid protocol which are part of the Madrid system only deals with registration aspect of trademarks whereas all other treaties and convention deals with principles and rules for protecting trademarks and simplifying the trademark registration procedures at the international level. All these treaties and agreements are incorporated with sole objective to simplify the international procedures for protecting the trademark and to make them cost effective and more efficient so that any person can make his mark registered and enjoy the trademark protection not only in his home country but also internationally. 1

References

“Summary of the Paris Convention for the Protection of Industrial Property” (1883), available at <https://www.wipo.int/treaties/en/ip/paris/summary_paris.html> (accessed on 15th Nov, 2014) [2] Wolf R. MEIER-EWERT, “A Business-oriented overview of Intellectual Property for Law Students” available at <https://www.wipo.int/edocs/mdocs/sme/en/wipo_smes_ge_2_06/wipo_smes_ge_2_06_www_63216.ppt> (accessed on 15th Nov, 2014) [3] Supra note 1 [4]
“Guide To The International Registration Of Marks Under The Madrid Agreement And The Madrid Protocol” available at <https://www.wipo.int/export/sites/www/madrid/en/guide/pdf/guide.pdf> (accessed on 15th Nov, 2014) [5] Supra note 4 [6] DONALD W. BANNER, “Trademark Registration Treaty” available at <https://ipmall.info/hosted_resources/lipa/trademarks/PreLanhamAct_107_Trademark_Treaty.htm> (accessed on 15th Nov, 2014) [7]
“Madrid Protocol” available at <https://www.uspto.gov/trademarks/law/madrid/> (accessed on 15th Nov, 2014) [8] “Madrid Protocol and Madrid Agreement” available at <https://www.elkfife.com/madrid-protocol-and-madrid-agreement> (accessed on 15th Nov, 2014) [9] “Summary of the Trademark Law Treaty (TLT)” (1994) available at <https://www.wipo.int/treaties/en/ip/tlt/summary_tlt.html> (accessed on 16th Nov, 2014)

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The Water Sustainability Act

The Future of Sustainable Protection of Surface and Groundwater;

The Water Sustainability Act.

Introduction:

The Water Sustainability Act is a new law that will be replacing the current Water Act that was made in 1909. The water act has now been outdated pertaining to our water needs, and our growing populations. The Water Sustainability Act will bring B.C. water laws into the 21st century. The water Sustainability Act will update the current laws from the Water Act, and also bring new policies into consideration, an example of this would be treating groundwater and surface water as one resource and protecting them both. The seven key areas that will be included in the Water Sustainability Act include: (A Water Sustainability Act For B.C., 2014, October)

Protect stream health and aquatic environments
Consider water in land use decisions
Regulate and protect groundwater
Regulate water use during times of scarcity
Improve security, water use, efficiency and conservation
Measure and report large scale water use
Provide for a range of governance approaches

These improvements to the Water Act will insure that we are protecting are water so that we can be sustainable in the future. By protection the stream health and aquatic environments it prevents the dumping of wastes and pollutants. It also will protect streams from droughts. If the amount of water in a stream or river is effecting the aquatic life, there will be protection orders put out to stop any water being taken out of the stream or river, and anything that is under the influence of it. Another part of the act will be considering water in land use decisions. This is mainly focusing on sustainable development. The water on this planet will be protected and thought of before any development pertains near a water source. This will happen because new water objectives will be defined, and there will be more decision making towards a long-term health of aquatic environments, streams, rivers and any body of water. In this act the groundwater will also be protected, which is the first time in history that groundwater has been treated as a source water in British Columbia. Protection of groundwater will include; licencing of groundwater with an exception to domestic use, improvement of knowledge on the aquifers and wells, and updating all drilling requirements. These rules will improve our groundwater in quality and quantity because it will show how much groundwater is being used, how much groundwater every aquifer and well can give while still being sustainable, and by updating the drill requirements it protects from contamination of groundwater while improving the treatment process following source groundwater. The next point of the Water Sustainability Act is protecting water sources during scarcity. This will allow for adequate water needs for humans, but will also allow temporary restrictions to protect the quantity of water and the aquatic life that lives in it. By doing this every water source will always have adequate amounts for aquatic life as well as humans. The Water Sustainability Act will also improve security, water use, efficiency and conservation. Which allows for all water licences to be reviewed every 30 years, makes sure that all water users are using the water beneficially and in a conserving way. By measuring water uses, all big water users must report how much they use, this allows for people to have a set amount they are allowed to use, and they can pay a set amount for the water. This stops companies coming to British Columbia, taking our water in large amounts for free, and then selling it back to us. The last point of the Water Sustainability Act is enabling government approaches. This will allow for other agencies other the government to partake in water sustainability. Which will allow the public to have more say what they think is sustainable for our water. (A Water Sustainability Act For B.C., 2014, October)

Even though every part of the Water Sustainability Act is important to the conservation, protection and sustainability of our water; the focus of this paper will be on the protection of streams and aquatic ecosystems, regulating water during scarcity and groundwater protection.

Regulations:

In the Water Sustainability Act, the protection of our streams and aquatic ecosystems is provided. British Columbians had shown extreme support measures to protect stream health. This includes lakes, rivers, creeks and all bodies of water. (A Water Sustainability Act For B.C., 2014, October)

The Water Sustainability Act protects stream and aquatic health by: (A Water Sustainability Act For B.C., 2014, October)

Environmental thresholds are considered when new allocations to water are made. This applies to surface water and ground water except in low-risk situations.
Expanding on roles when dumping debris that currently exists in the Fish Protection Act. This includes debris like human and animal wastes, pesticides and fertilizers

Section 15 of the Water Sustainability Act is focused on environmental flow needs. In this section it is mentioned that the decision maker must consider flow needs of a stream in new constructions or projects. In these projects, assessments must be done, and the decision maker will then determine if this project will continue based on the effects on the stream or body of water. (Bill 18 — 2014: Water Sustainability Act, 2014, April 29)

In section 86 of the Water Sustainability Act, Declarations of significant water shortages are protected. It stated that if there are one or more streams that are at high-risk of critical environmental flow thresholds, the minister will make an order protecting the current flows of the stream, and any bodies of water that come in contact with the high-risk stream. These orders that are made cannot be longer than 90 days. Once this order has expired, the minister may make another order and asses if the stream or body of water is still high-risk or not. (Bill 18 — 2014: Water Sustainability Act, 2014, April 29)

Section 46 prohibits the introduction of foreign matter into a stream. It includes anyone introducing, or someone allowing anyone else to introduce foreign matter such as “debris, refuse, human and animal waste, pesticides, fertilizers, contaminants or any other matter or substance into or adjacent to a stream. These foreign substances must not be added where it will cause significant adverse impact to any of the following: (Bill 18 — 2014: Water Sustainability Act, 2014, April 29)

Stream or stream channel
Existing uses of water from a stream
Property or riparian owners of the stream
An aquifer that is hydraulically connected to the stream or the existing uses of the water from an aquifer
Aquatic ecosystem of a stream

These practices do not apply to a forest practice or prescribed activity, practice or substance.

Section 56 provides rules on decommissioning or deactivating wells. Wells are considered to be in service when they are used on a regular basis, or when it is considered a backup supply. A well is considered out of service when it hasn’t been used for a period of time or has prescribed circumstances. When a well isn’t in service it must be deactivated or decommissioned under section 46 of the Water Sustainability Act. (Bill 18 — 2014: Water Sustainability Act, 2014, April 29)

Some definitions to understand that are stated in the Water Sustainability Act, Stream Health protection section retrieved from Bill 18 — 2014: Water Sustainability Act, 2014, April 29; include:

Aquatic ecosystem- means living organisms and their life processes dependent on the natural environment of a stream.

Critical environment flow threshold- meaning the volume of water flow below significant or irreversible harm to aquatic ecosystem of a stream is likely to occur.

Environmental flow needs- means the volume and timing of water flow required for proper functioning of the aquatic ecosystem.

In the Water Sustainability Act, groundwater will be regulated and protected. This is important because one fourth of people rely on groundwater for drinking supply, and or industrial uses. The current Water Act does not regulate groundwater. This means that anyone can accesses our groundwater without permission from the government, and free of charge. The Water Sustainability Act will address this issue by regulating our groundwater as we regulate our surface water. Groundwater users will have to hold a licence and be charged an annual fee for the use of the groundwater. The only exception of this rule is for domestic uses, as long as the aquifer is not in high demand. This act will also collect data on usages and information from owners and well users to improve the knowledge of the aquifer, and its water availability. This rule will help us with future water allocations. (A Water Sustainability Act For B.C., 2014, October)

Section 83 of the Water Sustainability Act will put laws and restrictions on groundwater activity by prohibiting: (Bill 18 — 2014: Water Sustainability Act, 2014, April 29)

Construction of Wells
Installing well pumps
Conducting flow tests
Performing another activity in relation to a well or groundwater

This section only applies if it poses a threat under the Water Sustainability Act or if the person doesn’t hold a drilling authorization. A comptroller or water manager mat amend or cancel well drilling if there is high risk situations. (Bill 18 — 2014: Water Sustainability Act, 2014, April 29)

Section 130 has regulations respecting groundwater and groundwater works. This regulates artificial openings in the ground that may not be classified as a well, but are still under the direct influence of groundwater or an aquifer. Well drillers and pump installers are protected and regulated by this section under the Water Sustainability Act with respect to section 83. Some other requirements, procedures, standards and codes with respect to groundwater include: (Bill 18 — 2014: Water Sustainability Act, 2014, April 29)

Siting wells
Construction of wells
Installation of well pumps
Designing, testing, operating, disinfecting, flood proofing, capping or covering of wells
Or any other activities that pertain to groundwater

Conclusion:

The Water Sustainability Act has many advantages, and few disadvantages. The improvements that have been made under this act can be summed up by; protecting our aquatic environment will be protects by regulating debris dumped in, or around a stream river, or where aquatic life can be effected by the dumping. These debris include human waste, animal waste, pesticides and fertilizers. The environmental flow will also be protected by preventing “significant or irreversible harm to the aquatic systems”. Another advantage that the Water Sustainability Act has brought in would be water is now regulated during scarcity. This will protect water quantity with respect to human needs and aquatic life’s health. The final version of the Water Sustainability Act will obligate the decision maker to determine what flows should be in a certain river or stream, and then try to reach that goal. This is a change in the perspective of our water uses because before the government thought that being right on the limit was healthy, this act now shows that instead of pushing our water uses to the limit, we should be trying to regain what we had before. The water flows will also be restricted if the stream is labeled as “sensitive”. This is because the stream is not as protected as it should be, so to get the stream back to the health it was there will be more ruled forming around these streams, rivers and bodies of water. Last but not least the regulation of groundwater, precise mechanisms for giving licences to ground water, which will in time allow development under these licences and allow the governments to have more time to discuss water development with water users, communities, and First Nations people. This will insure that no unsustainable water decisions will be made. (Gage, A, n.d.)

The Water Sustainability Act is the future of our water protection ways, as said by the West Coast Environmental Law group; (Gage, A, n.d.)

“Water, and how we treat our water, is one of those fundamental issues that touches on so much of who we are, what we do, and how we build our economy. A weak Water Sustainability Act could fail to deal with current unsustainable and inefficient water use, and could lock in these problems for years to come. A strong Act could address past over-use, and wasteful use, of water and protect drinking water and fish from over-use, poor oil and gas, logging or mining practices, and other threats.” (Gage, A, n.d.)

Water is incapable of protecting its health, as humans, water is our future. The Water Sustainability Act will protect any aspect of our water that hasn’t been protected already, and is allowing us as a world to move forward in protection our future, with respect to sustainable development. (Gage, A, n.d.)

References:

A Water Sustainability Act For B.C. (2014, October 1). Retrieved April 6, 2015, from https://engage.gov.bc.ca/watersustainabilityact/files/2013/10/WSA_overview_web.pdf

Bill 18 — 2014: Water Sustainability Act. (2014, April 29). Retrieved April 6, 2015, from https://leg.bc.ca/40th2nd/3rd_read/gov18-3.htm#section86

Gage, A. (n.d.). West Coast Environmental Law. Retrieved April 6, 2015, from https://wcel.org/resources/environmental-law-alert/strengths-and-weaknesses-new-water-sustainability-act

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Trusts and Equitable Relationships in Utility to Commerce.

‘Trusts in a commercial setting require treatment that differs from that given to traditional trusts. Some modification is essential if trusts and equitable relationships are to be of utility to commerce.’

Critically evaluate the above view, with reference to case law and literature on both the nature of a beneficiary’s interest under a trust and on the nature of Quistclose trusts.

Traditionally trusts were private family arrangements. Historically much of trusts law emerged out of the desire of settlors to preserve family wealth, tying up property so that it could be enjoyed by successive generations.[1] In the twentieth century however, trusts have been used more and more in a commercial setting to the point that it is estimated that less than 10 per cent of trust assets are comprised in family and charitable trusts.[2] Therefore, it is clear that the most important feature of the trust concept is as an instrument of commerce, with the key attributes of protection against insolvency, the protective regime of fiduciary trust law and the flexibility of provisions that can be inserted in trust instruments. The key to the efficient commercial use of trusts is the idea of the trust fund owned by the trustee but segregated from his own estate and thus protected from the claims of the trustee’s creditors and available to satisfy the claims of the beneficiary.[3] In the commercial context the trust usually results from a contract rather than a gift meaning that often commercial trusts seem to straddle the line between the two systems of exchange, gifts and bargains which in the eyes of some commentators has blurred the line between trust law and contract law. Rudden’s account of the orthodox trust as "essentially a gift, projected on the plane of time and so subjected to a management regime,"[4] does not fit for trusts in commercial settings. The commercial trust, by contrast does not effect a gift and often has financial benefits for the lendor. For example in Northern Developments Holdings Ltd[5], where the banks had an interest separate and distinct from that of the debtor in seeing that Kelly’s debts should be paid. There has been much controversy over the nature of a beneficiary’s interest under a trust, based upon the difference between in personam rights against trustees and in rem rights against trust property[6]. In the commercial world, Goode suggests that it is upon the debtor's insolvency that the distinction between ownership and a personal right to an asset becomes of crucial significance.[7] This mainly because it is a basic policy of insolvency law to respect proprietary rights held by another prior to the debtor’s bankruptcy. So in a way, a finding of a trust can be a means of protecting an unsecured creditor because the estate available for distribution among the general body of creditors is limited to the debtor’s own assets. Therefore the degree to which the law is willing to recognise rights as proprietary rather than merely personal is of great import to unsecured creditors, for every extension of the concept of ownership erodes the debtor's estate. With the trust concept being expertly manipulated by lawyers to fit more and more commercial scenarios, it becomes increasingly unclear what the nature of the beneficiary’s interest in equitable property rights are. The widely held understanding of the beneficiary’s interest being a form of property ownership reflects the origins of the trust.[8] The trust of land provided the model, it is this paradigm of the trust which has subsequently influenced the way in which rights under trusts have been conceptualised.[9] It is often assumed that the existence of a legal estate vested in a trustee necessarily means that the beneficiary has a proprietary interest in it. This view was demonstrated by Lord Browne-Wilkinson, in Westdeutsche, who stated that “Once a trust is established…the beneficiary has in equity a proprietary interest in the trust property.”[10] To counter the argument that beneficiaries must have a proprietary interest in the trust, Parkinson argues that beneficiaries under discretionary trusts do not gain proprietary interests. In McPhail v Doulton,[11] consideration was given to the validity of a discretionary trust in which the potential beneficiaries listed were numerous making it difficult to say that they had proprietary rights. The significance of this argument is that it challenges objections to decisions based upon the proprietary nature of the trust, and opens up the possibility of accepting developments in the law without complex attempts to reconcile these cases with pre-existing assumptions and definitions of the trust. Parkinson states that because trusts now arise in so many different contexts and features of the trust vary correspondingly, it is a futile exercise to try and find a definition of the trust which is both comprehensive and accurate. [12] McFarlane and Stevens argue that the beneficiary’s interest is neither proprietary nor in personam but propose a new theses that equitable property rights are best understood as rights against rights.[13] They submit that by understanding the beneficiary’s interest in this way, the trust can be accommodated within legal systems that have not experienced the productive paradox of two rival court systems.[14] The conventional view that an equitable property right is a right against a thing suggests that such rules cannot possibly be exported to those prosaic civil jurisdictions that do not share English law’s colourful history.[15] That perception is unfortunate in a jurisdiction where the courts of common law and equity have long been ‘fused’, let alone in a world where the law is increasingly harmonised. Fortunately, as far as equitable property rights are concerned, that perception can be resisted as they depend not on the tradition of equity but rather upon the exportable concept of rights against rights. One example of how the traditional view of a trust has been modified to make it applicable in the commercial setting is Quistclose trusts. A Quistclose trust is a trust which arises where a creditor has lent money to a debtor for a particular purpose. The trust is formed in the creditor’s favour but is defeasible by the exercise of the power vested in the debtor to apply the money to the specified purpose. The name and trust comes from the House of Lords decision in Quistclose, [16]although the underlying principles can be traced back further. One of the great difficulties with the Quistclose decision is reconciling it with the orthodox principles of trust law. It would seem that the Quistclose trust is given different treatment than traditional trusts. Quistclose trusts straddle the line between trusts and contract. This is evidenced by the fact that the rights which form the subject matter of the trust were transferred to Rolls Razor pursuant to a contract of a loan. This meant that Rolls Razor was contractually obliged to repay the amount it received to Quistclose from the moment of receipt. So even if there was no trust found, Rolls Razor would still have to repay the value; the liability did not arise purely on rights transferred on trust. Therefore the consequence of finding a trust meant that the lender neither bore the risk of the destruction of the subject-matter of the trust (as would a normal trust-beneficiary) nor the risk of the borrower’s insolvency (as would a normal lender). A number of commentators such as Birks and Chambers take the view that the debt only arises at the moment of application of the money to the purpose for which it was lent or failure of the purpose. This would solve the problem of the double benefit in favour of the lender, although Swadling disputes this as he states that this does not square with the facts as the contract of the loan held no such provision.[17] Also the fact that the lender imposed no obligation on the borrower to keep the funds separate from its own assets suggested that the money was not in fact held on trust but became a part of the borrower’s estate. Although the presence of such a requirement is not necessary to determine whether or not there was intention to create a trust, its absence is a good indicator that the funds were to be held absolutely by their recipient. In Henry v Hammond, it was said by Channell J that if the recipient is not bound to keep the money separate but is entitled to mix it with his own money and deal with it as he pleases then, he is not a trustee of the money but merely a debtor.[18] Another feature of the Quistclose decision which puts it at odds with the orthodox view of trusts is that a trust must have certainty of objects. There are grave difficulties in identifying the objects of the trust in Quistclose. It could not be the creditors for a number of reasons, the most prominent of which is that it would allow them to be paid twice over. For almost identical reasons it could not be the lender. Nor could it be the purpose because the purpose was a private purpose and English law does not tolerate trusts for private purposes. It is on this basis that Swadling argues that no trust should have been found in Quistclose and the funds should have been held to be a part of Roll Razor’s assets and treated accordingly. [19] This begs the question of why Quistclose trusts exist at all seeing as they seem to depart so from the orthodox principles of trust law. Quistclose trusts are often invoked by the lendor in place of conventional security, such as mortgages or charges, in order to protect against debtor default or debtor insolvency.[20] Bridge suggested two recurring features of Quistclose cases; the emergency aspect of the matter as well as sometimes the non-professional character of the arrangements.[21] The emergency aspect of the matter is important in a number of cases where speed is of the essence because the debtor has an immediate need for financial assistance in order to continue in business. This is not always the case though, in Twinsectra Ltd v Yardley[22], on the facts there does not appear to have been any emergency but the parties still chose to resort to a Quistclose trust. The key point to be taken from this, that this is not an example of standard commercial practice but rather an unusual transaction. Quistclose trusts often contain within them an element of desperation; that is to say Quistclose is invoked by a claimant who wished to avoid being classified as an unsecured creditor and so maintains that he has a proprietary interest in the money that has been paid over to its recipient. Goldcorp[23] and Re Holiday Promotions (Europe) Ltd[24] are both examples of this. It has been submitted that the decision Quistclose is too uncertain in scope and basis, to be invoked by practitioners on a regular basis with any degree of confidence.[25] It is more likely to be used where time does not allow resort to more traditional forms of security or like in Carreras Rothmans[26], a transaction has got into difficulties and a Quistclose trust presents itself as the most obvious solution. It suffices to say that Quistclose does have a role to play in modern commercial practice, although it is difficult to determine the exact extent of that role. However, McKendrick argues that it appears to be principally a residual device, to be invoked where traditional forms of security are, for one reason or another, unavailable or unattractive.[27] Penner backs this view up by stating that in commercial transactions, the initial analytical impulse should be towards the contractual, at least in circumstances where the use of the trust device is not expressly intended.[28] Parkinson suggests that the Quistclose trust will come to be understood as an umbrella term for a variety of kinds of trusts concerned with limitations of an equitable character placed on the use of money by lenders and which do not always share the same structural characteristics. [29] The existence of the Quistclose trust does not seem to conform to ordinary traditional trust rules shows that the courts are willing to treat trusts in a commercial setting differently. Conclusion Judicial statements have been made from time to time that equity has merely an unsettling effect when transplanted into the field of commercial law.[30] However it has been shown that trusts can have great use in the commercial sphere. Although wider application of the trust model may lead to some confusion over the irreducible core of the trust concept, in particular with regard to the beneficiary’s interest, the practical potential commercial benefits namely; protection against insolvency, the protective regime of fiduciary trust law and the flexibility of provisions that can be provided by the trust instrument mean that use of trusts in a commercial setting should be encouraged. Even if this means they require treatment different from traditional trusts because they are often difficult to accommodate within existing principles or categories.

[1] Hayton and Mitchell, Commentary and cases on the law of Trusts and Equitable Remedies (2010) p.16 [2] ibid [3] ibid [4] Rudden B (as cited in Langbein J.H., The Secret Life of the Trust: The Trust as an Instrument of Commerce (1997)) [5] Northern Developments Holdings Ltd (1978) [6] Scott A.W., The Nature of the Rights of the Cestui que Trust (1917), 17 Col. L. Rev. 269, pp 269-283 [7] Goode R.M., Ownership and Obligation in Commercial Transactions (1987) LQR [8] Parkinson P, Reconceptualising the Express Trust, Cambridge Law Journal 2002, pp 657-683. [9] ibid [10] Westdeutsche Landesbank Girozentrale v Islington Borough Council [1996] AC 669, 705 [11] McPhail v Doulton [1970] UKHL 1 [12] Parkinson P, (as n.8 above) [13] McFarlane and Stevens, The Nature of Equitable Property (2010) 4 Journal of Equity 1 [14] ibid [15] Hayton D, English Trusts and their Commercial Counterparts in Continental Europe (2002) [16] Barclays Bank Ltd v Quistclose Investments Ltd (1968) UKHL 4 [17] Swadling W, Orthodoxy In: Swadling W, The Quistclose Trust (2004) [18] Henry v Hammond [1913] 2 K.B. 515, 521 [19] Swadling W (as n.17 above) [20] McKendrick E, Commerce In: Swadling W, The Quistclose Trust (2004) [21] Bridge M, The Quistclose Trust in a World of Secured Transactions (1992) OJLS 333, 345 [22] Twinsectra Ltd v Yardley (2002) UKHL 12 [23] Goldcorp [1995] 1 AC 74 [24] Re Holiday Promotions (Europe) Ltd [1996] 2 BCLC 618 [25] McKendrick E (as n.20 above) [26] Carreras Rothmans Ltd v Freeman Mathews Treasure Ltd [1985] 1 All ER 155 [27] McKendrick E (as n.20 above) [28] Penner J, Lord Millet’s Analysis, In: Swadling W, The Quistclose Trust (2004) [29] Parkinson P, (as n.8 above) [30]

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Prostitution: how does the Current Law and Society Treat Women who are Prostitutes?

Prostitution – how does the current law and society treat women who are prostitutes? Prostitution is apparently the oldest profession in the world but equally it is one of the most denigrated and disparaged professions in the world. The stereotype of a prostitute is a downtrodden woman, probably with a drug habit, who ran away from home as young girl, could not find another way to make a living and somehow became trapped in a world she can never get away from. This may be because she does not know anything else or because her pimp has terrified her into continuing to sell herself for small amounts of money, most of which she gives to him to keep her ‘safe’. To compound the stereotype, there is the idea that prostitution causes wider criminal behaviour and the spreading of sexually transmitted infections and so if prostitution were to cease to exist there would be less crime and fewer incidences of HIV. Though as a general rule, people, including professional’s[1], consider the health risks to the general pubic and the crimes perpetrated against the general public rather than the crimes perpetrated against sex workers. As it is, prostitution per se is not illegal but associated activities are, consenting adults are actually able to participate in a ‘cash for sex’ transaction if they chose. It is how that transaction is arranged that the legislation makes reference to. Soliciting, procurement and kerb crawling are all illegal and have been for a long time, but convictions for these offences have dropped dramatically in the last fifteen years[2]. There are now further offences of trafficking[3] but in that offence the prostitutes are generally seen as the victims and society tends to be more sympathetic towards the women who become involved in prostitution via organised crime rather than their own desperate circumstances and lack of choices. While it is accepted that the true figures for those involved in prostitution in can never be accurately established because much of the industry is hidden, the Home Office estimates that there are around 80,000 people involved in prostitution[4]. This figure comprises of those who work on the street, in brothels, via escort agencies and also those who profit from prostitution without being involved in the act itself. It is not made clear how this figure is divided into involvement and gender but it is probably fair to assume that the majority of the people involved in the actual act are women.

Additionally, one paper quotes that there are 2000 young prostitutes working in the UK and a third of those are under 16[5], in that instance, who should the law treat as the criminal, the prostitute or the ‘customer’? The nature of a sexual act is not different because money has changed hands so presumably, a teenaged prostitute is as much a victim of abuse as any other minor who is engaged in a sexual act by an adult. However, notwithstanding the legislative position, the notion of prostitution is always going to evoke strong feelings from those within and outside the profession. How many prostitutes admit to how they make a living? Further, how many choose not to admit it because of public opinion rather than fear of the neighbours reporting her to the police? A prostitute’s character is almost always going to be called into question either by those who believe sex to be an expression of love, a necessity for procreation or because the idea of handing over cash in an alleyway in return for a sexual favour makes sex sordid and cheap. There is of course an opposite to this view, such as that proposed by Harris, that receiving ‘financial or material’ rewards for sex is not wrong, but a person being forced to do so through ‘economic, social or personal pressures’ is. Harris further suggests that it is typical of the British way of thinking that somebody who does such a personal act for gain rather than love of the act itself is considered of a lesser character than the amateur[6]. Whether such a simplistic argument, whatever the merits of it, would suffice to explain the vehement opinions of the masses against this issue remains to be seen. In 2004 the Government published ‘Paying the Price’[7], a Consultation Paper on prostitution produced on the premise that a new ‘realistic and coherent strategy’ is needed to deal with the prostitution, consequences it has on the individual and the wider community. Why this was produced after the Sexual Offences Act 2003 received the royal assent is unclear, however, it seems slightly perverse to amend legislation relaying to an issue and then ask questions about how to deal with that issue later. Some of the issues highlighted in the Paper were the nuisance caused to communities such as noise litter and harassment, the undermining effect or neighbourhood renewal and economic regeneration, the spread of sexually transmitted infections, links with drug abuse, child prostitution, grooming via the internet, social exclusion of prostitutes, impact on prostitutes families, increased criminal behaviour such as robbery and the effects on gender inequality.

Although there is nothing to suggest that these were listed in any kind of order of importance it is interesting that nuisance towards neighbours and the detrimental effect on economic regeneration were first and second on this list, particularly as public sympathy towards prostitutes is notoriously low. Turning now towards the legislation, previously the definition of the so called ‘common prostitute’ was a ‘woman who engages for reward in acts of lewdness with all and sundry’ [8]. Under the Sexual Offences Act 2003 (the 2003 Act) the definition of a prostitute is ‘a person (A) who, on at least one occasion, and whether or not compelled to do so, offers or provides sexual services to a person in return for payment or promise of payment to A or a third person’[9], the word ‘common’ does not appear in this definition thankfully. Until the 2003 Act was enacted, sexual offences were legislated for under Sexual Offences Act 1956 (the 1956 Act) and Sexual Offences Act 1985 (the 1985 Act), an obviously unsatisfactory situation.

Social attitudes towards prostitution have changed dramatically since that time and so the legislation was virtually antiquated in terms of public opinion. A brief synopsis of the law relating to prostitution is useful at this point, under the 1985 Act a man commits an offence if he solicits a woman for the purpose of prostitution from a motor vehicle in a public place or in a street or public place while in the immediate vicinity of a vehicle he has just got out of[10]. A man also commits an offence if he persistently solicits a woman in a street or public place for the purposes of prostitution[11] and under the 1956 Act it was an offence for a man to persistently solicit or importune in a public place for immoral purposes[12]. Under s. 1 Street Offences Act 1959 it is an offence for a ‘common prostitute’ to loiter or solicit in a public place for the purposes of prostitution. The 2003 Act has created new offences relating to prostitution and it is purported that the legislation focuses on prosecuting those who exploit prostitutes, such as ‘pimps’ and those who operate brothels. It is apparent that the Government are now turning towards criminalizing ‘agents’ of prostitution, the cynic may suggest that this has more to do with recovering the proceeds of crime via the Assets Recovery Agency rather than protecting prostitutes, but that does not make prostitutes any safer. Prostitutes are aware that the activities associated with prostitution are illegal yet they continue to work, are they to be expected to refrain from working under a ‘pimp’ because that is illegal, more pertinently, are prostitutes going to feel able to report the activities of a pimp when by necessity they will have to report themselves as prostitutes, bringing them to the attention of the authorities? The specifics of the above changes are as follows. Under s. 24 it was an offence to detain a woman on any premises for the purposes of unlawful sexual intercourse or against her will in a brothel. Under s. 28 it was offence to cause or encourage the prostitution of a girl under sixteen and under s.29 to cause the prostitution of a ‘defective’ girl.

These sections have all been replaced; offences relating to child prostitution are dealt with sections 47 – 51[13]. Under the 2003 Act a person commits an offence if he causes or incites a person to become a prostitute in any part of the world for the expectation of gain for himself or a third person[14] and if he intentionally controls the activities of another person in relation to that persons prostitution in any part of the world in the expectation of gain for himself or another person[15]. Both of these offences are triable either way and can result in a prison sentence of up to seven years if found guilty upon indictment. There is no dispute that some of the acts that prostitutes are asked to perform are what many people would consider ‘deviant’ and prostitutes are used in these circumstances because the males involved would not dream of asking their long term partners to perform such acts. Furthermore, they may also be acts that the woman would not dream of carrying out if a partner asked her to do so within their relationship and are therefore acting under duress when consenting to such an act for financial rewards. As unpleasant as this may seem you cannot legislate for the sexual desires of people who employ prostitutes, therefore, the legislation is always going to be ineffectual up to a point because it can only ever deal with attempting to manage prostitution. In all honesty, it is difficult to imagine a prostitute ever being fully protected as they will always be, up to a point, at the mercy of the person paying them to fulfil their desires. What would protect prostitutes would be a safer working environment, better access to health care and a well publicised programme that helps people to leave the profession if they wish to. The overhaul of sexual offences legislation was an opportunity for the Government to create ‘tolerance zones’, where prostitutes could work in groups, away from residential areas, in well lit areas that the police could control[16]. Or, more radically, legalise prostitution and allow the profession to be properly regulated. Farley believes that underneath the legalisation of prostitution lies the acceptance that prostitution is inevitable which it is not[17]. However, it is, prostitution is apparently the oldest profession in the world, the UK sex industry alone is worth A£1 billion per year[18] if that does not point towards the fact that people are willing to pay for sexual gratification then nothing will. Therefore, if prostitution is inevitable why not do what ever is necessary to make it safe for women to be prostitutes? In addition to the failures of the 2003 Act to properly protect prostitutes, it has to be said that the protection it attempts to provide with one hand, it takes away with the other. The focus of legislation surrounding prostitution is supposedly on minimising the exploitation of prostitutes, making the agents the focus of criminal attention, yet the Crime and Disorder Act 1998 allows for prostitutes to be penalised for working as prostitutes via the imposition of an Anti-Social Behaviour Order (ASBO) if their behaviour causes ‘harassment, alarm or distress’ to the public. In order to demonstrate the effect that this can have, consider the case of the Manchester prostitute Joette Lydiate who has been banned for soliciting anywhere is England and Wales[19]. Ms Lydiate now faces up to five years imprisonment should she breach this order, but what help has she been offered to allow her to move away from that life? It is a known fact that the reason most prostitutes have worked for such a long time is because they know little else and they have found themselves in a cycle that they cannot break. As Sanders[20] has commented, the main effect that imposing an ASBO on a prostitute has is driving them further underground and therefore in to even more dangerous situations as the women work later at night, alone rather than in pairs, and they are more likely to take any work that comes their way rather than consider the risks and then make a choice.

They do this because they have to in order to earn a living. Sanders also makes the point that it is nearly always the female prostitute who is served with the ASBO, not the pimp who is exploiting her or the kerb crawlers who perpetuate the necessity for prostitution as a profession. If this is to continue, the 2003 Act will do little to protect prostitutes and may even have the opposite effect because they will be become even more hidden than they already are and as such much more vulnerable. As human rights have become a much bigger issue in recent years so has the issue of prostitution and human rights. Mackinnon has been quite forthright on the subject of prostitution as an abuse of human rights[21] claiming that it is a tolerated form of slavery despite the fact that slavery was abolished 200 years ago. If this argument were to be accepted in the UK that would render prostitution incompatible with Article 4 of the Human Rights Act 1998 (HRA), the prohibition of slavery and enforced labour. She also suggests that as prostitutes are often raped, forced to carry out various acts that are degrading and humiliating and ‘subject to cruel and brutal treatment without human limits’ they are tortured, if this argument is accepted this makes prostitution incompatible with Article 3 HRA, the prohibition of torture.

Additionally, keeping a woman against her will in a brothel would also be incompatible with Article 5, the right to liberty and security. While this argument may be supportable in terms of those who are forced into prostitution either by another person or social or financial circumstances it does not take any account of those women who choose to enter into prostitution as a viable means of supporting themselves and their family and therefore Article 8, the right to respect for private and family life. Mackinnon is not alone in viewing prostitution as a violation of human rights, which is not really surprising. Another group of authors carried out a study in five different countries and concluded that prostitution is an act of violence against women and a human rights violation that can, and in many cases does, result in post-traumatic stress disorder[22]. The study showed that the majority of those in prostitution are poor women who have entered into prostitution on the back of sexual abuse as a child and prostitution as a vocation is seen as a reasonable job for a poor uneducated woman to perform, but not for a more ‘respectable’ middle class woman to become involved. Again while it is easy to see the arguments that enforced prostitution is a violation of human rights, this study still does not consider those who opt into prostitution via their own free will. While these women may make up the minority of the profession, they still exist, as difficult as it may be to comprehend that a woman would chose to sell her body for financial reward, it does happen. In conclusion, while the 2003 Act purports to make the exploitation of prostitution the target of legislation it still does not go far enough to protect prostitutes.

The Government has had the opportunity to pilot ‘tolerance zones’ in larger cities where prostitution is prevalent and has declined to do so thus far. Such zones are operated not with the intention of condoning prostitution but providing a safer environment for prostitutes to operate in. Cracking down on the exploitation of prostitutes is all well and good but it is not merely a prostitutes earnings that need to be protected it is the woman as well. If the Government were to trial tolerance zones they would surely see a sharp decline in the number of rapes, assaults and murders of prostitutes, it might also encourage them to come forward when they have been attacked. Or to take it one step further, as we have seen, prostitution per se is not illegal, therefore, why not decriminalise the associated offences as well and focus on regulating exploitation of prostitutes via trafficking and forcing people into prostitution against their wishes? Obviously this would be a very controversial step and the legislation would have to be very clear on exactly what the boundaries are but it would at least provide protection for women who are currently forced to work in dark alleyways and have unprotected sex with strangers. The reality is that prostitution is not going be the first choice for most women, Mackinnon asks ‘If prostitution is a free choice, why is it the women with the fewest choices are the ones most often found doing it?’[23] and this is a pertinent question, however, in order to solve that problem you have to solve much wider issues in society.

Poverty, lack of education, abuse within the home, drug dependency and racism all contribute towards women entering prostitution and all of these are issues that have to be addressed, but this will take a lot of time and an global effort, in that case, it is better to improve the conditions of those working in the sex industry now, while also working on giving women more choices so they can leave the industry when they want to, or never feel it necessary to become part of it. Bibliography: Articles: Farley, M., Bad for the Body, Bad for the Heart: Prostitution Harms Women Even If Legalised or Decriminalised, Violence Against Women, (2004), 10, 1087 – 1125 Farley, M. et al, Prostitution in Five Countries: Violence & Post-Traumatic Stress Disorder, Feminism and Psychology, (1998), 8(4), 405 – 426 Farley, M. & Kelly, P., Prostitution: A Critical Review of the Medical & Social Sciences Literature, Women & Criminal Justice, (2000), 11(4), 29 – 64 Brewer, D. et al, Prostitution & the Sex Discrepancy in the in Reported Number of Sexual Partners, Proceedings of the National Academy of the Sciences in the USA, (October 2000), 97(22), 12385 – 12388 MacKinnon, C.A., Prostitution & Civil Rights, Michigan Journal of Gender and Law, (1993), 1, 13- 33 Sanders, T., Anti-Social Behaviour Orders: the Impact of New UK Legislation on Street Based Sex Workers, https://www.nswp.org/safety/unvaw-0504/unvaw-0504-09.html Books: Harris, J., The Value of Life – An Introduction to Medical Ethics, (Routledge: 1985), pp 281 Government Publications: Home Office, Paying the Price: A Consultation Paper on Prostitution, (July 2004) Cusick, L & Martin, A., Home Office Research Study 268: Vulnerability and Involvement in Drug Use and Sex Work, (Home Office: November 2003) World Wide Web: https://www.amnesty.org.uk https://bbc.co.uk https://coe.int/T/E/Human_Rights/Trafficking/ www.cps.gov.uk https://guardian.co.uk https://www.homeoffice.gov.uk/rds/ www.manchester.gov.uk https://www.nswp.org/safety/unvaw-0504/unvaw-0504-09.html https://www.prostitutionresearch.com https://www.un.org.uk

Footnotes

[1] Farl Far [2] [3] [4] [5] [6] [7] [8] [9] [10] [11] [12] [13] [14] [15] [16] [17] [18] [19] [20] [21] [22] [23]

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The Treatment of Women Murderers Essay Example Pdf

‘Female defendants are processed within the criminal justice system in accordance with the crimes which they committed and the extent to which the commission of the act and its nature deviate from appropriate female behaviour’ – Susan Edwards, Women on Trial (Manchester: Manchester University Press, 1984) p.213. Critically discuss the above statement, with particular reference to women who kill. It is abundantly clear that there is a contrast in the way the criminal justice system treats male and female defendants. Great importance is placed on the extent to which the female perpetrators act deviates from what is considered ‘appropriate female behaviour.’ The same cannot be said for men, when a male commits homicide there is no generic gendered stereotype that causes this crime to be surprising for the prosecution, or that provides the male with an exclusive list of qualities which he is presumed to possess. Considering women as “perpetrators of violence is a relatively rare phenomenon,”

[1] whereas when a man commits a crime one could suggest that the act is taken prima facie by the court and is not engulfed by a deeper context and a requirement for further explanation, as is the case with women, especially those who kill. It is due to this apparent need by the criminal justice system to delve further into the reasoning behind an act of homicide committed by a female, that I aim to explore the fact that the extent to which a female deviates from the gender appropriate stereotype affects the way she is processed within the criminal justice system. Recent statistics show that the number of “women in prison or on parole has increased threefold.”[2]It has been proposed that the “increase in female offending seen in recent years is attributable to women adopting more masculine traits and behaviours.”[3]There is an ample amount of evidence that masculinity “is a salient aspect of the criminal stereotype.”[4]However, I believe that the traditional female stereotype is a somewhat archaic notion as societal progression has engendered equality for women.

Traditionally there was a clear archetype of what a woman should be and how she should act. Hilaire Barnett stated that “women are the bearers of children, the nurturers of children, the homemakers and (unpaid) home keepers.”

[5] One could question whether this is entirely relevant in today’s society; women are now more self sufficient and independent from men and many choose to pursue a career before having a family. Thus, I pose the idea that this equality should be carried through to the courtroom. Although the feminist movement has been successful in creating equal perceptions of women and men, it is clear that this equality has not fully transgressed into the court room. It is apparent that in order for a woman to benefit from a more lenient sentence they must adhere to gender appropriate behaviour. Sharon Hays stated that “motherhood is the ultimate fulfilment of a woman; it is a natural and necessary experience for all women.”

[6] The fact that women are ‘supposed’ to have a caring and nurturing persona makes it all the more shocking within the criminal justice system when they commit a crime, especially murder. Whereas a man is sentenced based on the act itself, it appears that a woman is sentenced based on the extent to which her act deviates from what is deemed appropriate for a female, almost as if the woman’s character and her conformity to appropriate feminine behaviour is on trial rather than her criminal actions.

One could view it as rather arbitrary that women who fit the gendered ideal a treated more leniently than those who do not. This is prominent in the cases of Ana Cardona and Maria Perez.

These women did not fit the typical female stereotype and the prosecution highlighted this. During the sentencing of Maria Perez, the prosecution “attempted to defeminise her by highlighting her lesbian sexual orientation, portraying her dress and demeanour as manly.”

[7] Ana Cardona was also perceived as having a more masculine appearance, it is clear that a woman’s correspondence with feminine traits plays an important role in the prosecution and judgement of their guilt. The discrepancy in the way female defendants are processed within the criminal justice system as opposed to men can be observed by looking at the judges sentencing remarks in the case of R v Philpott, Mairead Philpott and Paul Moseley.

[8] Upon reading the judgment of Michael Philpott in comparison with his wife Mairead Philpott it is clear that the judges have varying focuses whilst sentencing the male and female defendants. During the sentencing of Michael Philpott the judges focused on his “callous selfishness”

[9] of the crime itself and labelled him a “disturbingly dangerous man.”[10] Whereas upon delivering the judgment to Mairead the judges concentrated on her role as a mother and how she could possibly put her children through the traumatic ordeal and how frightened the children must have been. Traditionally and stereotypically a women should be seen as a homemaker and loving and doting mother who places her children above anything, the prosecution placed emphasis on Mairead’s deviation from the gendered ideal by stating “you put Michael Philpott above your children and as a result they have died.”[11]These sentencing remarks depict the stark difference in how men and women are assumed to act.

Although the crimes were the same from the two defendants a further emphasis of guilt was placed on Mairead due to her apparent failure as a mother. As aforementioned, the extent to which a female defendant deviates from what is believed to be appropriate female behaviour plays an important role in the prosecution. This can be observed through scrutiny of legal discourse within the courtroom which undoubtedly “participates in this construction of sexual difference, producing fixed notions of the sexed body.”[12] It is “evident that the dialogue in the trial of Rose West maintained the distinction of male and female by problematising atypical female behaviour.”[13] Although West committed the crimes in conjunction with her husband, more focus was placed on her deviant sexuality throughout the hearing. Siobhan Weare depicts that the judge drew seemingly irrelevant attention to the fact that “she possessed a collection of dildos, rubber underwear and pornographic videos”. Weare states that “this collection of sex toys was depicted as solely belonging to Rose, despite the fact that it could have just as easily belonged to both her and her husband.”[14] This information had little legal relevance and the fact the judges placed emphasis on the matter shows that the prosecution wanted to accentuate her sexual depravity, in a way that they did not with Fred. The court drew attention to the ways Rose strayed from what is traditionally ‘acceptable’ for a woman such as her sexual depravity and perversion, instead of purely focusing on the horrific crimes she executed. Even though an aim for sexual equality is at the forefront of society, this does not appear to be the case within the courtroom.

From a feminist perspective, one could suggest that the defendants should have been tried in accordance with their crimes and without the further focus on Rose’s sexual endeavours rather than Fred’s purely due to her gender. Women who kill after suffering from domestic violence, namely battered women are of particular relevance when exploring how women are treated in the criminal justice system. It has been suggested that battered women are more readily allowed such a defence if they are seen to be adhering to the female stereotype and feminine traits of helplessness and coercion. Battered Woman Syndrome (BWS) was developed to “help establish the reasonableness of homicide by battered women.”[15]One could propose that women are not treated in accordance with the crimes they commit as if they meet the female stereotype; this gendered ideal could allow them a more lenient sentence. If a women is claiming to have killed due to suffering from domestic abuse , it would be entirely in her favour if she lives up to the traditional female stereotype in order to be granted the defence of BWS. Kathleen Ferraro stated that a woman possessing “assertiveness, strength and an outgoing personality are inconsistent with being a battered woman.”[16] After the Coroners and Justice Act 2009[17] women who use “evidence of BWS to support a plea of diminished responsibility will be labelled as mad.”[18] Equality within the court room could be seen as finally blooming due to ‘loss of control’ being implemented as a new partial defence to murder. Traditionally women were only seen as victims of crime and not perpetrators, thus were rarely sentenced in accordance with the crimes they committed as it was believed that the crime must be the result of a mental issue. However, now the idea exists that women can be perpetrators because they are victims.

Those women who show no signs of being a victim within their crime are deemed to be extremely far from the female stereotype and thus are sentenced more harshly. If a woman presents themselves as sufficiently ‘battered’ in court, they are conforming to the feminine ideal of helplessness and that of a victim. It seems rather unjust that in order for a woman to stand a higher chance of being granted the defence of BWS they must fit certain aesthetic and personality criteria. A woman may not naturally fit this ideal but still be a victim of domestic violence who was pushed into committing homicide. Ideally all crimes would be taken based on the actual act; unfortunately this is not case. This is a key difference in the extent to which men and women are sentenced in accordance to their crimes. The Infanticide Act 1938[19] was the result of “a policy decision to promote leniency for women who kill their own children.”[20]As predominant focus when sentencing women is the mental side of the crime, infanticide allows women a defence to the murder of a child due to lack of mental reasoning rather than focusing on the act she actually committed. If a man was to kill a child the same would not be an option. I fully appreciate that there exists a clinically diagnosed mental issue of puerperal psychosis where a woman kills a child. However, many women are able to claim this defence when it is not fully proven that they are suffering from any form of medically diagnosed psychosis. In giving the label of victim to female killers denies their agency “by portraying them as so profoundly victimised that is difficult to regard them as ever having engaged in an intentional act in their lives.”[21] Thus, one could argue that the focus on a woman’s mental capacity allows for them to be treated more leniently within the criminal justice system as opposed to men, who are punished in accordance with the crime they commit without any need to find further explanation. The defences of BWS and Infanticide annotate women as victims or ‘mad’. There is an overemphasis on the mental reasoning of women who commit crime. A woman is painted more as a victim of external influences that caused her to commit a crime rather than a ‘cold blooded killer’. A further explanation as to the reasons women commit crimes is sought. Justice Minister Helen Grant stated that women within the prison populations are “more likely to have been abused as children.”[22] Traditional criminological theory “historically tended to view women as driven to crime because of biological influences, whereas men were viewed as turning to crime due to economic or sociological forces.” [23] This insistence on delivering excuses for women who commit crimes and especially women who kill, so long as they meet the female stereotype denies women from being solely sentenced in accordance with the crime they committed in the same way that male perpetrators are. Females who commit homicide are “described with respect to personality style and behaviour patterns.”[24]However, in the society in which we live one could suggest that “men and women are equally likely to suffer from complex mental issues.”[25]The Freudian notion that “men are rational”[26] and that “women are driven by their biological constitutions”[27] is obviously outdated.

Evidence suggests that legally this is not as willingly acknowledged as defences relating to mental issues are more associated with women. In the 21st century men and women are deemed more or less equally in mental and physical capabilities, a higher level of equality exists within the work place and within relationships than ever before. Thus, I believe that the criminal justice system is perhaps a little backward in its placement of women in respect to them committing crimes; one could propose that it is almost obsolete to suggest that women cannot be the perpetrators of crime.

Women are leaving the antiquated notion and definition of ‘femininity’ behind, such as that of a ‘homemaker’ and ‘nurturer’. However, the way women are treated by the criminal justice system is discrepant to how the rest of society views them. It is an inarguable statistical truth that more men commit crimes than women, yet it is clear from the plethora of cases that support my argument that the court sentences women in an entirely different way than it does men, to the extent that they are not sentenced in accordance with the crime that was committed. However, are sentenced in accordance with how closely they match the traditional gendered stereotype. Helen Gavin stated that “women who kill multiple times are guilty not just of serial murder, but of being women who step outside of the persona that society creates for them.”[28]The current system benefits those women who fit this stereotypical female persona. For those women who do not meet the desired criteria or expectations are sentenced more harshly. This ‘double deviance’ of firstly deviating from the law in committing the crime and secondly deviating from the female stereotype, could end in double jeopardy for the defendant.

Within the criminal justice system “aberrant femininity is constructed as evil.”[29]However, instead of focusing on the fact that a woman has not acted in the ‘correct’ womanly way, the focus should be shifted to ensure women are sentenced in accordance with the crime they have committed, not punished more harshly or conversely more leniently simply because they are a women. As explored, gender plays an astoundingly critical role within the criminal justice system. Instead of being sentenced in accordance with the perpetrated crime, one agrees with latter half of Susan Edwards statement that a woman is sentenced in regards to the extent of which her crime deviates from “appropriate female behaviour.”[30] During the sentencing of women who do not fit the gender stereotype focus is placed on seemingly irrelevant matters of their identity and/or sexual orientation and how this deviates from what is considered acceptable of a woman. If the prosecution successfully portray a woman as “an ‘anti mother’, as sexually predatory, or as domineering is unlikely to receive mercy, only the wrath of the criminal justice system.”[31] One suggests a lack of absurdity in proposing that women are just as capable of committing homicide as men. Throughout sentencing a woman’s mental state is discussed to a much higher extent than mens, describing women as ‘neurotic’ and ‘mad’ for committing crimes is old-fashioned, the equality that women enjoy in today’s society should transpire into the courtroom, thus ensuring they are sentenced in accordance with their crimes. Word Count: 2,500 Bibliography: Demody Leonard E. (2002) ‘Convicted Survivors: the Imprisonment of Battered Women Who Kill’ Net Library p.9 Winter J. (2002) ‘The Truth Will Out? The Role of Judicial Advocacy and Gender in Verdict Construction’ Social and Legal Studies p. 358 Gavin H. (2013) ‘Evil or Insane? The Female Serial Killer and her Doubly Deviant Femininity’ University of Huddersfield Repository p. 13 Belknapp J. (2006) ‘The invisible Woman: Gender Crime and Justice’ Wadsworth Publishing Co Inc p. 26 Cole K. E. (1968) ‘Women Who Kill, A Sociopsychological Study’ Arch Gen Psychiatry p. 1 Weare S. (2013) ‘“The Mad”, “The Bad”, “The Victim”: Gendered Constructions of Women Who Kill Within the Criminal Justice System’ Laws p. 338 Oggle R and Maier –Katkin D. (1993) ‘A Rationale for Infanticide Law’ Criminal Law Review p. 903 Ward C, Flowe H and Humphries J. (2012) ‘The Effects of Masculinity and Suspect Gender on Perceptions of Guilt’ Applied Cognitive Psychology p. 482 Barnett H. (1998) ‘Introduction to Feminist Jurisprudence’ Cavendish Publishing Limited p. 43 Chesney-Lind M and Pasko L J. (2004) ‘The Female Offender: Girls, Women and Crime’ Sage Publications p. 139 Edwards S. (1984) ‘Women on Trial’ Manchester University Press p. 213 Websites: Fogg A. (2013) ‘Yes – Reduce Prison Sentences But Not Just For Women’ https://www.theguardian.com/commentisfree/2013/mar/26/prison-changes-women Date accessed 3rd January 2015 R v Philpott, Philpott and Moseley, Sentencing Remarks, https://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Judgments/r-v-philpott-philpott-and-mosley-sentencing-remarks.pdf Date accessed 2nd January 2015

[1] Siobhan Weare, ‘ “The Mad”, “The Bad”, “The Victim”: Gendered Constructions of Women Who Kill Within the Criminal Justice System’ (2013) Laws 340

[2] Meda Chesney-Lind and Lisa J Pasko, ‘The Female Offender: Girls, Women and Crime’ (2004) Sage Publications 139

[7] Charlotte Ward, Heather Flowe and Joyce Humphries, ‘The Effects of Masculinity and Suspect Gender on Perceptions of Guilt’ (2012) Applied Cognitive Psychology 482

29] ibid.

[5] Hilaire Barnett, ‘Introduction to Feminist Jurisprudence’ (1998)Cavendish Publishing Limited 43

[6] Sharon Hays 1996

[7] Charlotte Ward, Heather Flowe and Joyce Humphries, ‘The Effects of Masculinity and Suspect Gender on Perceptions of Guilt’ (2012) Applied Cognitive Psychology 482

[8] R v Philpott, Mairead Philpott and Paul Moseley [2013] EWHC 773

[9] R v Philpott, Mairead Philpott and Paul Moseley, Sentencing Remarks, https://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Judgments/r-v-philpott-philpott-and-mosley-sentencing-remarks.pdf accessed 2nd January 2015 [10] ibid. [11] ibid. [12] Jo Winter, ‘The Truth Will Out? The Role of Judicial Advocacy and Gender in Verdict Construction’ (2002) Social and Legal Studies 354 [13]ibid at 355 [14] Siobhan Weare, ‘“The Mad”, “The Bad”, “The Victim”: Gendered Constructions of Women Who Kill Within the Criminal Justice System’ (2013) Laws 348 [15] ibid at 338 [16] ibid. [17] Coroners and Justice Act 2009 [18] Siobhan Weare, ‘ “The Mad”, “The Bad”, “The Victim”: Gendered Constructions of Women Who Kill Within the Criminal Justice System’ (2013) Laws 339 [19] Infanticide Act 1938 [20] Robbin Oggle and Daniel Maier –Katkin, ‘A Rationale for Infanticide Law’ (1993) Criminal Law Review 903 [21] Siobhan Weare, ‘ “The Mad”, “The Bad”, “The Victim”: Gendered Constructions of Women Who Kill Within the Criminal Justice System’ (2013) Laws 338 [22]Ally Fogg, ‘Yes – Reduce Prison Sentencing, But Not Just For Women’ (2013) https://www.theguardian.com/commentisfree/2013/mar/26/prison-changes-women accessed 3rd January 2015 [23] Joanne Belknapp, ‘The invisible Woman: Gender Crime and Justice’ (2006) Wadsworth Publishing Co Inc 26 [24] K.E. Cole, ‘Women Who Kill, A Sociopsychological Study’ (1968) Arch Gen Psychiatry 1 [25] Ally Fogg, ‘Yes – Reduce Prison Sentencing, But Not Just For Women’ (2013) https://www.theguardian.com/commentisfree/2013/mar/26/prison-changes-women accessed 3rd January 2015 [26] Joanne Belknapp, ‘The invisible Woman: Gender Crime and Justice’ (2006) Wadsworth Publishing Co Inc 26 [27] ibid. [28] Helen Gavin, ‘Evil or Insane? The Female Serial Killer and her Doubly Deviant Femininity’ (2013) University of Huddersfield Repository 13 [29] ibid. [30] Susan Edwards, ‘Women on Trial’ (1984) Manchester University Press 213 [31] Jo Winter, ‘The Truth Will Out? The Role of Judicial Advocacy and Gender in Verdict Construction’ (2002) Social and Legal Studies 358

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UK’s Unwritten Constitution

“The unwritten nature of the UK constitution has made the legal system of the UK even better structured. It has the most supreme authority over its institutions and is organised enough as to run the functions of parliament in comparison to the written constitution of the people’s republic of Bangladesh” Critically analyse. Every state has an ultimate source of legal authority. A written constitution is a document which provides the state an ultimate authority.

[1] By contrast, United Kingdom (UK) does not have a written constitution[2], as a result, the ultimate law-making power lies with Parliament, the House of Commons (HC), House of Lords (HL) and the Crown[3]. For this everything that happening in UK it is constitutional and if nothing happens that would be constitutional also.

[4] But as the parliament and judges are the safeguards of justice and liberty and they embody the spirit of the constitution[5]in compare to giving unconditional power to the Westminster Parliament and carefully limiting the powers of Bangladesh parliament by the constitutional or judicial supremacy concept it is very doubtful in reality that whether man is enough of a political animal to produce a good, sensible, serious and efficient constitution as all the evidence is against it.

[6] (George Bernard Shaw). In other word in this question i will discuss the importance of a constitution and the nature of it exist in UK and Bangladesh and finally i will give a compare idea of two kind of supremacy exist in a constitutional system, which is most justifiable to uphold and maintain the liberty and justice in a democratic system, in reality. A constitution is defined by Aristotle (b. 384 – d. 322 BCE)

[7] as the way of life that the state has chosen for itself

[8] and it is the highest of all.

[9] He identifies it as same with the government.[10] [11] But According to Thomas Pains and De Tocqueville the constitution means the aggregate[12] of only those written principles which regulate the administration of the state. K.C Wheare, Hood Phillips and Gilchrist included also the unwritten principles.[13]So, whether it is in written or unwritten, it is a collection of principles[14] and rules, which identify and regulate the major institution of the state and govern and define the relationship between the state and individual citizen; i.e. define the extent of civil liberty.[15] At first considering the UK constitution, which is a product of gradual evolution and its main features are- Unwritten, Flexible, Unitary, Supremacy prevail to parliament, generally centralised, Monarchical in nature with a Bicameral parliament.[16] It is wildly known as un-codified constitution for its main sources, like Israel and New Zealand.[17] As the main sources of UK constitutional are – (i) Parliamentary statutes (ii) Conventions and custom (iii) Historical Principles(the sovereignty of Parliament, rule of law) (iv) Common Law (v) Royal prerogative (vi) European laws. Due to its flexible nature, the constitution is described as a ‘constitution in flux’[18]. On the other hand the Constitution of Bangladesh (BD) is the product of the Liberation Struggle. After nine month war Bangladesh achieved its independent on 16th December 1971 from Pakistan and soon after only within eleven month on 4th November 1972 the final draft was adopted by its Constituent Assembly.[19]The Silent features of this constitutions are- Written, Rigid, Preamble, and Supremacy of the constitution, unitary govt. system, Independence of judiciary, Fundamental Principle and rights. It has a unicameral parliament.[20] So, in compare to the Bangladesh constitution some argued that British Constitution should be codified. As a written constitution would be a better safeguard for the people’s rights, Liberals and freedoms. It reduces the executive powers of the Politian’s. It’s creating much better public awareness. But there are some arguments for an un-codified constitution those are- It is adaptable to changing circumstances as it is easy to amend.

The power of unelected bodies has simply passed to elected or accountable bodies. The constitutional safeguards are weaker in the UK Governments can respond more easily to crises such as the increased terror threat after 9/11. It has stood the test of time, unlike much of the Countries there have been no violent revolutions or civil wars for several centuries.[21]So, it is so much justified that the un-codified nature of UK constitution is more efficient from a written one. Now, I will give a compare idea about constitutional supremacy in Bangladesh with the parliamentary supremacy in UK. Firstly considering the UK constitution the doctrine of the unlimited sovereignty of parliament in UK is a product of a long struggle between parliament and the crown which culminated in 1688 with the bill of rights 1689.[22] As According to A.V. Dicey (1885) sovereignty are of two types, legal sovereignty and political sovereignty. [23] The people hold political sovereignty whilst legal sovereignty rests with the “Queen in Parliament” in UK.[24] Dicey had illustrated three main rules of legal sovereignty. According to the first principle of Dicey, Parliament is the supreme law making body and may enact laws on any subject matter. For instance UK parliament in 1716, to extend its own life enacted the Septennial Act to extending the duration of parliament from 3 to 7 years (Now 5 years by Parliament Act 1911, s.7). By enacting the Act of Settlement 1700[25] and His Majesty’s Declaration of Abdication Act 1936,[26] now UK parliament may legislate to change the succession to the throne. By passing the Union act with Scotland in 1706[27], Parliament may abolish itself and reconstitute itself as a different body. Now it may also legislate to alter its own powers (Parliament Act 1911 and 1949) by enacting the House of Lords Act 1999, its removed the hereditary peers from the Upper House. UK Parliament may grant independence to dependent states, whether dominions or colonies, as with the Nigeria Independence Act 1960 and the Zimbabwe Independence Act 1979. UK Parliament can pass laws which are retrospective or prospective. Following the House of Lords decision in Burmah Oil Company v Lord Advocate, [28]parliament passed retrospective legislation, the War Damage Act 1965 to nullify the effect of the House of Lord’s decision.[29] UK Parliament may legislate with extra territorial effect beyond the jurisdiction of the UK even if this produces a conflict with international law. (See Cheney v Conn [30]and Morisneen v Peters [31]case). As, the Aviation Security Act 1982, which extends the jurisdiction of the courts to try the hijacking cases irrespective of the territory in which the offence occurred. It can also pass laws which are contrary to fundamental constitutional principles (R v Jordan[32]). In R v Secretary of state for the Home Department ex parte Simms Lord Hoffman stated that the principle of Parliamentary Sovereignty means that parliament can if it chooses; legislate contrary to fundamental principles of human rights.[33]So we can say that according to Sir Ivor Jennings (1882) parliament can legislate to ban smoking on the streets of Paris.

However it is important to note that Dicey’s theory is concerned purely with the absence of any legal limitations on Parliament. He acknowledged that there were clearly political limits on what parliament could do. According to him sovereignty is limited on every side by the possibility of popular resistance. The second limb of Dicey is, No Parliament may be bound by his predecessor or bind his successor. That means each parliament must enjoy the same unlimited power as any before it. In Austin’s word “illimitable”. Two forms of repeal exist to signify that fact that parliament are not bound.

They are; As Express Repeal is where legislation is passed which expressly states its intention an act should be repealed. There are some strong arguments that the UK has succeeding in binding itself in this way in considering the effect of human rights act 1998 and the European Communities 1972. However there is also the argument that the requirement to use express words is not particular onerous and represents at best a limited form of entrenchment. Another, the doctrine of implied repeal provides the mechanism by which the judge gives effects to the rule against Parliament being bound by previous Parliaments. If Parliament passed an Act and did not repeal the previous Act expressly, then the doctrine of implied repeal come into the play and the judges will apply the latest statute deeming that the earlier Act was impliedly repealed. The two cases (Vauxhall Estates LTD v Liverpool Corporation 1932[34]) and (Allen Street Estates LTD v Minister of Health 1934[35]) illustrated the principle of doctrine of implied repeal. As The Statute of Westminster 1931, s4 was enacted to give statutory force to the convention that the UK parliament would not legislate for Dominions without their consent.

The Statute imposes substantive and procedural restrictions on Parliament’s ability to legislate for former colonies. In Blackburn v AG Lord Denning stated that, in legal theory one parliament cannot bind another. But legal theory does not always march alongside political reality. Legal theory must give way to practical politics.[36] (British coal corporation v The King case )[37] But In manuel v AG[38]and Megarry v C case clearly restated the orthodox view of sovereignty. In this view, “it is a fundamental of the English Constitution that Parliament is supreme. As a matter of law the courts of England recognize Parliament as being in all same the power to destroy its own omnipotence”. There can be seen that the grants of independence do impose political limits on parliament but do not limit the legal power of Westminster to pass laws governing these states. Furthermore, The Act of Union with Scotland 1707 provided a fertile source for academic debate which remains a powerful argument against the unlimited freedom of any Parliament at any time to legislation. In the words of Prof. J Mitchell the near parliament was ‘born unfree’, because the Acts bind and limits the power of Parliament [39]( MacCormick v Lord Advocate [40]and Gibson v Lord Advocate stated the above also). In Attorney-General for New South Water v Trethowan[41]case others the validity of the Constitution (Legislative Council) Amendment Act 1929 was tested also.[42] But according to Dicey’s viewed the acts as having no higher legal status than any other act and could not threaten sovereignty. As the UK Parliament has altered may of the principles contained in both the Scottish and Irish Acts of Union. Further the judicial remarks were obiter and for others arguments some academics have challenged that as parliament cannot bind its successors as a result of some commonwealth cases. The third limb of A. V. Dicey is, no person or body – including a court of law- may question the validity of Parliament’s enactments. As the manner in which sovereignty is upheld in UK is through judicial decisions.

Lord Denning stated this as “in my opinion, it is the function of the court to see that the procedure of the Parliament itself is not abused and that undue advantage is not taken of it. In so doing the court is not trespassing on the jurisdiction of Parliament itself. It is acting in aid of Parliament, and, I might add, in aid of justice. If is proved that Parliament was misled, the court can and should draw it to the attention of Parliament.” But, the House of Lords rejected this view and Lord Reid stated, “The function of the courts is to construe and apply the enactments of Parliament. The courts have no concern in the proceedings how the Act was passed.” (Pickin v British Railways Board 1974[43]and Jackson v Attorney General 2006 )[44] The U.K. has incorporated the European Convention of Human Rights (ECHR) into domestic law through the Human Rights Act 1998 (HRA 1998). It imposes some obligations on Parliament and judges. Under this act Section 3 requires the legislation to be interpreted as far as possible in a way which is compatible with Convention rights. Section 4 allows the higher courts to make a ‘declaration of incompatibility’ but the courts cannot declare an Act of Parliament invalid. If the Act is not compatible with Convention rights, then the courts have to leave it to Parliament to enact the necessary changes. (Thoburn v Sunderland City Council 2002)[45] Furthermore the UK became a member of European Community by means of European Communities Act 1972 (ECA 1972). The ECA 1972, Section 2 and Section 2(4) has radically altered the standing of Parliamentary Sovereignty. In Van Gend en Loos (1963) the European Court of Justice (ECJ) held that by signing treaties, the member states had created a new legal order in which individual states had limited their sovereign rights.[46] In Internationale Handelsgesellschaft (1970[47]) where ECJ stated that EU law is even superior to U.K. law. (Factortame no. 1 to 5.)[48] Moreover, in Simmenthal case, ECJ held that EU law is superior to national law whenever enacted.[49] As discussed above, EU and ECHR law is superior to English law and now U.K. parliament will not enact any law which is contrary to EU law and violates of Human rights. Therefore, rule 1 of A.V. Dicey is violated. As far as present U.K. Parliament is concerned, it is still bound by the obligations which were accepted by the Parliament of 1972 and HRA 1998. This is the violation of rule 2 of A.V. Dicey.

Moreover, if U.K. Parliament enacts any law contrary to EU law, U.K. courts will never accept it. Moreover, judges now have the power to issue ‘Declaration of incompatibility’ if the law is contrary to human rights .This is a form of challenge and therefore rule 3 of A.V. Dicey is violated. However, theoretically Sovereignty of Parliament remains as the Parliament can repeal the ECA 1972 and HRA 1998 and take UK out from EU. But in practical, it may not be possible due to ever increasing involvement of the U.K. with the European Communities and as the HRA 1998 it provides basic rights and freedom to the citizen of UK. To sum up, it is to say that, by the passage of time, parliamentary sovereignty has become limited to some extent. Since 1689 to recent time, numerous changes has occurred and thus, Dicey’s limbs of parliamentary sovereignty has lost their significance to some extent and are not relevant with todays modern changed civilization. But, it is essential to say that, under an uncodified constitution of United Kingdom, Dicey’s theory and principles of parliamentary sovereignty has provided a guideline to the United Kingdom. In conclusion, it can be said that with the inclusion of membership of EU and incorporation of HRA 1998, it is obvious that Parliament’s law making power has been practically limited and partial, but theoretically parliamentary sovereignty remains in UK. In other words, all legally organised parliaments have limited powers. The Westminster Parliament has constitutionally limited powers, very much like banglad

[1] H. Barnett, Constitutional & Administrative Law (7th ed. 2008), chapter 6, at P.146.

[2] H.A. Barnett and Morison, Public law, University of London subject Guide, 2012(London, UOL, 2012), P 20.

[3] See (n) 1 H Barnett (2009) P.146 [4](Griffith ‘The Political Constitution’) Belal Husain Joy, Constitutional History of Bangladesh,1st ed (Dhaka, Bangladesh Law Book Company, 2008)P 7

[5] Lord Denning , The Changing Law , 1953 , P 18

[6] See (n) 3 Belal Husain Joy (2008) P 7

[7] < https://plato.stanford.edu/entries/aristotle-politics/ >

[8] Abdul Halim, Constitution, Constitutional law and politics: Bangladesh perspective ( 2nd Edition, 2003)P. 25

[9] Pol. 1278b10-11. [10] Pol. 1278b11-14. [11] < https://www.scholardarity.com/?page_id=2564#_ftnref6 > [12] Lord Bryce [13] See, Zink, Harold, Modern Governments , 2nd ed, ( New York : D. Van Nostrand Company, 1983), P.18 [14] Stong, CF, Modern Political Constitution , (London : ELBS, 1970), P 11 [15] See (n) 2 UOL subject Guide, 2012, P 18. [16] See (n) 1 H Barnett (2009) P.14. [17] See (n) 2 UOL subject Guide, 2012, P 20. [18] Ibid. [19] For details see: Chowdhury, A.K,The Independence of East Bangla, (Dhaka, Jatiya Granthakendra,1984 ) P 270-274. [20] See (n) 7 MD. Abdul Halim (2003) P. 41-44. [21] See (n) 1 H Barnett (2009) P.14. [22] Diplock Lj In BBC v Johons (1965). [23] Dicey, AV, Introduction to the study of the law of the Constitution, 10th edn, (London : Macmillan1959). P 39 [24] For more elaborate categorisation, see Rees, “The theory of sovereignty restated”, ( Latett, 1975), Chapter IV. [25] See (n) 23 said by Priestly in 1771 , cited in Dicey ,1885,P 47 [26] See (n) 23 Dicey, 1885, P 47. [27] < https://www.legislation.gov.uk/aep/Ann/6/11 > [28] [1965] AC 75 [29] See (n) 1 H Barnett,(2009) P.159 [30] [1968] 1 All ER 779 [31] [1906] 14 SLT 227 [32] [1956] 40 Cr App R 152 [33] [1999] 3 All ER 400, [1999] UKHL 33 [34] [1932] 1KB 733 [35] [1934] 1 KB 590 [36] [1971] 1 WLR 1037 [37] [1935] A.C. 500 [38] [1982] 3 All ER 786,822 [39] Mitchell. JDB “Sovereignty of parliament –yet again” (1963) 79 LQR. [40] [1953]SC 396 [41] [1974] AC 763 [42] [1931] 44 CLR 395 [43] [1974] 2 WLR 208 [44] [2005] U.K.HL. 56 [45] [2002] EWHC 195 [46] [1963] EUECJ R-26/62 [47] [1970] E.C.R. 1125 [48] Factortame I [1991] 1 A.C. 603 Factortame II [1991] ECR 1-4586 Factortame III [1996] ECR 1-1034 Factortame IV [2000] EULR 40 R v S of S for Transport ex p Factortame Ltd (No 2) [1991] [49] [1978] ECR 629

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Trade Law Problem Question Answer

Section - 9 (Fair Trading Act of 1986) applies to a given truth circumstance. Act to preclude certain behavior and practices in exchange, to accommodate the revelation of customer data identifying with the supply of products and administrations and to push item wellbeing. Segment 13 - make a false or deceiving representation that merchandise are of a specific kind, standard, quality, grade, amount, creation, style, or show, or have had a specific history or specific past utilization; or Segment 27 False Consumer data the revelation of data identifying with the kind, grade, amount, source, execution, mind, structure, substance, outline, development, utilization, value, complete the process of, bundling, advancement, or supply of the products or administrations. According to the detailed analysis commercial utilized false representation to advertise their item by saying that guaranteeing that Hi-C held 4 times the vitamin C of oranges. The Commission figured out that this case is not genuine. In my perspective common cure in this situation could be that the deceiving organization ought to be fined of Nz$200,000 and asked to expel all their items from the business sector as they don't meet the standard and clients were not getting the thing for which they were paying for.

Criminal obligation for this situation could be alluded to as the deluding direct in connection to products as the organization had misleaded individuals in setting of their item, quality and aspects. Section 13 will be appropriate here as it is an instance of a false or misdirecting representation concerning the spot of wellspring of products or administrations. As keepsake supplier made a false or deluding representation that bundling of the items says it is made in New Zealand. However the assembling of the items was in China. Criminal obligation is the keepsake supplier organization and they need to repay $ 200,000. Section 19 will be applied in this case study as (Bait advertisement: unfair to the clients). Section 19 is applied here because hotel advertisement referred $79 for one night but it is not in reality and Fair Trade Act prohibits false and misleading representation. The advertisement claimed by them was also not true. In the given situation segment 13 ought to be relevant which says that false or deluding representation that merchandise are new or they are reconditioned, fabricated or reconditioned ought not be carried out if an individual or organization does that he/she needed to face results.

I pick this procurement for this situation as Brown the merchant had duped Alice by supplying him the fake of Genuine Chippendale suite, essentially tan had tricked Alice in light of the fact that tan guaranteed Alice that the suite he is giving is Genuine Chippendale suite yet that was an imitated one. In this Scenario as the individual is included in the case so the individual who had duped will need to pay the fine of Nz$60,000 as the Brown had sold the Reproduced Suite to Alice not the Original one or/and Brown may needed to give the cash for the suite over also. Criminal obligation could be that Brown might be asked to quit doing the business. Element 2 I think in the given situation three Provision might be connected that are Section 6 Guarantee as to worthy quality which implies products supplied to the purchaser ought to be of great quality and if there is any flaw they ought to be supplanted or cash ought to be discounted, Section 7 Meaning of satisfactory quality implies that the great supplied to the customer ought to be of adequate quality and it ought to free from minor absconds and Section 8 Guarantees as to wellness for specific reason which implies that supplier ought to take the assurance so that the merchandise he is supplying will be for the same reason what he told for or what the buyer requested.

Procurement picked by me apply in this situation as the new pool purchased by Jeff from Leisure endeavors was having numerous deserts as its channel gear was reconditioned and the water was gradually spilling out from the pool which accordingly had harmed Jeff's trampoline, besides in the commercial it was guaranteed by supplier Leisure undertakings that they will dole out free enclosure furniture with each pool bought. All the things guaranteed by the supplier was not supplied to the fulfillment level of the buyer as he requested the new pool yet was given a reconditioned one, which was spilling too. As per segment 18 customers have the Options against suppliers where products don't follow ensures which imply that customer can take activities if the merchandise supplied to him by the supplier are not up to the fulfillment level of the purchaser. Common solution for the situation might be that customer Jeff can ask the supplier to change the pool as he was being given the old one whose channel was reconditioned and which was spilling as well, Jeff can additionally approach supplier to pay for the harm which the spilling pool had caused to the trampoline.

Section 27 of the Commerce Act 1986 which applies to a given reality circumstance for the Contracts, plans, or seeing considerably decrease rivalry precluded.In this case the meat organizations made an assention not to contend with one another by method for uniform costs. As a result, they diminished the opposition. The organization need to pay the fine and must be shut as per the choice of the court & law. a) Section 29 will apply to the given reality circumstance for the barring contenders b) They cooperated and debilitated to blacklist the property guide. They have restricted contenders from entering into understandings that holds exclusionary procurements which limits rivals from obtaining or supplying merchandise or administrations. C) Yes I concur it right on the grounds that the case is clear and i have effectively examined all the procurement. D a) Section 27 and Section 30 will apply to the given fact situation. b) The bus company disclosed with another company as to the amount of their bid and agreed who should win in the bidding. This is a violation of the Commerce Act. Nobody can disclose the information act because it is unfair.

The High Court imposed penalties of $380,000 on the offending bus company and $10,000 on its Chief Executive. Yes i agree with the decision as they have breached the law. Section 36 will apply to the given fact situation. Section 36 prohibits a person or business with a substantial degree of market power in a market from taking advantage of their market power to prevent competition either in that market or in any other market. Section 27 this section provides a broad rule that states that no person shall enter into an agreement that contains a provision that substantially lessens competition in a market. The above provision will apply to the given fact situation because they are taking the advantage of the market power. The port company had used its dominant position to prevent a rival competing with its own pilot age service. A port company was ordered to pay penalties totaling $500,000 after the Court found that the company had breached both section 27 (substantially lessening competition) and section 36. It is fair because the position is very obvious. In my perspective Section 36 is pertinent for the given situation it states that Taking point of interest of business sector power which implies that if an individual or organization had the extensive measure of force in a business sector ought not attempt to exploit that power and attempt to stop or confine an individual or organization to enter in the business sector or taking out an individual from that or whatever available business sector.

I accept that procurements picked by me apply to the given certainty circumstance as the Building protection material organization ruled its position so that no one else can enter in the business as they embraced the '2-for-1' evaluating system for its products they were giving two parcels of protection to the cost of one. They received this method with the goal that no one can enter in the business sector as the majority of the customers will be approaching them as they were giving the protection to an extremely shoddy cost. In the event that I will be the judge of this case I may have done something exceptionally same as the commission knows the punishments and directive to be assumed the gravity or ground or base of the infringement of the law. As the choice of the judge is constantly made by taking a gander at both the finishes and after that characterizing who is at flaw and who is honest. Besides it is against law to receive such sort of approach which drives different contenders to leave the business or not to enter the business sector.

The above procurement will apply on the grounds that resale value support is restricted under Section 37 and 38 on the grounds that it limits or wipes out rivalry on cost. In the circumstances, deals agent had reveled or endeavored to actuate the bar not to offer packs for$ 15. The High Court constrained a punishment of $110,000 in addition to $5,000 costs on the distillery I think its correct and I backing the high court choice. Section 36 restricts an individual or business with a generous level of business sector control in a business sector from taking playing point of their business sector force to avoid rivalry either in that market or in any possible business. Furthermore area 37 is connected for this situation Resale Price Maintenance: Resale value support is precluded under Section 37 and 38 in light of the fact that it confines or wipes out rivalry on cost. b) Because he undermined to bar a retailer from free cloth advancement if marking down proceeded. c) Yes I concur with the choice .Because he can't put weight on anyone.

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The Rule of Law

Contents

The Rule of Law Institute’s Principles , rule f law institute of Australia <https://www.ruleoflaw.org.au/principles/>

RULE OF LAW The rule of law is defined as ‘the principle that all people and institutions are subject to and accountable to law that is fairly applied and enforced; the principle of government by law.’[1] This is the principle that individuals and government can only act with publicly known law accordingly and those law must be enforced and adopted I a good manner and also consistent with the well established conventions, procedures and traditions. In the Australian Constitution, the rule of law was a foundational principle for the preparation of the Constitution. The concept of ‘rule of law’ was very similar and familiar to the theory of an ancient historical Greek philosopher ‘Aristotle’ who wrote the ‘Law should govern’.[2] The rule of law is ‘the authority and influence of law in society, esp. when viewed as a constraint on individual and institutional behavior; (hence) the principle whereby all members of a society (including that in government) are considered equally subject to publicly disclosed legal codes and processes.’[3] The modern concept of rule of law is given by the British jurist and constitutional theorist ‘Albert Venn"A. V."Dicey’.[4] AV Dicey’s famous conception of the rule of law.The rule of law in general, is seen as encompassing these three features:

the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even wide discretionary authority on the part of the government …

equality before the law, or the equal subjection of all classes to the ordinary law of the land by the ordinary Law Courts; the ‘rule of law’ in this sense excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens or others from the duty of obedience to the law which governs other citizens or from the jurisdiction of ordinary tribunals …

as a formula for expressing the fact that with us the law of the constitution … are not the source but the consequence of the rights and individuals, as defined and enforced by the Courts … thus the constitution is the result of the ordinary law of the land.[5]

In short, the three elements are:

Supremacy of law;
Equality before the law; and
Government by law.

The rule of law is the basic and fundamental concept of justice, implementation of law and interpretation of law. Without rule of law, it is not possible to provide fair justice and equitable treatment in legal system. The rule of law is the authoritative, superior placement of established law. The rule of law entails the promotion of certain concepts and freedoms, to prevent abusive use of power. The rule of law contains numerous elements. The elements state that all laws must be written, feasible, and as clear as possible and must not be contradictory. The laws can have no effect until they have been passed and are thus official and laws must be constant through time, but must allow for revision. The rule of law differs in the specifics, but the aforementioned is what is consistent with all the definitions. The elements need to be balanced appropriately, or unfairness will result. The rule of law in relation to Australia was developed by the Waterloo Creek Massacre in conjunction with the subsequent events; a defined sense of morality was established. ‘Ignorance of law does not excuse’ is the strongest point to established and enforced of rule of law. Some authorities which helped to develop the concept of the rule of law as the mistreatment of law coupled with ignorance, and basic human rights were being gradually recognized and improved. For example, in the cases of R v Kilmeister (No 1)[6] and R v Kilmeister (No 2)[7], the Attorney-General repeatedly stressed the nature of murder and how in this matter ignorantia juris non excusat (ignorance of the law does not excuse). Tempting as it can be to justify such acts, it is still against the law to commit them. Basic principles of Rule of Law: There are four basic principle of rule of law.

Government and its officials are accountable under the law.

Laws are clear, just, publicized, stable and protect fundamental rights.

The process of law is efficient, fair, just and accessible for everyone.

Justice is given and delivered timely by ethical, independent and competent authorities or representatives of law governed bodies.

The judiciary should be independent.

Essentials of Rule of Law

There are some main factors and essentials of rule of law which are mention and describe below

The society must governed by rule of law and officials of government are accountable under the law.

There must be absence of corruptions.

There must be a open government which involves engagement, access, participation involvement and collaboration between government and its citizen.

Security must provide to all citizen. Security includes personal security as well as security of their property.

Every person should be able to easy access to courts for resolve their grievances and obtain remedy in a peaceful and effective manner

Main characteristics of the Rule of law

Universality of the scope of the law

The first principle of the rule of law is that all citizens come within the scope of the law, no matter what their emiAnence or authority. Those who make and enforce the law are therefore bound by it. Albert Venn Dicey set out one the best known statements of this principle in 1895: “... every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justificaAtion as any other citizen…. [Appointed government offiAcials and politicians, alike] ... and all subordinates, though carrying out the commands of their official superiors, are as responsible for any act which the law does not authorise as is any private and unofficial perAson.” [8] Martin Krygier, international authority on the rule of law, argues that there is a political and social dimension to the principle. The political element is that governments and public officials must comply with the existing law while it is in force. Furthermore, there must be effective ways of forcing governments and officials to submit to the law. If these conditions are not met then a crucial aspect of the rule of law is missing.[9] The social dimension is equality for all citizens before the law. Traditionally this has been assumed to mean that the law should apply to all regardless of inequalities of wealth or status.[10]

Clarity for all citizens

A second principle is that the law should be expressed in such a way that people can be guided by it. To achieve this goal a number of conditions must be met. The laws must be clear and understandable. The body of law cannot be contradictory. Laws should apply to future action (be proAspective) rather than apply to actions which have already occurred (be retrospective). Unless this is so, people will be unaware of their legal position and will be in constant fear of unknowingly breaking some future law. The body of law should be relatively stable because if laws are being conAstantly changed, people will not trust them. Laws must be taken seriously and enforced.

Supportive institutional arrangements and legal culture

There need to be appropriate institutions to support the rule of law. These institutional arrangements are too varAied and rich to be based on one model only. Nevertheless there are four central ideas supporting the principles of the rule of law that have been widely adopted. The first is that those who decide whether specific actions are legal or illeAgal should not be the same as those who have the power of decision-making in governments. Second, courts should not only be independent, but also protected from interferAence. Third, traditions and conventions matter to ensure that legal decisions are based on reasonable interpretaAtions of existing laws. Finally, there need to be measures to ensure that those who appear in the courts are given a fair hearing. There needs to be a culture of law that is widely valued and shared among lawyers. There also needs to be broad agreement within the society that laws really matter. In many English-speaking cultures there is also a rich tradition of common law, the body of law built up over long periods of time through the constant refinement of legal precedents by outstanding legal minds. Common law is not a necessary condition of the rule of law. It is, nonetheAless, an example of the importance of legal culture Importance of the rule of law. Why it is important? There is no perfect application of the rule of law. All the subversions of the principles of the rule of law described above can occur. The abuses are, however, much less likely to happen when a rule of law culture is strong. When considering the significance of the rule of law, Martin KryAgier argues that we need to ask three key questions. The first is: “What we are trying to achieve?” This quesAtion, he says, is best answered by contrasting the rule of law with its alternative, the arbitrary exercise of power. This is the evil that the rule of law is trying to curb. The second question is: What are the main reasons for wishing to curb the arbitrary exercise of power? One widely agreed reason is to prevent or reduce the fear of harm and oppression. We rely upon the law to protect us from harm from other individuals or groups in our society. To do this effectively there have to be widely accepted rules of behaviour and sanctions for those who fail to observe those rules. We also need protection from the arbitrary actions of the state itself. This is best achieved by requiring governments to operate under laws that conform to the character of the rule of law. The third question is: How do we best encourage beneficial interactions among citizens? There is need for ‘legitimate expectations’ between citizens without which their relaAtionships will be uncertain and at times dangerous. PreAdictability is one need and security another. Clarity about the rules affecting relationships between citizens is a third. In this way citizens are made aware of their rights and responsibilities vis-A -vis each other.[11] [12] Criticism on Rule of Law: There is most strong one criticism on rule of law is that, which it is fail to deal with the supremacy of the law making body which is Parliament. If the parliament make a law which is in a way of it or which create contradiction to the rule of law. But it is still the law and there is nothing that the courts can do about it. Conclusion: In my point of view, the rule of have over the course of Australian history together formed our concept of justice. Overall, the rule of law is considered to be one of the fundamental doctrines of the constitution of the Australia. Constitutions are concerned with the allocation of power and the control of its exercise. “Government of laws and not of men” this was said by Aristotle way back in Ancient Greece. Without the doctrine of ‘the rule of law’ our government would be undemocratic and would be deemed ‘the rule of men’ in which certain members were exempt from the law and would not be equitable. In my conclusion, the rule of law refers to two elements. First, government powers should be checked and secondly law and order should maintain all the time. In other words, all power and action of the government must be legal and authorized by the law and action of the government must within the prescribed legal area. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - -

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Bibliography Internet: ‘Rule Of Law’ The Free Dictionary, https://legal-dictionary.thefreedictionary.com ‘Rule Of Law’ WikiPedia, https://wikipedia.com ‘Legal Obligation and Authority’, Stamford Encyclopedia of Philosophy, Stamford Encyclopedia of Authority, <https://plato.stanford.edu/entries/legal-obligation ‘Rule of law’ Law council of Australia <https://www.lawcouncil.asn.au/lawcouncil/index.php/divisions/international-division/rule-of-law>

The Rule of Law Institute’s Principles , rule f law institute of Australia <https://www.ruleoflaw.org.au/principles/>

‘What is rule of law?’ world justice project < https://worldjusticeproject.org/what-rule-law>

‘Rule of Law’ https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1328&context=bjil Cooray, M. The Australian Achievement: From Bondage to Freedom, https://www.ourcivilisation.com/cooray/btof/index18.htm A discussion of principles of the rule of law in an AustralAian liberal context. Li, B. (2000). “What is Rule of law?” Perspectives, vol. 1(5),https://www.oycf.org/Perspectives2/5_043000/what_is_rule_of_law.htmA discussion of the meaning and the ideals of law. United Nations and the Rule of Law https://www.un.org/en/ruleoflaw/index.shtmlA description of the United Nations’ commitment to the principle of the rule of law. Books & Articles: R Fitzgerald and M Hearn, Bligh, Macarthur and the Rum Rebellion, Kangaroo Press, Kenthurst, 1988. R Hughes, The Fatal Shore, Harvil Press, London, 1987. Australian Law Dictionary (Oxford University Press, 2nd ed, 2013). D C Pearce and R S Geddes, Statutory Interpretation In Australia, (LexisNexis Butterworths, 7th ed, 2011). Michelle Sanson et al, Connecting With Law (Oxford University Press, 2nd ed, 2013). Adjami, Mirna, “African Courts, International Law, and Comparative Case-Law: Chimera or Emerging Human Rights Jurisprudence.” Michigan Journal of International Law 164(24) (2002): 103-167. Banik, Dan, “Legal Empowerment as a Conceptual and Operation Tool in Poverty Eradication.” Hague Journal on Rule of Law 1 (2009): 117-131. Bergling, Per. Rule of Law on the International Agenda: International Support to Legal and Judicial Reform in International Administration, Transition and Development Co-operation. Intersentia, 2006. Bodanksy, Daniel, “The Legitimacy of International Governance: A Coming Challenge for International Environmental Law?” American Society of International Law 93(3) (1999): 596-624. DvDs: ‘Rule of Law’, MicrosoftA® Encarta PremiumA®, 2009. Microsoft Corporation, 2009.

[1] https://dictionary.reference.com/browse/rule+of+law [2] ‘Politics’ by Aristotle, translated by William Ellis, Chapter 3 [3] TheOxford English Dictionary [4] Wormuth, Francis.The Origins of Modern Constitutionalism, page 28 (1949) [5] Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (Macmillan and Co, 8th ed, 1926) 198–9. [6] NSW SC, 15 November 1838. [7] NSW SC, 26 November 1838. [8] (Albert Venn Dicey, Law of the Constitution, LonAdon: MacMillan, 9th ed., 1950, p.194). [9] Clarence Ling, ‘Martin Krygier’s contribution to the rule of law’ vol.4 the Western Australian Jurist 211 [10] Ibid. [11] Martin Krygier, ‘Marxism, Communism, and Narcissism’ (1990) 15 Law and Social Enquiry 709, 730 [12] Martin Krygier, ‘Ethical Positivism and the Liberalism of Fear’ in Tom Campbell and Jeffrey Goldsworthy (ed), Judicial Power, Democracy and Legal Positivism (Dartmouth, 1999) 59, 64.

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The Romalpa Case: Signpost or Diversion?

The Romalpa Case: Signpost or Diversion? The supply of goods on credit is a commercial commonplace. Foreseeable difficulties will however arise where the buyer withholds payment or, more seriously, is unable to make payment due to solvency difficulties. The difficulty when a company is forced into liquidation or an individual into bankruptcy was summarised by Templeman LJ[1]: “…unsecured creditors rank after preferential creditors, mortgagees and the holders of floating charges and they receive a raw deal.” It is therefore prudent for sellers to insert into the terms of their contract a retention of title clause whereby ownership of the goods remains vested in the seller until payment. This apparently uncontroversial proposition was lent a unique twist in Aluminium Industrie Vaassen BV v Romalpa Aluminium Ltd[2] in which the Court of Appeal was required to consider a situation in which goods were supplied and used or resold prior to payment. In Romalpa a Dutch Company supplied a quantities of aluminium foil to and English company pursuant to a contract which provided that the foil would remain the property of the former until all debts payable by the latter were discharged. The contract expressly provided for the assignment of rights to payment in the situation in which products were manufactured from the foil and sold but did not expressly deal with the situation in which the foil itself was simply sold on. When this occurred and the English company went into liquidation, the seller of the foil attempted to recover monies paid in respect of the foil to the Receiver. It was held that the parties must have intended there to be a right to sell on the foil and that a fiduciary relationship was thereby created as a result of which the Dutch company was entitled to the proceeds of sale. Therefore the use of reservations allowing the seller to recover the proceeds of sale of goods or the value of products manufactured from them became widespread and known eponymously as “Romalpa Clauses”. Criticism of such contractual devices has been advanced by commentators such as Bradgate[3]: “The widespread use of retention of title clauses has potentially serious consequences for secured creditors: a successful claim under a retention of title clause allows the supplier to reclaim the goods, their proceeds or product, and the pool of assets available to meet the claims of other creditors is thereby diminished.” However, of greater concern to suppliers and their banks is the fact that Romalpa appears not to have been regarded by the Court of Appeal as a particularly significant decision (leave to appeal to the House of Lords was refused) and subsequent cases have been left to turn on their particular facts. Thus in Re Bond Worth Ltd[4], it was held by Slade J that the reservation of title clause gave rise to a charge rather than retention of tile in the goods. However, in Clough Mill Ltd v Geoffrey Martin[5] a consideration of the particular clause used led the Court of Appeal to the conclusion that the contract prevented property from passing so there was nothing to charge. Further difficulties arise as a result of the nature of the manufacturing process. Where the character of the goods has been altered (see, for example, Model Board Limited v Outerbox Ltd[6] where cardboard was printed upon and made up into boxes) and Borden (UK) Ltd v Scottish Timber Products Ltd [7]in which resin was used in the manufacture of chipboard). In such instances the courts appear to have been defeated by the difficulty of quantifying the nature and extent of the original seller’s interest in the new product. A solution to this might be to allow the validity of express provisions rendering the new product the property of the original supplier until payment. However, since the value of the new product will undoubtedly exceed the value of the supplied raw materials which contributed only in part to its manufacture, retention of title in the whole of the new goods would be inequitable if not unworkable in any event. Thus the current state of the law is unsatisfactory for two principal reasons: despite the apparently authoritative status of the decision which has since 1976 lent its name to retention of title clauses, Romalpa failed to supply a formula upon which suppliers could rely with confidence in order to protect their interests; as a result, cases continue to turn upon their individual facts leading Staughton J in Hendy Lennox Ltd v Graham Puttick Engines Ltd[8] to describe this area of law as “a maze if not a minefield”. It might be supposed that this state of affairs could be remedied by legislation providing precisely for the rights of sellers who purport to protect themselves in this way. However, whether the solution thus opted for provided security by way of a charge or some comparable remedy or reinforced the concept of wholesale retention of title in goods, the difficulties of quantification and providing a remedy which was equitable to both seller and purchaser would remain in all but the most straightforward of cases. It is submitted that the answer lies in the a mechanism for the registration of interests as suggested by both the English[9] and indeed the Irish[10] Law Commissions. A system of registration of interests would allow transparency (particularly for the benefit of creditors) as to the priorities which would apply in the event of insolvency. Thus retention of title clauses could be registered at Companies’ House or a similar institution. Any clause not so registered would be void in the event of the winding-up or bankruptcy of the buyer but where there was valid registration, the interest would take priority over interests in the goods created subsequently to the date of registration. Such a reform would assist both sellers and their banks by providing a clear and readily enforceable means of recovering the value of property sold on condition that title does not pass until payment. Bibliography Bradgate, R., Commercial Law, (3rd Ed. 2003) Oughton, D. & Lowry, J., Textbook on Consumer Law, (2nd Ed., 2000) Treitel, G., The Law of Contract, (11th Ed., 2003) Law Commission, Consultation Paper No.164, Registration of Security Interests: Company Charges and Property Other than Land, (July 2002) Law Reform Commission (Ireland), Report LRC 28 of 1989, Report on Debt Collection: (2) Retention of Title Westlaw

Footnotes

[1] Borden (UK) Ltd v Scottish Timber Products [1981] Ch 25 [2] [1976] 1 WLR 676 [3] Bradgate, R., Commercial Law, (3rd Ed. 2003), pp.450-1 [4] [1980] Ch 228 [5] [1984] 1 All ER 721 [6] [1993] BCLC [7] [1981] Ch 25 [8] [1984] 1 WLR 485 [9] Consultation Paper No.164, Registration of Security Interests: Company Charges and Property Other than Land, (July 2002) [10] Report LRC 28 of 1989, Report on Debt Collection: (2) Retention of Title

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The Right of Self-Determination

RIGHT OF SELF DETERMINATION INTRODUCTION Self-determination can be defined as a right of peoples or the will of the people under international law to exist and to have access to government. This principle has at its spirit in the achievement of true representation and democracy based on the premise that the consent of the people can only give legitimacy to any government. The principle helped in shaping of our international community as it was mainly responsible for the decolonization process. Hence, this right is one of the most important, but yet it is debatable principles of international law. This right has served as a powerful slogan and a justification for the purpose of independence of many peoples. This right has primarily created controversy because it many a times challenged the State system through a derogation of the principle of territorial integrity, which results in tension between the interests of the States on one hand and the interests of the peoples on other. This coalition between the two has led to the creation of a principle as multifaceted as well as ambiguous. The right to self-determination complement fundamental principles of public international law like State sovereignty, the equality of States and territorial integrity, including the prohibition of force and the principle of non-intervention. With the aid of self-determination, indigenous groups raise claims of either secession from an already sovereign State or seek independence and freedom from the domination of foreign State. This right does not only exist under public international law but has its presence under international human rights law also, where it says, among other things, the equal rights of peoples within a State. Moreover, the right to self-determination is used as an argument in miscellaneous situations under international law wherein questions relating to liberation movements, rebels, aid and assistance or intervention against these groups and movements. Therefore, it can be said that there are many situations in the world where the right to self-determination has a great relevance. The interests of both the individual and the group concentrate on the ability to exercise their selections about how they wish to live their lives and to be free from the interference and imposition of others[2]. There are at least five different modes of right to self-determination:

an individual right, potentially coextensive with some form of democratic governance;
a right pertaining to members of groups and perhaps groups themselves, often framed as the minority rights of national, religious, ethnic or linguistic groups;
a right with particular meaning in the context of indigenous groups, potentially extending to unique forms of political and territorial autonomy;
a right associated with limited territorial change, often associated with historical agreements (such as the handover of Hong Kong); and
a right to external determination of peoples, which implies a right to unilateral secession.

The scope and purpose of the principle of self-determination has evolved significantly in the 20th century. In the early 1900’s, international support grew for the right of all people to self-determination. This led to successful secession movements during and after World War I, II and then laid to the groundwork for decolonization in the 1960s. THE SCOPE OF THE PRINCIPLE OF SELF-DETERMINATION OF PEOPLES The meaning of the term “peoples” means who are the holders of the rights of self-determination and has a primary effect on the establishment of the synchronization between the principle of self-determination and territorial integrity. Principle of self- determination has its universal realization[3] and subsequently, obligations arising from this principle are erga omnes obligations.[4] Since erga omnes obligations are attatch to the right of self determination, therefore, it implies that this principle applies to the whole international community. All states have a right to demand for self determination, if in case people are depriving of the right to self determination, as per internationally recognized interpretation of self- determination. Though, there is no recognized definition to any of terms, which could be admitted under the meaning of “peoples” (for example, nation, minority, indigenous peoples and etc.), and for the term “peoples” itself under international law[5]. As a fundamental human right, right to self-determination cannot be the right only of some special categories of peoples asit would lead to discrimination on the racial, ethnic, cultural, religious or other grounds, for which that particular group identifies themselves among others. According to the report of the international conference organized by the UNESCO Division of Human Rights, Democracy and Peace, the plain meaning of the term “all peoples” includes peoples under colonial or alien subjugation or domination, those under occupation, indigenous peoples[6] and other communities who satisfy the criteria generally accepted for determining the existence of a people[7]. The only way to prevent discrimination between different groups of peoples is to define “a people” as a whole population of a particular territorial unit, for the purpose of interpreting the principle of self- discrimination under the present international law “a people” means: a) entire population of an independent state, governed in a way representing the whole population; b) entire population of non-self-governing territory; c) entire population of a particular occupied territorial unit living under foreign military occupation; d) entire unrepresented/ oppressed part of population of a particular territorial unit . This interpretation shows the primary connection between peoples and territory. THE CONTEMPORARY CONCEPT OF SELF DETERMINATION There are three important elements which helps in fulfilling the contemporary concept of principle of self-determination. These elements are as follows;

The principle of uti possidetis,
the conceptual distinction which exists between external (classical/post-colonial) and internal aspects of self-determination, and
the secession in the view of international law regulating self-determination.

There have been various decisions as accepted by various courts that emphasized on the importance of principle of uti possidetis, such as the Canadian Supreme Court’s (CSC) decision on Quebec decision and ICJ’s decision in the Burkina-Faso v. Mali case[8]. The Canadian Supreme Court noted that, the right of self-determination should be exercised “within the framework of existing sovereign states” and emphasized “the maintenance of the territorial integrity of those states”[9]. Furthermore, ICJ described the principle of uti possidetis as “a general principle, which is logically connected with the phenomenon of obtaining independence, wherever it occurs”[10]. Apart from the above discussions before the courts, the Committee on the Elimination of Racial Discrimination ie., CERD passed a recommendation in 1996 which distinguished the internal self-determination from the external self- determination. As per CERD internal self-determination means “right of every citizen to take part in the conduct of public affairs at any level”.[11] The definition of the CSC regarding internal self-determination, which is acknowledged by the Court as a concept fulfilling the external self-determination, is as follows: “a people’s pursuit of its political, economic, social and cultural development within the framework of an existing state”[12]. Tibet. The Tibet case represents a post-Charter annexation reason being China seized independent Tibet in 1949 -1950. The early documents of the United Nations indicate that the right to self-determination of the Tibetan people, and the international community had to recognize China's the post-Charter military seizure as illegal. Till now, the situation in Tibet is not resolved and the Tibetan people still have the right to self-determination, and also have the right to their own governance and culture. But, China is sending large numbers of non-Tibetan people in Tibet. This is a violation of Article 49 of the Fourth Geneva Convention. This is where the government of China has done the most damage to Tibetans and their culture, as in many parts of Tibet, Tibetans are in the minority, which has becomes a serious situation in the realization of self determination. China seeks to dilute Tibetans with others, so that if forced into any de-colonization process the Tibetan question might be viewed as an indigenous question rather than one involving full restoration of sovereignty. CONCLUSION In the above-outlines situations, it can be understood that people have the right to self-determination but yet it has not been realized. In many countries there are conflicts related to it. Unfortunately, many states involved in attempting to militarily eliminate the peoples with valid self-determination claims try to reduce these conflicts to "terrorism". So depending on which side of the fence you are on, group A is either a terrorist or a freedom fighter. Some of these regimes' friends either acquiesce or actively support this erroneous assertion. Apart from this, the important concern is that states are openly violating their jus cogens and erga omnes obligations, so as to defend the principle of self- determination. And also, not enough people know sufficiently both the law of self-determination and the law of armed conflict to properly redirect. This right can, be immensely powerful as a political slogan, for example when used by a people seeking their freedom and independence as it was done during time decolonization process. But it can also be dangerous when used to stir up feelings of extreme nationalism in people. As what led to the genocide in Rwanda was a complex situation that dates back to the colonial period. Surely, democracy must be the remedy here and not redefining the term “people” or the principle of territorial integrity. In any case, this dilemma does not seem to have a solution for the moment, nor in the foreseeable future as one author admits. In my opinion there is clearly a need for the double nature of the right to self-determination in international law and relations. It is therefore difficult, bordering on impossible, to reach an agreement on a more precise definition of the right, its content and scope.

[1] Student, Institute of Law, Nirma University [2] Thomas Franck, The Emerging Right to Democratic Governance, 86 AM. J. INT'L L. 46 (1992). [3] See, for example, the UN General Assembly Resolution 51/84 (adopted 28 02 1997), which reaffirms “universal realization of the right of peoples to self-determination”. [4] The International Court of Justice has affirmed erga omnes in the East Timor Case; the newest: Advisory opinion of the ICJ on “Legal consequences of the construction of a wall in the occupied Palestinian territory” (09 07 2004, No.131). [5] The UNESCO International Meeting of Experts for the Elucidation of the Concepts of Rights of Peoples (held in 1989) developed the definition of “a people” as “a group of individual human beings who enjoy some or all of the following common features: a) a common historical tradition; b) racial or ethnic identity; c) cultural homogeneity; d) linguistic unity; e) religious or ideological affinity; f) territorial connection; g) common economic life” . [6] A term “indigenous peoples” is “just a technical term, which allows a number of peoples to participate, albeit in a limited way, in international discussions affecting their situation”(see note 1:The implementation of the right to self-determination as a contribution to conflict prevention). [7] Ibid [8] Frontier Dispute (Burk. Faco v. Mali), 1986 I.C.J. 3 (Order of Jan. 10) [9] Ibid., p. 231 [10] Warbrick, p. 215. [11] Shaw, p. 273. [12] Shaw, p. 273.

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The Operation Of, and Justifications For, the Postal Rule

TABLE OF CONTANTS

NO.	CONTENTS	PAGES
1	INTRODUCTION	2
2	DEFINITION	2
3	QUESTION: What reasons have been given by the courts for the postal acceptance rule? and in what circumstances will the postal acceptance rules not operate?	3
4	RELEVENT CASE	6
5	CONCLUSION	7
6	REFERANCES	8

INTRODUCTION An acceptance agreement strengthens a time draft by putting the acceptor under contractual obligation to pay. International trade is facilitated by banks enacting banker’s acceptances, thereby guaranteeing the payment for goods. Postal rule is a rule of contrac law which makes an exception to the general rule citing that an acceptance is only created when communicated directly to the offeror.

An acceptance is binding and the contract is only said to be perfected when the acceptor places acceptance in the mail box for a return mail, even if it never reaches the offeror. The posting rule is an exception to the general rule of contract law in common law countries that acceptance takes place when communicated. The posting regulation states, by contrast, that acceptance takes effect when a letter is posted. One justification given for the rule is that the offer or nominates the post officeas implied agent and thus receipt of the acceptance by the post office is regarded as that of the offer0ee. However, if the offeree sends a rejection and then sends an acceptance whichever communication is received by the offeror first controls.

DEFINITION OF ACCEPTENCE A contractual agreement on a time draft or sight draft to pay the amount due at a specified date. The party who is expected to pay the draft writes “accepted”, or similar wording indicating acceptance, next to his or her signature along with the date.

This person then becomes the acceptor, and is obligated to make the payment by the maturity date. A banker’s acceptance is a time draft honored by a bank, and is typically used in international trade. A trade acceptance is a time draft drawn by the seller of goods on a buyer. In a trade acceptance, the buyer is the acceptor.

The postalruleis a concept of contract law that is commonly referred to as the mailbox rule. It was formed at a time when contracting parties did much of their bargaining from a distance. Bargaining at a distance, typically through the mail, created a problem, because the parties could not know at the same time whether they had formed acontract. As a result, a generalruledictating the time of an effective acceptance was necessary. Thus, thepostalrulewas created and stands for the proposition that acceptance is effective on dispatch .

Thepostalruleis an exception to the generalrule, which dictates that acceptance is effective on receipt. The rational behind thepostalruleis that it encourages contracting by parties at a distance by making the person in the position of giving an acceptance just as secure as if thecontractwas being made face to face. From a policy standpoint, it also fosters the creation of contracts at the earliest possible moment QUESTION: What reasons have been given by the courts for the postal acceptance rule? and in what circumstances will the postal acceptance rules not operate? Since the inception of the postal acceptance rule in 1818, numerous alternative methods of communication have been developed, including the telephone, telex, telegraph, facsimile and e-mail. This article examines whether the postal acceptance rule will be applied to acceptances communicated by e-mail.

In resolving this issue the authors consider how an e-mail is transmitted, the ambit of the postal acceptance rule and its underlying policy considerations and how the Courts have resolved this issue in relation to other modern forms of communication. It is well established that the general rule governing the acceptance of an offer is that acceptance is not effective until it is communicated to the offeror.1 However, an equally well established exception to this general proposition is the postal acceptance rule. Although the postal acceptance rule is deeply entrenched within our legal system, the scope of the rule and its applicability to modern forms of communication are issues which have not been conclusively determined by the courts. Since the initial formulation of the postal acceptance rule, communication technology has dramatically changed. As each new method of communication has emerged, the courts have been compelled to determine the applicability of the postal acceptance rule.

The development of e-mail means that this issue has once again arisen for consideration. Due to the increase in the use of e-mail as a tool of commerce, it is essential that this issue be resolved to enable contracting parties to utilize this new technology with a degree of certainty Acceptance is not effective as a general rule unless communicated to the offeror.

However the postal acceptance rule is one important exception. The postal rule was first used inAdams v Linsellto mean that acceptance takes place once a letter of acceptance is posted by the offeree. The defendant’s argument was that once they did not hear from the plaintiffs they were not in consensus and therefore proceeded to sellthe wool. A number of cases proceeded along these linesDunlop v Higginsas well as HouseholdCarriage vFire Insuranceeven though the offeror sufferedhardshipas a result of the letters of acceptance being delayed orgetting lostin the post.

The postal acceptance rule flies against the requirement in the law of contract that acceptance has to be communicated. More importantly it weakens the doctrine of consensus at idem (meeting of minds) for a contract to take place as well as the mirror theory that there must be a definite offer mirrored by a definite acceptance. Hardship is placed on the offeror but not on the offeree. Also various complications can occur because of this exception tothe generalrule that acceptance is not effective as a general rule unless communicated to the offeror. There have been several justifications according to Simon Gardner in his article “Trashing with Trollope” for this rule none of which have been satisfactory.

The first one was that thepost officewas the agent of the offeror and so receipt of the letter by the agent is equivalent to receipt by the offeror. This is unacceptable as the post office is merely the conduit by which letters pass through. The post office cannot contract on behalf of the offeror. The second justification is that the offeror has chosen to start negotiations through the post and so the risk of delay or loss in the post should be on him.

However this precludes situations where negotiations initiated by the offeror did not involve letters. The third justification is that it leads to businessefficiency and and enables the offeree to act on a binding contract the moment the acceptance letter is posted. This justification is advantageous to the offeree but not to the offeror. With such tenuous arguments it is was no wonder that the postal rule was circumscribed.Henthorn v Fraserdecided that the postal rule would only apply if it was within the contemplation of the parties to use the post or in the case ofByrne v Van Tienhovenwhich began to confine the postal rule within narrow limits. This particular case made the law even more confusing as there were now separate rules for the postal rule with regard to offers and revocation of offers.

The justification was that making acceptance complete at posting rather than delivery minimizes the window within which such a revocation may take place. Conversely making the offeror’s revocation ineffective until communicated prolongs the window during which an offeree may accept.

The cumulative effect made it additionally onerous on the offeror. The development of faster rules of communication at the time could have something to do with these particularly important developments. A situation could arise where the offeree who changes her mind: for example if after posting a letter of acceptance, she informs the offeror by telephone, before the letter arrives, that she rejects the offer. In the absence of English cases the Scottish case ofDunmore v Alexanderis quoted where it was decided that because of the additional cost of using speedier communication was used, the effect would be that there would be an effective revocation and that the original acceptance will cease to be effective.

More confusion would follow with the decision in the case ofEntores v Miles Far East Corpwhere it was held that the postal rule did not apply to telexes and that it was confined to non instantaneous forms of communication. The same approach was taken with regard to faxes inBrinkibon v Stahag Stahl. The widest exception to the postal rule was recognised inHolwell Securities v Hugheswhere it was suggested that the postal rule ought not to apply where it would lead to manifest inconvenience and absurdity. With more instant forms of communication such as e-mail, correspondence by post is becoming an exception rather than the rule. It is important that the postal rule be confined to the museum and that the rules of acceptance be applied regardless of the mode of communication.

Differences in application of the rule for other more instant means of communication would make it difficult to apply uniformity to the rules of offer and acceptance. It would seem that even with more modern technologies there is still proof of posting does not guarantee that there has been acceptance. Just because the message transmission ok on a fax machine or message sent in an email box does not necessarily mean that the receiver has received it. It would seem that in any form of communication proof of posting is not proof of receipt and that parties must ensure that there acceptance is communicated regardless.

Where post is the requested form of communication between parties or where it is an appropriate and accepted means of communication between parties, acceptance is complete as soon as the letter is posted. Even if the letter was mislaid or lost and does not reach the offeror. It is a requirement that the letter of acceptance has been properly posted London andNorthern Bank(1900). It is found telegrams also fall under the postal rule. An issue that rises from the Postal rule is that there is a period of time, where person(s) are in the dark as to whether a contract is in existence or not.

Courts have decided that the offeror assumes all the risk, as the offer is still open during the time the letter of acceptance is in the post Adams v Lindsell(1818). The decision was based on the fact that an acceptance of an offer could go on ad infinitum, back and forth between the parties.

If one had to acknowledge the receipt and then the acknowledgment had to be acknowledged so on and so forth. Unless the offeror has clearly stated in the terms of the offer that acceptance must be communicated by other means the offer must be accepted through the terms of the postal rule. Such a situation arose in the case Holwell securities Ltd v Hughes (1974), where the in the terms of the offer it was clearly indicated acceptance had to be by “notice in writing”. The letter of acceptance was lost in the post; therefore Hughes did not receive a valid acceptance as he had not received a “notice in writing”.

There are further cases highlighting the method of communication in relation to acceptance. Where a method of communication is stipulated by the offeror. Clear wording is required if the method of communication is to be mandatory. In Yates Building Co v RJ Pulleyn (1975) the acceptance was to be sent by “registered or recordeddelivery post”. The plaintiff sent his acceptance by through the standardpost service.

The defendant refused to accept the bid as it was not sent to them by the methods as they had outlined in the offer. The courts found that there was a binding contract in place with the receipt of the acceptance by letter. This ruling was appealed and the court further outlined the findings by stating the offeror did not state that the only method of acceptance as outlined would be binding. Another area the postal rule was rigorously tested was where the original offer was withdrawn or revoked.

When does the revocation come into effect under the postal rule? Under the postal rule, the letter of acceptance is relevant on posting. Letters communicating revocation come into effect only when the letter revoking the offer is delivered. Key case dealing with revocation under the postal rule is Byrne v Van Tienhoven (1880). The judges ruled in this case in favour of the plaintiff. The judges ruled it was proven by the plaintiff they had accepted the original offer by posting a response to the defendant.

The letter of revocation was received after their letter of acceptance had been posted by the plaintiff. RELEVENT CASE LAW: ADAM VS LINDSELL: The case ofAdams v Lindsell (1818) 1 B & Ald 681is taught to university law students when studying offer and acceptance.

It is often thought by students to have set a rather strange precedent. However, this is because modern students are viewing Adams v Lindsell in a modern context, rather than the somewhat different context of previous times. This piece will explain the facts which occurred in Adams v Lindsell and what the court decided. It will then go on to describe when the rule in Adams v Lindsell will be applicable.

The facts of Adams v Lindsell are that: the defendants wrote to the plaintiffs on 2 September, offering to sell them some wool and requested that the plaintiffs reply ‘in course of post’. The letter which contained the offer was wrongly addressed and therefore the plaintiffs did not receive it until 5 September. As a result of this delay, the letter of acceptance was not received until 9 September by the defendants, and this was two days later than the defendants would have expected to receive it. Because of this, on 8 September the defendants had sold the wool to a third person. The question for the court in Adams v Lindsell was therefore whether a contract of sale had been entered into before 8 September when the wool was sold to the third party.

If the acceptance was effective when it arrived at the address or when the defendant saw it, then no contract would have been made and the sale to the third party would amount to revocation of the offer. However, the court held that the offer had been accepted as soon as the letter had been posted. Thus, in Adams v Lindsell there was indeed a contract in existence before the sale of the wool to the third party, even though the letter had not actually been received by the defendant. The defendant was therefore liable in breach of contrack The ‘postal rule’ inAdams v Lindsellhas since been confirmed in Household Fire and CarriageAccident InsuranceCo v Grant (1879) 4 EX D 216 where the defendant applied for some shares in a company.

These were then allotted to him but he never received the letter of allotment. It was held that a contract existed. More recently, Adams v Lindsell has been reinforced by Brinkibon Ltd v Stahag Stahl and Stahlwarenhandelsgesellschaft GmbH [1983] 2 AC 34 where it was held that acceptance is effective when it is placed in the control of the Post Office, ie. placed in a post box or handed to an officer of the post. There are several theories about the rule in Adams v Lindsell.

One such theory is that the rule prevents an offeree from accepting by post but then nullifying this acceptance by rejecting the offer by a quicker means of communication. Another theory is that without the rule an offeree would not be able to know for certain whether they had actually entered into a contract or not.

It can be seen that in all cases one of the parties is going to suffer hardship, and the rule in Adams v Lindsell results in this party being the offeror rather than the offeree. This can perhaps be justified because when an offeror chooses to start negotiations by post he takes the risk of delay and accidents in the post. Furthermore, the offeror can avoid the rule in Adams v Lindsell by expressly stipulating that he is not to be bound until actual receipt of the acceptance. A further theory for the existence of the postal rule as adopted in Adams v Lindsell is that if the offeror, either expressly or impliedly, indicates that postal acceptance is sufficient then they should bear the consequences of the postal rule, as the defendant did in Adams v Lindsell.

Moreover, Adams v Lindsell could be considered support for the idea that the offeror should be considered as making the offer all the time that the offer is in the post, and that therefore the agreement between the two parties is complete at the moment that acceptance is posted. In Adams v Lindsell itself it was suggested (at 683) that if the rule did not exist “no contract could ever be completed by the post. For if the [offerors] were not bound by their offer when accepted by the [offerees] till the answer was received, then the [offerees] ought not to be bound till after they had received the notification that the [offerors] had received their answer and assented to it. And so it might go on ad infinitum”. One further reason for the existence of the rule in Adams v Lindsell is that the post office can be considered to be the common agent of both parties, and therefore communication to this agent immediately completes the contract.

However, where the letter is not addressed then this will not be enough. Therefore, mere delivery of the acceptance to the agent does not of itself complete a contract for the purpose of the rule in Adams v Lindsell. The Adams v Lindsell postal rule only applies when it is reasonable to use the post as a means of communicating acceptance. So, an offer made in a letter sent by post could be accepted by post.

Yet at other times postal acceptance may be reasonable. For example in Henthorn v Fraser [1892] 2 Ch 27 it was held to be reasonable to post acceptance in response to an oral offer because the parties lived some distance away from each other. However, Adams v Lindsell will not normally apply where acceptance is made by post in response to an offer made by telex, email or telephone. Furthermore, Adams v Lindsell will not apply if the acceptor knew that the postal service was at that time disrupted. Adams v Lindselltherefore has three consequences in English law.

Firstly, a posted acceptance prevails over a previously posted withdrawal of the offer which had not yet reached the offeree when the acceptance was posted. Secondly, acceptance takes effect on posting even where it never reaches the offeror or only does so after delay.

Finally, the contract is taken to have been made at the time of posting so as to take priority over another contract made after the original acceptance was posted CONCLUSION It is evident that the arguments relating to retention or desertion of the general rule are advanced; it is also clear from the aforementioned that in order to provide the valid conclusion the legislators have to consider many aspects of communication that is conducted by electronic means. In writer’s view it is essential to also asses the rule applicable to revocation of contract as the technology development has changed the way how and when the acceptance takes place and therefore it can be often discriminatory to bind offeror and leave alternatives largely open for the offeree. REFERENCE

https://libromeo.blogspot.com/2012/02/postal-rule.html
https://www.bitsoflaw.org/contract/formation/study-note/degree/acceptance-postal-rule

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The Separate Legal Personalty and Piercing the Corporate Veil

Contents

Types of Businesses
Separate Personality
Lifting the Corporate Veil
Grounds under Which the Veil Is Lifted

BUSINESS LAW

Types of Businesses

A business refers to an organisation involved in the trade of goods, services, or both to consumers. Sole proprietorship is owned by one person and operates for profit. The individual has day-to-day responsibility for running the business however they can choose to operate singly or employ other people. The business is considered to be part of the individual and not a separate entity. As a sole proprietor, all responsibility, debts and liability are assumed by the owner. Therefore, it can be said that all assets of the business belong to the owner. A partnership is an entity with two or more individuals who share ownership of a single business. The partners should consult and have a legal agreement that sets out how profits will be shared, how partners can be bought out and what are the steps that will be taken to dissolve the partnership if needed. Time and capital must also be decided on. Each partner has unlimited liability for the risks, debts and actions the business incurs. Corporations are considered a unique entity, which is separate and apart from its owners. They are treated as individuals under the law. A corporation can be sued, it can be taxed and it can enter into contractual agreements. The owners of a corporation are referred to as shareholders. If ownership changes the corporation does not dissolve thus it has a life of its own. A corporation simply provides a way for individuals to run a business and to share in both profits and losses.

Separate Personality

A separate personality of a company means that the corporation is independent and distinct from the people who own or invest in them. In the case,Salomon V Salomon & Co. (1897), Salomon conducted his business as a soletrader. Hesold it to a company incorporated for the purpose called A Salomon & co ltd.The only members were Mr. Salomon, his wife and their five children. They shared the shares among themselves. Mr.Salomon loan moneys to the business. When the company failed the company liquidator contended that Mr. Salomon loan should not be honoured and that Salomon should be held responsible for thecompany’sdebts. Lord Halsbury LC stated that “it seems to me impossible to dispute that once the company is legally incorporated it must be treated like any other independent person with its rights and liabilities appropriate to itself, and that the motives of those who took part in the promotion of the company are absolutely irrelevant in discussing what those rights and liabilities are.” From this case comes the fundamental concept thata company has a legal personality or identity separate from its members. Members have no interest in a company’sproperty. Inthe caseMacaurav NorthernAssuranceCompany Limited (1925), M bought insurance for his timber estate while he was a sole trader. M later converted his business into a limited company butdid not make another insurance contract. A fire broke out in his timber estate. The insurance company refused M’s claim for compensation. It was held that the insurance was correct not to honour. The house of Lordsheldthat in order to have an insurable interest in property a person must have a legal or equitable interest in that property, M’s claims because M and his company were separate legalentities. Theloss of the timber wasthe company’s lossnot M’s loss.

Lifting the Corporate Veil

The corporate veil is the concept that separates the personality of a corporation from the personalities if its shareholders. It protects them from being personally liable for the company’s debts and also other obligations. However, this protection is not impenetrable. Lifting this corporate veil is when the court disregards the corporate personality and look behind the real person who is in control of said company. The court comes to the conclusion that a company’s business was not or isn’t being conducted in accordance with the provision of corporate legislation. Under the legal concept of piercing the veil, the court may hold the shareholders of the company personally liable for the company’s obligations.

Grounds under Which the Veil Is Lifted

The corporate veil can be lifted in many cases. It can be lifted in the case of:

Fraud/Improper conduct

The courts will pierce the corporate veil when it feels that the company is being used to hide or conceal the identity of the perpetrator of fraud. In the case Gilford Motor Company Ltd v. Horne (1933), Mr. Horne was an ex-employee of the Gilford motor company and his employment contract provided that he could not solicit the customers of the company. In order to defeat this he incorporated a limited company in his wife’s name and solicited the customers of the company. The company brought an action against him. The Court of Appeal was of the view that “the company was formed as a device, a stratagem, in order to mask the effective carrying on of business of Mr. Horne” in this case it was clear that the main purpose of incorporating the new company was to penetrate fraud. Thus the Court of Appeal regarded this case as a mere sham to cloak his wrongdoings.

Tax evasion

The court has the power to disregard corporate entity if it is used for tax evasion purposes. Once the company conducts in schemes of tax avoidance without any necessary legislative authority the veil will be lifted.

Protecting public policy

This occurs when there is a conflict between incorporated companies not adhering to public laws. Courts may pierce the corporate veil to protect policies of the public and also to help prevent transactions that may occur contrary to public policy.

Avoidance of legal obligations

This is where the incorporated company is made and used to avoid any legal obligation(s). The court may disregard the legal personality of this incorporation and assume that no company really existed.

Enemy character

In times of war, the court will be prepared to pierce the veil of the company to determine the nature of the shareholding. A company can be assumed as an enemy character when persons in control of its affairs are residents in an enemy country. In a case stated above the court may examine the character of the persons in real control of the company and then declare it to be an enemy company. In the case Daimler Co. Ltd v Continental Tyre and Rubber Co. Ltd, a company was incorporated in England for the mere person of selling in England. This company sold tyres which were made in Germany by a German company which held the bulk of shares in the English company. The holders of the shares remaining, with the exception of one, and all the directors were Germans who resided in Germany. During World War 1, the English company commenced action for recovery of a trade debt. It was held that the company was an alien company and the payment of debt to it would amount to trading with the enemy. Therefore, the company was not allowed to proceed with this current action. 1

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THE ROME II REGULATION

THE ROME II REGULATION 1 The Rome II regulation is an example of a European Union Regulation that concerns itself with the conflicts of law that are applicable to obligations that are not contractual. As from January 11th 2009, the Rome II regulation was able to create a set of rules that are harmonized within the European Union in regard to a law that would govern the commercial and civil matters of the members of the EU. This is in respect to non-contractual delict, tort or unjust enrichment. This regulation was formed under EC 864/2007[1]. The Rome Convention of 1980 was able to establish analogous rules that could guide the manner which contractual obligations are carried out. The Rome I regulation was able to replace the Rome Convention, in regard to the laws that are able to guide the manner in which contractual obligations are carried out.

This law was applicable to all the members of the European Union, apart from Denmark[2]. The Rome II regulation was initially presented to the commission of the EU in the year 2003. On 11th of July 2007, an amended text was presented to the commission, and officially published on 31st of July 2007[3]. As from 11th of January 2009, the Rome II regulation began to be implemented. However, it applies to all obligations that arose from the 20th of August 2007. However, the document itself is silent in regard to this issue. For purposes of accommodating the various concerns that are raised by the EU parliament, the Rome II regulation came up with applicable laws on privacy and defamation that were acceptable by the members of the European Union. However, this was a difficult process, because most states could not agree on the most acceptable choice of a set of rules that could be used and applied in instances of privacy and defamation. This paper examines this concept of the Rome II regulation, and it seeks to analyze the reasons why the regulation has failed to provide a difference between conduct regulation, and the regulation of loss. The Scope of the Rome II Regulation: Article I of this regulation gives a definition of its scope. In accordance to article I, the Rome II Regulation is applicable to all non contractual issues that pertain to commercial and civil matters.

This is specifically in a situation that involves the conflict of laws[4]. These conflicts of laws may arise in a situation where many nationals of different countries are involved in a conflict; hence there is a dilemma on the type of laws that should be used for purposes of solving the mentioned conflict. For example, take a hypothetical situation where a French cyclist is hurt by a British driver, in Germany.

Three nations are involved in this situation that is the French, the British, and the Germans. The Rome II regulation provides guidance in the laws that will be applicable in solving the above mentioned hypothetical problem or situation. A number of issues are not covered by the Rome II Regulation, and therefore, there are certain laws and provisions which guide the manner in which disputes arising from them are solved. The issues that it does not cover includes the administrative issues, custom matters, issues dealing with revenues, or the liability of the state in regard to the various actions that it commits. Other areas that the regulation does not cover include issues dealing with marriage, relationships, succession and wills, etc[5]. This is an indication that the Rome II Regulation only involves itself with issues that are not contractual, and binding. The European Union has separate laws and regulations that are responsible for guiding the manner in which conflicts arising from contractual obligations are solved. An example of a contractual law in the European Union, is the 2004/ 18/EC public contract directive issued by the European Union.

The aim of this type of law is to help in opening up of the European Union market, by ensuring a free movement of supplies, and products to the member states of the EU. This is an indication that matters touching on contract are not under the mandate of the Rome II Regulation. The central provision of Rome II regulation is found in article 4. Article 4 provides for the residual and the general rules which guide the application of the Rome II regulations. For instance, article 4 (1) of the regulations denotes that the law that shall apply when a damage occurs, is the law of the nation in which the damage under consideration has happened. For instance, in our hypothetical example above, three nations were involved in a dispute. That is France, Germany, and United Kingdom. The cyclist was hurt in Germany, and therefore, the laws that applied in this scenario, were the laws of Germany.

This is despite the parties involved in the conflict were not the citizens of Germany. A good example of the applicability of this principle is seen in the ruling by the ruling of the German Court, in 2009. This was a case brought by a registered association in Germany, against an airline company that had its registration license in Latvia. Under this case, the German Court ruled that as in accordance to the provisions of 4 (1) of the Rome II regulation, any action of the airline company that causes a damage within a particular EU territory, then the laws of the country where the damage occurred shall be applicable, and not the laws of Latvia[6]. Through this ruling, the German Federal Court was able to apply the provisions contained in the Rome II regulation. However, the place of damage rule, as advocated by the Rome II regulation has two major exceptions. The first exception touches on the concept of habitual residence, whereby if the two parties to the conflict had the same habitual residence, then the laws of that state shall apply.

The second exception to this rule is that if the tort that occurred is very close to another country, then the laws of the country under consideration would apply. Conduct Regulation and Loss Regulation: Rome II regulation, under article 17 introduces the concepts of conduct, and the rules of safety. This article denotes that when a judicial system is assessing the conduct of an individual, who is liable for an offence, the judicial court should consider the various laws on conduct and safety in regard to the situation under consideration. These laws under consideration should be the ones which were in place at the time the event occurred, and the place of the conflict or the tort. Symeon Symoneides explains that the Rome II regulation is inefficient in explaining this concept of the conduct of an individual[7]. This is because it leaves it to the interpretation of the interpretation of the various courts and states under consideration.

[8] This is a weakness of the Rome II regulation, and this is because it fails in the harmonization of the various laws of the European Union, which was one of the major objectives of establishing this regulation. This aspect is problematic, and it may lead to a miscarriage of Justice. Take for instance, a conflict that emanates between a German Driver who is able to injure a German tourist in the region of Ireland.

This type of conflict can be heard by a German court, because of the exception of the Place Rule Damage, as contained in Section 4 of the Rome II Regulation. That is, if two people share a habitual residence, then the laws of the resident country shall apply. In determining the liability of the German driver who has injured a German tourist, then the court has the responsibility of analyzing the conducts of the German driver, and a fact to consider is that in Ireland, an individual has to drive on the left side of the road, as opposed to Germany, where an individual has to ride on the right side of the right side of the road. By closely looking at this situation, the German court is at crossroad at whether it is using the international law or domestic laws in solving the dispute under consideration, hence this aspect of safety and conduct is controversial in nature.

However, the Rome II regulation requires that the domestic laws, in regard to safety regulation and conduct should be applied in any matter that is brought before the court. This requirement by the Rome II standard to use the local laws in the determination of the concepts of safety and conduct is not sufficient. This is because some provisions of foreign law, such as laws formed and developed by competent institutions such as tribunals in regard to the determination of a conduct of an individual should be taken into consideration. Therefore, in the development of conduct regulation, Symeonides explains that the ROME II regulation has failed[9]. Furthermore, article 17 of the Regulation only mentions the examination of the conduct of an individual who is liable for an offence. However, this law does not provide an analysis on how to examine and evaluate the conduct of a suspect, and that of his or her victim.

Examples include, whether the person under consideration was driving his car under the influence of alcohol, or if he or she was provoked, and that is the reason why they acted in a manner that they acted[10]. It is based on the weaknesses of article 17 of the Rome II regulation to precisely give a definition of the term conduct, and how to evaluate it, that the regulation fails to efficiently make a distinction between loss regulation and conduct regulation. Take an example on cases that emanates from losses, because of road damages and accidents. Compensation of losses that emanates from road accidents are not always paid by the person who committed the offence, but by the insurance agencies[11]. Based on this fact, a rule which has the responsibility of determining the law that is applicable to road accidents is of utmost importance to the insurance organizations and agencies that would be responsible for paying the losses suffered by the parties in the road accident. Article 17, of the Rome II Regulation is such kind of a law. This is because it introduces the concept of conduct, in examining whether an individual is liable for an offence or not. However, insurance companies are at a dilemma on how to examine and evaluate this concept of conduct.

This is left to the laws of home countries, but a problem may arise in circumstances of habitual residence citizens, who came from a country whose transportation laws are different from the transportation laws of the country where the trial happens[12]. Article 18 is also another controversial law or principle that is stated under the Rome II Regulation, which fails to provide a clear distinction between the regulation of an individual’s conduct, and the regulation of their losses. This regulation denotes that an individual who has suffered losses may claim compensation directly from the insurance agents of the person who has caused the damage or the loss. This is as long as the low that regulates non-contractual obligations and the law that regulates insurance relations has a provision for this type of conduct. This regulation is advantageous in the sense that both laws that guide a particular aspect are placed under the same equal status. However, this law is controversial in the sense that it does not identify the manner in which the courts should use for purposes of determining the laws that should be used in protecting the victim[13]. For example, should the court use a law that is more advantageous to the victim, or should the court allow the victim, with the advice of his or her lawyers to determine the best law that would protect their interests.

Based on this dilemma, scholar explains that the Rome II regulation has failed to provide a clear distinction between the regulation of losses and the regulation of conducts. Conduct is seen in regard to the action that the court should use in determining the best approach of solving the case. Furthermore, the regulation of losses is also seen on the dilemma in which the courts have, on the best law that they can use for purposes of protecting the interests of the victim. Furthermore, under the Rome II Regulation, it is difficult to identify and explain how to assess damages or losses. For instance, article 2 (1) of the regulation manages to identify and explain what this concept of damage is[14]. It denotes that damages or losses are consequences that are arising from unjust enrichment, tort, or even delict. Controversy lies on article 4 (1) which explains that the Rome II Regulation is only applicable to indirect consequences.

This law ignores direct consequences which have the capability of causing an indirect damage. Therefore, article 4 (1) of the Regulations makes it difficult to distinguish between the direct and the indirect conducts, that can lead to a damage[15]. Because of the complexity of this situation, the Rome II regulation requires the legislations of the country that is handling the case to determine the direct and the indirect conduct, and therefore whether the action can result to a damage, and claims of compensation, in accordance to the rules of the state under consideration. Conclusion: In conclusion, the Rome II regulation fails to provide a distinction between conduct regulation and loss regulation.

For instance, article 17 of this law just identifies that the courts have to analyze the conduct of an individual, while determining if he or she is liable for an offense or not. This is ambiguous, because the regulation does not provide the mechanism that should be used for purposes of examining and evaluating the conduct of an individual, that lead to the loss or damage under consideration. Furthermore, article 4 (1) of the regulation denotes that only direct consequences can lead to the breach of the Regulation, hence kit would attract penalties. However, this law fails to identify what are these direct conducts, and it is left to the national courts to interpret them, based on the provisions of their laws. However, this is controversial in the sense that when a national court seeks to interpret the law based on the conduct of an individual in a foreign land, and the conduct under consideration directly conflicts with the laws and provision of the court involved in the trial of the defendants.

This specifically applies to the parties who are habitual residents of one country, and they are being tried by their courts, in a crime committed in a foreign land. Article 18 of this law is also controversial in nature, and it does not provide a clear distinction between the regulations of the conduct, and that of the law. This is because it provides for the application of two laws, in regard to the compensation of a loss that emanates from road accidents. These laws are the non-contractual obligation laws, and the insurance laws that touch on compensation. The Rome II regulation does not identify how the courts should apply these laws, for purposes of compensating a victim, and regulating the conduct of an offender. Bibliography: A Dickson, The Rome II Regulation : the law applicable to non-contractual obligations. Updating supplement (1st, Oxford University Press, Oxford 2010) J Ahern and W Binchy, The Rome II regulation on the law applicable to non-contractual obligations : a new international litigation regime (1st, Leiden, Boston 2009) P. Rogerson and J. Collier, Collier’s conflict of laws (4th, Cambridge University Press, Cambridge 2013) S Symeonides, Codifying choice of law around the world : an international comparative analysis (1st, Oxford, New York 2014)

[1] A Dickson, The Rome II Regulation : the law applicable to non-contractual obligations. Updating supplement (1st, Oxford University Press, Oxford 2010) p. 44

[2] J Ahern and W Binchy, The Rome II regulation on the law applicable to non-contractual obligations : a new international litigation regime (1st, Leiden, Boston 2009) p. 26

[3] A Dickson, The Rome II Regulation : the law applicable to non-contractual obligations. Updating supplement (1st, Oxford University Press, Oxford 2010) p. 11

[4] A Dickson, The Rome II Regulation : the law applicable to non-contractual obligations.

Updating supplement (1st, Oxford University Press, Oxford 2010) p. 53

[5] J Ahern and W Binchy, The Rome II regulation on the law applicable to non-contractual obligations : a new international litigation regime (1st, Leiden, Boston 2009) p. 26

[6] J Ahern and W Binchy, The Rome II regulation on the law applicable to non-contractual obligations : a new international litigation regime (1st, Leiden, Boston 2009) p. 19

[7] S Symeonides, Codifying choice of law around the world : an international comparative analysis (1st, Oxford, New York 2014) p. 29

[8] S Symeonides, Codifying choice of law around the world : an international comparative analysis (1st, Oxford, New York 2014) p. 30

[9] S Symeonides, Codifying choice of law around the world : an international comparative analysis (1st, Oxford, New York 2014) p. 33 [10] P. Rogerson and J. Collier, Collier’s conflict of laws (4th, Cambridge University Press, Cambridge 2013) p. 27 [11] P. Rogerson and J. Collier, Collier’s conflict of laws (4th, Cambridge University Press, Cambridge 2013) p. 33 [12] P. Rogerson and J. Collier, Collier’s conflict of laws (4th, Cambridge University Press, Cambridge 2013) p. 37 [13] P. Rogerson and J. Collier, Collier’s conflict of laws (4th, Cambridge University Press, Cambridge 2013) p. 28 [14] P. Rogerson and J. Collier, Collier’s conflict of laws (4th, Cambridge University Press, Cambridge 2013) p. 42 [15] P. Rogerson and J. Collier, Collier’s conflict of laws (4th, Cambridge University Press, Cambridge 2013) p. 43

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The Similar Material Facts for Courts Law Essay

According to the case given by the question, we would like to discuss about whether a high court judge are bound to follow the decision made by the judge of Court of Appeal when they are having the similar material facts. As a High Court judge, Mr Justice Peter is bound to follow the decision of Court of Appeal. Under judicial precedent, decisions made by judge's previously in similar material facts are binding upon future cases depending on the hierarchy of the court. A judicial precedent is a decision of the court used as a source for future decision making. This is also known as stare decisis and by which precedents are binding and must be followed. A court is bound to follow the decision made by higher court and some courts are followed by their own decision. Once a precedent is set whether or not the decision is correct, it cannot be changed until it is being overruled by a higher court in a later case. The hierarchy of court of Malaysia as shown in Diagram 1 consists of Superior courts and Subordinate courts. Under Superior courts, we have Federal Court, Court of Appeal and High Courts. Federal Court is known as Supreme Court before 1 January 1985. Federal Court is the highest court in Malaysia with appellate and original jurisdiction. Next is the Court of Appeal which established in 1994. It has the jurisdiction to determine appeals from judgements of a High Court or a judge thereof and such other jurisdiction as may be provided for under any federal law. [1] Last in the Superior court is High Court which divides into Malaya and Sabah and Sarawak. There are two High Courts with parallel authorization. For the Subordinate courts, it includes sessions courts, the Magistrates courts, the juvenile courts and penghulu's court for Malaya. Ratio decidendi is "the rule of law contained the decision of the court in a case". The judgement must contain the findings of material facts, statement of law and the decision based on the combined effect of the findings and statement. On the other hand, obiter dictum is not binding but only persuasive. It consists of two type of obiter dictum: a statement relates to facts which were not found to exist and a statement which does not form the basis of the decision (dissenting judgement). However, it is hard to distinguish between ratio decidendi and obiter dictum under the cases by the judges. For a precedent to be binding, there are two requirements that must be met. Firstly, it must be a ratio decidendi statement. Next, the court must have a superior, or in some cases, equal status to the court which is considering the statement at a later date. In other words, Mr Justice Peter is bound to apply the rule of law stated in the earlier judgement because the requirements are met and the material facts of the case are similar. Besides that, precedents are classified into original precedent and declaratory precedent. Both of them are equally important as sources of law. Original precedents are rule or law that are newly created or applied. It is use when judge are deciding on a case without a binding precedent and he will decide according to justice, equity and good conscience. For declaratory precedents, there are the existing legal principles that merely declare or apply on the similar case. An example of original judicial precedent is the case of Donoghue v Stevenson. [2] Mrs Donoghue friend's ordered an ice-cream and ginger beer for her at Wellmeadow Caf© in Paisley which owned by Francis Minchella. Mrs Donoghue drank most of the ginger beer and found a decomposed snail in her drink. She was then suffered severe shock, later gastroenteritis, mental depression and loss of wages following time off work. Therefore, she sued the manufacturer, David Stevenson under the Duty of Care in tort of negligence. In this case, one of the members of House of Lords, Lord Atkin has formulated what is known as "neighbour principle" which is about the foresight of the impact of one's acts on one's neighbours is central to the existence of a duty of care in the law of tort, especially on the then developing nascent tort of negligence. Based on the above case, Dutton v Bognor Regis U.D.C. [3] are bound to follow previous decision as both of the cases are about the duty of care. The case is about Plaintiff was the second owner of the house in 1960. In 1963, the walls began to crack, windows could not shut properly, and other defects appeared. Plaintiff was informed that the house was built under unstable foundation. So he sued the council for negligence. He succeeded as a professional person who gives advice as to the safety of buildings owes a duty of care not only to the owner at that time, but to all those who might suffer injury as a result of their subsequent use. Hence, Mr Justice Peter is bound to follow the decision made by the Court of Appeal. This is due to the judicial precedent which is a system where judges are binding to the previously decided cases that are in the similar facts by the court of same status or higher depending on the hierarchy of the courts. In this case, Court of appeal and high court is under superior court but court of appeal is one step higher than the High Court. Diagram 1: Federal Court Court of Appeal High Court in Malaysia High Court in Sabah and SarawakSuperior Court Syariah Court Syariah Court Native Court Sessions Court Sessions Court Juvenile Court Magistrates' Court Juvenile Court Magistrates' Court Subordinate Court Penghulu's Court

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The Pros and Cons of the Law Reform Commission Recognising the Doctrine of Unfairness in Contract Law for Consumer Protection in Irish Law

2. Content: Using your own words, briefly explain your understanding of the essay title and the issue you are being asked to address. What exactly is the essay title asking you to do? In my opinion the essay title was asking for me to research other jurisdictions for evidence of a doctrine of unfairness, how it is stated and used in said jurisdiction. I think that it also called for a comparison to be drawn between the already in place unfairness doctrine elsewhere with consumer protection legislation in the Irish legal sphere, this legal comparison and contrasting would also encompass how the new doctrine and the Law Reform Commission would interact, this being if the LRC would deem it necessary, or completely redundant, and whether it would officially bring a doctrine of unfairness into Irish law or leave it up to judicial decisions to use something of its kind in deciding cases. 7. Overall: Having read the essay Marking Standards, what do you think would be a fair mark for this essay? Explain your reasons. I would give my essay 60% because my essay is adequate but not as good as I had hope I would make. This essay will discuss the pros and cons of the law reform commission recognising, within the law, a doctrine of unfairness for contracts with the aim for consumer protection, debate whether or not a doctrine of unfairness in Irish law is necessary and should said doctrine be welcomed or not. A legal doctrine is a framework, set of rules or procedural steps often established through precedents from cases in the common law, through which judgments can be determined in a given legal case. Now, due to our understanding of a doctrine, this essay can consider the necessity of the unfairness doctrine in Irish law and consider, with reference to previous cases and consumer protection acts already in place, the possible positive or negative ramifications of the inclusion of this doctrine. Overall, the aim of this essay is to discuss the Unfairness doctrine and validate or oppose its introduction to Irish Law. The doctrine of unfairness is a doctrine in United States trade regulation law under which The Federal Trade Commission (FTC) can declare a business practice “unfair” because it is overbearing, oppressive or inimical to consumers even though the practice is not, an antitrust transgression, a commencement of antitrust infraction, a violation of the essence of the antitrust laws, or a misleading or deceptive practice.[1] To begin, the doctrine of unfairness was first authoritatively recognized in American law in Federal Trade Commission v. Sperry & Hutchinson Co., 405 U.S. 233 (1972) although earlier Supreme Court decisions had suggested it in obiter dicta. In the Stamp Company case, the FTC were suing Sperry & Hutchinson Trading Stamp Company for what they thought was an “unfair” practice. This practice was suing “trading stamp exchanges”. Businesses set up for to allow customers, for a fee, to exchange one type of stamp for another, so as to consolidate all their stamps into one set / brand instead of a few. S&H did this so as to suppress what they called “trafficking” of their stamps, which, under their terms and conditions, customers do not own but only have the right to just paste the stamps into the booklets and to redeem said booklets at their S&H redemption centre. Thus meaning that customers were not allowed to buy, sell, swap or exchange their S&H stamps. The FTC were of the opinion that this was “unfair” as it did not allow for consumers who wished to spend their stamps, or their equivalent in monetary amounts, on the essentials such as shoes, food, rent etc. rather than the “luxury” items that the S&H centres offered, such as blenders and food processors, to do so. This case was taken as far as the United States Supreme Court where it was decided in favour of the FTC. Thus leading to the creation of the Doctrine of Unfairness in United States Trade Regulation Law. However, though this doctrine has been utilized in this specific case, the use of the unfairness doctrine has been limited and in some cases, for example R. J. Reynolds Tobacco Co. v. Federal Trade Commission, 192 F.2d 535 (7th Cir. 1951) the doctrine of unfairness was not used at all. This could possibly sway our overall perception of the doctrine as the American legal system have decided that utilizing the unfairness doctrine may not have been necessary or indeed warranted plus, in a situation involving Irish law, we must also consider the currently in place sections of consumer and contract law such as the Sale of Goods and Supply of Services Act 1980 and the Consumer protection acts that are currently used in Irish law and the impact that a doctrine of unfairness may have on cases in which both our current laws and the unfairness doctrine can be applied. Overall, the Doctrine of Unfairness, though valid in certain situations may be overlooked entirely given the correct circumstances in favour of a more clear and decisive ruling. However would a similar Doctrine of Unfairness be welcomed, or even be necessary in modern Irish law? There are pros and cons to this which we shall discuss in due course throughout the essay. In the creation of a doctrine of unfairness we must firstly decide as to whether the doctrine would be created to protect consumers from the unfairness of the bargain, which can be identified by use of rules, or from the unfairness of the outcome of said bargain, which is difficult to define. What is “unfair”? Unfairness in a bargain can be identified and set down in a set of rules, but unfairness in the outcome of a bargain would be ambiguous, uncertain and difficult to resolve. Any rules on this would be decided by a judge in a given court and could change upon appeal if the judge in the appeals court does not uphold the previous judge’s decision. It could also be decided by the Law Reform Commission if they, upon reviewing the law, decided that a Doctrine of Unfairness would be needed or helpful in Irish Law. However, if an Irish judge should make the decision of creating such a doctrine to apply to a case before them, if it is poorly thought out, or the case is too ambiguous so as to allow the undue application of this doctrine to a wide number of cases the courts will see, it could lead to a floodgate effect. A floodgate effect is situation in which a small action, in this case a decision on a case, can result in a far greater effect with no easily discernible limit, this being the foreseeable forced application of the newly created doctrine of unfairness to cases where previously no such principle or rule would have been applied. Overall, the inclusion of the unfairness doctrine would require a clear and concise definition of what is unfair with regard to both the bargain and the result of the bargain and, as such, may lead to an inundation of cases regarding unfairness which in the eyes of the law may be deem permissible under the definition of unfairness. To consider the introduction of the Unfairness Doctrine, we must first take into consideration the Law Reform Commission which is an independent law making body that was established under the Law Reform Commission Act 1975. The functional purpose of the law reform commission is to keep the law under review and, in accordance with the provisions of the 1975 act, shall undertake examinations and conduct research with a view to reforming the law and formulate proposals for law reform. The Law Reform Commission Act 1975 defines law reform to include the development of law, the codification of the law and the revision and consolidation of statute law. This means that if a judge were to recognise a doctrine of unfairness in the law it would need to be recognised and codified by the law reform commission before passing into the law. Although judicial decisions would set legal precedent, to allow the Unfairness Doctrine be passed into Irish law, the Law Reform Commission would, first and foremost, have to define what is deemed to be fair and unfair within the boundaries of contract and or consumer law, nonetheless, the view of what is deemed to be fair varies from person to person and this may lead to varying interpretations of the doctrine and eventually the complete misuse of the doctrine over time. That notwithstanding, one could argue that the rules for statutory interpretation could be applied when considering how to use the unfairness doctrine. The use of the golden rule, the mischief rule and the literal rule. However, before these rules can be applied there would have to be concrete legislation set down to state what is believed to be “unfair” and this needs to be done with great care and certainty. In the determination of what should be deemed “unfair” we could follow what the United States has already decided. Both jurisdictions, the United States and Ireland, are common law jurisdictions and so Federal Trade Commission v. Sperry & Hutchinson Co., 405 U.S. 233 (1972) and R. J. Reynolds Tobacco Co. v. Federal Trade Commission, 192 F.2d 535 (7th Cir. 1951) have persuasive precedents within Irish law even without a doctrine of unfairness explicitly written into the law. Essentially, if the Law Reform Commission were to include the doctrine a necessity to define unfairness would occur and such a process would not be considered ergonomically sound and require frequent review if introduced to Irish law. Looking at this doctrine as applying solely in cases that are incontrovertibly similar to the Sperry & Hutchinson case the use of statutory interpretation methods as mentioned above could disallow the misuse or misapplication of the doctrine. The golden rule is a rule of statutory interpretation which allows a judge to change from the normal meaning given to a piece of law so as to avoid an absurd ruling resulting. This could be used to great effect so as not to create injustices for either concerned party. The Mischief rule would a rule that would also be used to great effect as with the golden rule. The Mischief rule is where the judge would look are the aim of the doctrine of unfairness to determine what mischief it was created to redress and then from this the judge can apply the doctrine to the case if they deem it necessary or appropriate to do so. The Literal rule, is a rule that could be detrimental to the use of this doctrine if the doctrine is not correctly set out with a clear and unambiguous meaning as it is interpreted using the ordinary meaning of the words and language in the statute / legislation unless it is explicitly stated that certain words in the context have alternative meaning. Comparing the Doctrine of Unfairness with Irish legislation allows us to see what effect the doctrine could have if it were to be recognised in Irish law. With consumer protection legislation already in the law this comparison will allow for us to see if there is any necessity for the introduction of an Unfairness Doctrine. The Sale of Goods and Supply of Services Act 1980, as a significant piece of legislation and an intrinsic part of every contract, ensures that all goods and services are of merchantable quality, fit for purpose, Conform to the sample given and are as described, these four elements are the conditions, contestably, that most people would think of when considering how a contract might be considered to be unfair, from this, one could conceivably say that there is no room and no need for another piece of legislation of a similar nature like this doctrine. Despite this frame of mind, it could also be said that there is room for an unfairness doctrine under certain circumstances if it can take less precedence than already in place legislation. For example, if a company such as Sperry & Hutchinson Co. were to be making their stamps and these stamps were to dissolve or diminish in quality to the point of uselessness solely from their one use with the purpose of being placed in an S&H stamp book, then it would violate the Sale of Goods and Supply of Services Act 1980 for not being of merchantable quality nor being fit for purpose, thus rendering the using of the unfairness doctrine moot. However, if, like in the original case Sperry & Hutchinson Co. had only “unfair” policies / practices not regarding production of their stamps but regarding the distribution and movement of the stamps once the public have them in their possession, then this would be a situation where no current legislation would apply and so could open up a place for utilizing a Doctrine of Unfairness. A Doctrine of Unfairness would need to take less precedence than legislation already in place in cases where the two pieces of legislation would be able to both be used. As the Sale of Goods and Supply of Services Act 1980 is a mandatory part of every contract unless it is explicitly state in the creation of the contract as an express term that it will not apply, this should take precedence over any following legislation. Thus opening up an area of law an Unfairness Doctrine can be left to solely apply, business practices and policies within contracts rather than product or production based transgressions. It is the duty of the judiciary to decide on cases that are brought before them in the fairest way they can, being as strict or as lenient as they have to be with the respective cases. Even without the Law Reform Commission deciding to officially adopt a Doctrine of Unfairness within the Irish legal sphere, as previously stated, judges have the ability to use the precedent from American cases such as the S&H and the Camel Cigarette Advertising Cases because American Cases have persuasive precedents. The significance of this is that the decisions of these cases are not binding on any judge in Ireland but, as both the United States and Ireland are common law jurisdictions judges can apply an American legal stance to an Irish case it they deem it fair and appropriate. In summary, the creation and utilisation of a Doctrine of Unfairness in Irish law could be argued easily either for or against. Due to the current state of consumer protection law the doctrine can mostly be thought of as unnecessary except in very specific cases that could very easily be decided in the same way it would with an Unfairness Doctrine without one. As consumers we would all like to be more and more protected against unfair and unjust practices used by companies, and conglomerates, and even each other when we buy from and sell to them. However from the look of its use in US law it would, more likely than not, go unused for a great amount of time either that or it would create an unceasing number of cases coming to court that would succeed because of ambiguity in the creation of the doctrine. Bibliography

FTC v. Sperry & Hutchinson Co., 405 U.S. 233 (1972)
R. J. Reynolds Tobacco Co. v. Federal Trade Commission, 192 F.2d 535 (7th Cir. 1951)
Sale of Goods and Supply of Services 1980
Michael D. Scott, “The FTC, The Unfairness Doctrine and Data Security Breach Litigation: Has the Commission Gone Too Far?” (2007) <https://ssrn.com/abstract=1012232> accessed 25/02/2015
Ernest Gellhorn, “Trading Stamps, S & H, and The FTC's Unfairness Doctrine” Duke Law Journal Vol. 1983:903-958
John Harrington, “Up In Smoke: The FTC's Refusal to Apply the "Unfairness Doctrine" to Camel Cigarette Advertising” Federal Communications Law Journal (1995) Vol. 47 Issue 3 Art. 5 593-610

[1] Federal Trade Commission v. Sperry & Hutchinson Co., 405 U.S. 233 (1972)

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The Scheme of Arrangement under Section 176 of the Companies in Malaysia

Scheme of arrangement under S 176 of Companies Act had been a formal corporate rescue process in Malaysia before the outbreak of financial crisis of South East Asia in 1997.[1] Although the purpose of the provision had never be a corporate rescue mechanism,[2] Scheme of arrangement not only can be applied by the insolvent company as a last straw to clutch at in saving the company, but also by ordinary company for adjustment of members' or creditors' rights, reorganisation of the company’s share capital, and reconstruction or merger of a group of companies.[3] Many companies had sought Scheme of arrangement in saving the company from going into liquidation. Before the amendment in 1998, Some of the companies had just applied the restraining order under s176 merely to delay the repayment of the debt. This had constituted abuses of s176 and thus some amendments had been made. The amendment of section 176 was incorporated in the Companies (Amendment) Act (No.2) Act (A1043) 1998 with effect from 1 November 1998. The amendments retain all the existing provisions of section 176 but have added new provisions in the form of sections 176(10A) to 176(10E). S 176 had been constantly been criticised as having several deficiencies. Firstly, a company can applied for the restraining order in pursuant to s176(10) even without a proposed scheme of arrangement and meetings of creditors can be applied at a later stage. Time limit had not been provided in the provision when a proposed scheme has to be presented. Hence, debtor companies may misapplied the section solely to delay repayment period of the debt so that the company not be declared as insolvent. Secondly, the company existing management is allowed to be in-charged of company’s affairs and actively involve in structuring remedy to save the company from going into liquidation. This had being criticised as no equity because the existing management is the one who makes the company’s financial state become dire. The failure to maintain the company by the existing management cause them loss of confidence from shareholders and the interests of creditors may not be adequately protected.. Thirdly, period of protection is not specified under S176. Court generally grants a six-month period for the scheme and may grants further period to extend the protection for three or six months. Such inconsistent period affects the creditor’s interest as they hardly to recover the debts against the company. In practice, the courts appear to be reluctant in granting a moratorium if the proposed scheme is loosely constructed and if the company who applied for such order is “hopelessly insolvent”.[4] It is illustrated in Sri Hartamas Develepment Sdn. Bhd v MBF Finance,[5] where the court had refuse to grant the orders made by the applicant under Sections 176(1) and 176(10) due to that proposed scheme lacks provisions for enforcement and the company is hopelessly insolvent. The decision has been agreed by several Australian authorities like Re Buildmat (Australia) Ltd.[6] There is another important decision which has also denotes the defects of the pre-amendment of Section 176. In the case of Re Kuala Lumpur Industries Bhd and Others,[7] the applicant filed to set aside the restraining order of debtor company under section 176(10). Depart from two cases mentioned above, the Court granted the restraining order. Thus, much criticisms has been put forward regarding the decision of this case because based on the facts, the applicant debtor did not make an application under s176(10) and only made an application under s176(1). To give remedy in response to the criticisms made by public, the subsections (10A), (10B), (10C), (10D), and (10E) under the S 176(10) had been inserted. Such amendment sought to have a more transparent in application of restraining order and to overcome the defects had been mentioned before. After Re Kuala Lumpur Industries Bhd,[8] an amendment has been made to restrain the period of restraining order for not more than ninety days or such longer period as the Court any for good reason allow if and only if it is satisfied that there is a proposal for a scheme of compromise or arrangement between the company and its creditors or any class of creditors representing at least one-half in value of all the creditors.[9] Besides, debtor company must proved to the court that the applied restraining order is necessary for a scheme of arrangement be prepared. Moreover, the debtor company seeking a restraining order is required to lodge a statement of affairs made up to a date not more than three days before, together with section 176 application. Another amendment is that the debtor company must fully disclose to the creditors the proposed scheme of arrangement. Section 176(10C) provides that upon obtaining the restraining order, a debtor company is not longer be allowed to dispose its properties or to acquire any property other than in the ordinary course of business. Although the provision is amended for betterment as the probabilities of misusing the power granted under section 176 is reduced and an ailing company to ward off claims by obtaining a moratorium is also avoided, the amendment is not comprehensive to address some other defects in the provision. After the provision was being amended, but there is still an absence of an independent third party professional that would be able to determine whether creditors interest has been considered in the scheme .Although an independent director is required but his roles are not clearly stated and in fact he is not a qualified professional who entitled to form a convincing opinion.[10] The Corporate Law Reform Committee (CLRC) had made review and gives recommendation that certain modifications must be made to S 176, it can reverts to its pre-amendment form, where finality on the moratorium period had been emphasized, where any extension of moratorium period shall not allowed , and the moratorium period should only be applicable to creditors and not as against regulators.[11] Bibliography Textbook: 1. Shanty Rachagan, Janine Pascoe and Anil Joshi(2010). Concise Principles of Company Law in Malaysia (2nd edn LexisNexis, Petaling Jaya 2010), Chapter 21 2. Committee, C. L. (2007). A CONSULTATIVE DOCUMENT ON (1) REVIEWING THE CORPORATE INSOLVENCY REGIME - THE PROPOSAL FOR A CORPORATE. Kuala Lumpur: Companies Commission of Malaysia. Website: 1. Nor Azimah Hj. Abdul Aziz ADIL(ITM), L. A. (1997, March 30). Malaysian Institute of Accountants . Retrieved December 12, 2014, from https://frsic.my/new/1_resourcecenter_research_detail.asp?id=14 Cases: 1. Sri Hartamas Develepment Sdn. Bhd v MBF Finance[1990] 2 MLJ 31 2. Re Buildmat (Australia) Ltd (1983) 1 ACLC 919 3. Re Kuala Lumpur Industries Bhd and Others [1990] 2 MLJ 180 Statute: 1. Companies Act 1965

[1] See also Aishah Bidin (2003) “ Review of the Corporate debt restructuring regime and insolvency law in Malaysia” Proceedings from Conference on Companies and Securities Law ,organized by Asia Business Forum, JW Merriot, Kuala Lumpur. [2] Section 176 (11) defines “arrangement” as a reorganisation of the share capital of a company by the consolidation of shares of different classes or by the division of shares into shares of different classes or by both these methods. [3] Corporate Law Reform Committee, 'A CONSULTATIVE DOCUMENT ON (1) REVIEWING THE CORPORATE INSOLVENCY REGIME - THE PROPOSAL FOR A CORPORATE REHABILITATION FRAMEWORK; (2) REVIEWING THE COMPANY RECEIVERSHIP PROCESS; AND (3) COMPANY CHARGES AND REGISTRATION PROCESS - IMPROVEMENTS TO THE PRESENT REGISTRATION SYSTEM' [August 2007] 14, 63 [4] Nor Azimah Hj. Abdul Aziz ADIL(ITM), LLM(Wales), Advocate & Solicitor (Kuala Lumpur High Court), Law lecturer, Accounting Dept. Faculty of Business Management, UKM, Bangi, '"Corporate Rescue - Malaysian Scenerio"' (Malaysian Institute of Accountants (MIA) 3/30/1997) <https://frsic.my/new/1_resourcecenter_research_detail.asp?id=14> accessed 17 December 2014 [5] [1990] 2 MLJ 31 [6] "...if the court were to approve the proposed scheme, it would be lending its support to the sending into the market place to trade of a company which was hopelessly insolvent and thus a danger to the business community": Re Buildmat (Australia) Ltd (1983) 1 ACLC 919 [7] [1990] 2 MLJ 180 [8] Ibid [9] Section 176(10A)(a) of Companies (Amendment) Act (No.2) Act (A1043) 1998 [10] Corporate Law Reform Committee, 'A CONSULTATIVE DOCUMENT ON (1) REVIEWING THE CORPORATE INSOLVENCY REGIME - THE PROPOSAL FOR A CORPORATE REHABILITATION FRAMEWORK; (2) REVIEWING THE COMPANY RECEIVERSHIP PROCESS; AND (3) COMPANY CHARGES AND REGISTRATION PROCESS - IMPROVEMENTS TO THE PRESENT REGISTRATION SYSTEM' [August 2007] 14, 70 [11] Corporate Law Reform Committee, 'A CONSULTATIVE DOCUMENT ON (1) REVIEWING THE CORPORATE INSOLVENCY REGIME - THE PROPOSAL FOR A CORPORATE REHABILITATION FRAMEWORK; (2) REVIEWING THE COMPANY RECEIVERSHIP PROCESS; AND (3) COMPANY CHARGES AND REGISTRATION PROCESS - IMPROVEMENTS TO THE PRESENT REGISTRATION SYSTEM' [August 2007] 14, 70

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The Responsibility of Multinational Corporations to Promote Human Rights and the Environment

Do multinational corporations have a responsibility under international law to promote human rights and the environment in the countries where they do their business? Introduction ‘Multinational corporations’ (MNCs)’ which can be defined as the companies run the business and set up the factories away from the place they are located. MNCs have a considerable influence on global economy with the spread of technology and development of deep globalization. They enlarge the scope of their business to strengthen domestic structure and develop overseas subsidiaries. Although MNCs can bring greater benefits to societies, it may infringe human rights and destroy the environment in the countries where their subsidiaries and plants sited. MNCs might argue that they only have responsibility to their business for earnings, and the business will advantage local communities by investment and job opportunities. Thus, they will consider the benefit firstly rather than human rights or environment. Nevertheless, with the concepts of human rights and environmental protection changes, MNCs should be regulated to entail the duties of human rights and environment.

The subjects of international law Even though there are various international conventions and treaties about protection of human rights and environment, however, MNCs seem not to be bound by these international regulations directly since they do not have international legal personality. The arguments of whether or not MNCs can become the subjects of international law that they can acquire international rights and owe corresponding duties, also have ability to bring international claims. Traditional theory of international law is restricted to sovereign states, but it is noteworthy that the range of subjects of international law have gradual broadened since the importance of international organisations and human rights increase significantly. Though MNCs play a role in international relations, they have not been given international legal personality yet by considering the advantages and disadvantages. Instead of focusing on the argument of MNCs legal personality, many scholars suggest paying attention to the international rights and obligations which MNCs shall possess and obey. As the question of whether MNCs have the rights and duties under international law, in actual fact, MNCs now have particular rights under several international law such as international investment law and human rights law, MNCs can bring international claims and get compensation, they also have freedom of speech and receive free trial. MNCs should be obligated to undertake international responsibilities while they enjoy these rights.

The development of Corporate Social Responsibility (CSR) Despite MNCs have not been recognised as a traditional subject of international law, however, considering the influences of MNCs on social and environment, the existing international law cannot respond and provide appropriate regulations to MNCs promptly, international law should have been adjusted to harmonise with the changes. The ‘corporate social responsibility’ (CSR) are developed with the intention of responding the gaps between the regulations. The definition of CSR could be that the companies should be in charge of the influences on societies which exerted by themselves. The value of CSR has been noticed internationally, it links the relationship between society, environment, human rights and business operations together. Since the scope of MNCs operation are cross-border which cover various countries and they are mostly in a beneficial position, they should take a wide range of responsibility.

MNCs and The human rights Human rights has become one of international issue since 1945 which has been emphasised in UN charter about the faith of human rights, these rights are inherent and inalienable which provided to all human beings without any discrimination, they are connected and cannot be divided. The protection of general human rights are mostly stipulated and regulated by law no matter how the formation of treaties or other forms. Traditional notions of that government should be under obligation to human rights protection, but it is undeniable that the importance of MNCs has grown substantially. Therefore, there are numerous arguments occurred that whether the MNCs should be liable for protecting human rights. For the purpose of responding to the great impact of MNCs, the range of human rights that MNCs are responsible for the protection has been discussed and established continuously. The protection of human rights for MNCs which they can bring the international proceedings against other nations or firms in an international stage, companies can be on behalf of themselves to attend the judges and have the rights to express their opinion freely, referring to European Convention on Human Rights Article 34 which indicates that not only individuals, but non-governmental organisations and groups can be entitled to claim that their rights are infringed before European Court of Human Rights. According to the evolution of human rights, there are two forms of human rights which are individual rights and collective rights, these two types of human rights should be held in respective esteem by MNCs.

Individual human rights

Individual rights are the acknowledged fact and assured fundamentals those are given to all person separately. It not merely encompasses civil and political rights but includes economic, social and cultural rights by virtue of International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights, these rights are inherent and inalienable. Additionally, referring to The Universal Declaration of Human rights, these rights should be respected by all people and nations and every part of society.

Collective human rights

Collective rights are formed by a group or community no matter whether they are majority or minority groups, even a country. The individuals cannot enjoy the collective rights separately, it should be shared with other people. MNCs and environment More attention has been paid to the global environment issues to the public, the destruction of ecology and environment caused by humankind is undoubted. Especially under the development of free trade, the conflict between trade and environment has arose massively. The root causes of environment degradation are not only international trade but structure change, the transfer of pollution from developed countries to developing countries by investing and shifting the manufacturing industries.

For the reason that MNCs control and deal with the majority of global economic activities as production, management and distribution of the business. They should be held accountable for the continuous degradation and engaged in promoting protection of environment. It is necessary to regulate the behaviour of MNCs by law in order to solve these environmental problems. Conclusion Although MNCs are not strongly regulated and bound by International law, however, with the expansion of environmental concept and human rights, it could be expected that MNCs should have more responsibility for human rights protection and environmental maintenance in order to reach sustainable development for human, companies and whole society.

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The Statutory Contract in Section 33(1) Companies Act 2006

It has often been said s 33 (1) Companies Act 2006 creates a statutory contract, albeit one with very distinctive features. Explain the nature of this statutory contract and who may enforce the provisions of the Articles of Association as a result. The introduction of the Companies Act 2006 amended the law regulating corporations which had been heavily criticized over the last century.

In United Kingdom, a company is created by registering it with a government agency called Companies House, which is an executive agency of the Department for Business, Innovation and Skills. It is a distinct part of the government department with its own budget. The Chief Executive of Companies House is the registrar of companies. In order to register a new company the following items must be filed in an application;

a memorandum of association, which forms the company,
an application for registration,
the company’s constitution, contained in articles of association and initial shareholdings,
a statement of the company’s proposed officer
a statement of compliance.

The Companies Act (CA) 2006 makes a primary change to the company’s constitution. Henceforth the company will effectively have a single constitution.

The articles of association will become the company’s constitution. Formerly there were two components to the constitution the memorandum of association and the articles of association.

Section 33 of the CA 2006, states that “the provisions of a company’s constitution bind the company and its members to the same extent as if there were covenants on the part of the company and of each member to observe those provisions” whereas under the old s 14 of the CA 1985, the memorandum and articles of association, when registered hold both the company and its members accountable to the same extent as if they had respectively been signed and sealed by each member, and provided that they contained covenants on the part of each member to observe all the provisions of the memorandum and articles.” Now The phrase “on the part of the company and each member”, as opposed to simply “on the part of each member” is included in s 33 (1) CA 2006.

The wording of this section, except certain minor variations, may be traced back to the Companies Act 1844. This particular Act adopted the method of forming an unincorporated joint stock company which existed at that time. In effect, the phraseology of previous versions of s 33 ignoring the fact that the company was a separate legal entity appeared to suggest that articles bound only the members. The updated wording of the CA 2006 apparently addressed this oversight.

Articles of association sets out the internal regulations of the company, covering matters such as calling of company meetings, appointment, removal powers of directors, keeping of accounts, payment of dividends and issuing new shares and pre-emption rights. A memorandum of association as defined now in s 8 of the Act is a prescribed form and contains a statement that the subscribers wish to form a company and become members of that company when it is incorporated. If the company has share capital it must also state that the subscribers agree to take at least one share each.

Although this is the document which formally seeks to form the company, it is no longer a constitutional document unlike the position under the CA 1985. An application sets out the company’s proposed name, country of registration, liability of members (under CA 2006, companies continue to be limited by shares or by guarantee or can be unlimited), and whether the company to be private or public, and also must contain the intended address. As defined in s 17 of the Companies Act 2006 (CA) company’s constitution as including the articles of association along with any resolutions and agreements to which Chapter 3 applies.

In general, those setting up a company are free to choose any name they wish.

They are, however, constrained by certain rules. Like ss 58-59 of the CA state that ltd or plc must follow the name. On the other hand Companies House keeps a record of all names and will not register a company with the same name as one already on the register. Restrictions on names include names which would be offensive, blasphemous or treasonous or likely to incite racial hatred.

Also specific approval of the Secretary of State is needed for names that might suggest a connection with government or local authority (s 54). Names or words like police, queen, Great Britain also need approval of Secretary of State. During the life of the company the members may change the name by special resolution (a vote needing a 75% of majority). It should be noted that under the CA 1985 companies were required to determine the objects in the memorandum, which means that they had to specify exactly what they were empowered to do.

Therefore, if a company stepped outside the objects specified , then the company had no legal capacity to do and such transactions would be deemed to be “ulta vires” (beyond authority) and, therefore, invalid. This was a problem from the moment that companies wanted to be able to scrutinize business opportunities that were profitable.

So, in re-examining the area of law, new companies registered since 2006 Act will have unrestricted objects unless the company chooses to have an objects clause restricting what it can do companies from before CA 2006 with an object clause have the power to remove it.

Unusual features of the contract

The contract formed by articles of association differs from a contract of sale of goods or a contact for the construction of building: it does not provide for each party to fulfil certain obligations after which the contract ends. The articles of association of a company are part of the company’s constitution, which sets the internal rules governing decision – making in the company and being the framework within which the company operates.

The contract formed by articles of association is of a type sometimes called “rational contract”, which is characterized by longevity and imperfection, that is, the contract that does not predict the outcome under any circumstance. Bratton Seymour Service Co Ltd v Oxborough [1992] is an indicative case where the Court of Appeal noted that there is considerable difference between the articles of association and a normal contract. The courts have no jurisdiction to rectify the articles of association of a company even if they do not agree with what has been the intention of the contracting parties. It is obvious that s 33 (1) creates a statutory contract which binds the company and the members under the provisions of company’s constitution.

The long term dynamic nature of the relationship between the company and its members and between the members themselves means that ultimately the articles of association may need amendment.

CA 2006 s 21 provides that, subject to any provision for entrenchment, articles can be amended by the members by a 75 per cent of majority of the contracting parties against the wishes of the minority, subject to any provision for entrenchment. In relation to articles of association, unlike a normal contract, the court will not exercise its power to rectify a document and, when interpreting articles, will not take into account surrounding circumstances known to those who registered or amended them. This was illustrated in Scott v Frank F Scott (London) Ltd [1940] where the court found the issue of construction in favour of the claimant and, additionally found that there was no margin for rectification of a company’s constitution.

Enforcing the Contract (Enforcing the Articles)

The legal rights of a company belong to the company as a separate person and any wrong to the company the dominant pretender is the company not the member. The case of Foss v Harbottle (1843) reflects the general principle of company law according to which in order to rectify something wrong done to a company or to the company’s property, or to enforce rights of the company, the company itself is the proper claimant, and the court will not ordinarily entertain an action brought on behalf of the company by a shareholder. The rules in the above case emphasise the courts desire to prevent multiplicity of shareholders suits, to eliminate vexatious and wasteful actions by shareholders and to recognise separate corporate personality.

Company enforce the articles against a Member

According to s 33 CA 2006 both the company and its members are bound to the same extent according to the provisions of a company’s constitution.

This was not clear from the wording of the old s 14 CA 1985. However, judiciary systematically held that the company was a party to the contract. This was defined in Hickman v Kent or Romney Marsh Sheep-Breeders Association [1915] where it was held that the memorandum and the articles of association constitute a contract between the company and the members. Thereafter, in Hickman, a provision requiring a member to refer any dispute with company to arbitration was held binding on the member.

Member enforce the Articles against a Member

It is obvious that the contract binds the members and the company together, but it was misty whether it binds the member’s inter se, but does it meaning that each member has a binding enforceable contract with every other member and, therefore, a shareholder enforces the provisions of the articles against another shareholder.

Thus, the simple question as to whom the proper claimant in such an action would be remains pending and, consequently has been the subject of judicial debate and confusion. In Re Tavarone Mining Co, Pritchard’s Case (1873), Mellish LJ said: “…the articles of association are simply a contract as between the shareholders inter se in respect of their rights as shareholders. They are the deed of partnership by which the shareholders agree inter se.” Further, in Wood v Odessa Waterworks Co (1889), Stirling LJ said: “the articles of association constitute a contract not merely between the shareholders and the company, but between each individual shareholder and every other.”

However, the courts have been reluctant to provide members ofcompanies with contractual remedies in disputes between members. In Welton v Saffrey [1897], Lord Herschell said: “… there is no contract in terms between the individual members of the company; but the articles do not any the less, in my opinion, regulate their rights inter se. Such rights can only be enforced by or against a member through the company, or through liquidator representing the company; but I think that no members has, as between himself and another member, any right beyond that which the contract with the company gives.” In addition, in Salmon v Quin and Axtens Ltd [1909], Farwell LJ, after citing with approval the dictum of Stirling LJ quoted earlier said: “…it may well be that the court would not enforce the covenant as between individual shareholders in most cases.”

The only directly relevant case is Rayfield v Hands [1960], where Vaisey J interpreted the reference to the directors and so held that the article concerned membership and had contractual force.

Specifically he said: “there is a contract inter se directly enforceable by the members against each other, BUT this is not of general application” and stressed the quasi partnership nature of the company he was dealing with. This situation is the most controversial, and it may be that there are further limits on direct enforceability between members.

Therefore, s 33 (1) derived from its predecessors in order to correct the statutory contract, that is, a contract which binds the members and the company inter se but also binds each member inter se.

Member enforce the Article against the Company

Conflicting interpretations of the issue seem to be problematic according to the capacity of the shareholder to enforce what he perceives to be his rights under the articles of association against the company. But, membership rights which have been conferred on the member “qua member” can be enforced. An illustrating case is Pender v Lushington (1877), where during a meeting of members the chairman refused to accept Pender’s votes. He asked the court to grant an injunction to stop the directors acting contrary to the resolution.

He succeeded on the basis of the contract in the articles, which bound the company to the shareholders.

Additionally, in Wood v Odessa Waterworks Co (1889), Stirling J held that the implication of the article of association was that a dividend must be paid in cash and could not be paid in kind. The company was accordingly restrained from acting upon the resolution.[21] Moreover, Lord Wederburn in an article on Foss v Harbottle pointed out a list of the rights which the courts have, in the past, considered to be personal in nature. He included pre-emption rights, the right to have directors appointed in accordance with the articles, the right to be registered as a shareholder and the right to obtain a share certificate. From the above it can be argued that the matter is still less than clear as to what exactly separates a personal membership right from a general membership right.

Furthermore, where it is not a case of the shareholder wanting to enforce a particular right qua member, but rather a breach which constitutes a wrong to the company, then only the company can take an action. On the other hand, whether or not a company sues to enforce its legal rights must be decided by the persons who, under the company’s constitution, have authority to institute legal proceedings in the company’s name.

These will normally be the directors. The principle that a company is the only person able to claim redress for injury to itself is known as the proper claimant principle. It prevents a member of a company claiming redress on behalf of the company. The principle cannot be avoided by redress for a loss.

There are exceptions whether the company is prevented by the wrongdoer from taking action itself. The proper claimant principle applies even if a majority of members support a claim by a member to enforce a right of the company, Mozley v Alston (1847) and if all members are claiming, Hawkesbury Development Co Ltd v Landmark Finance Pty Ltd (1969).

Can an Outsider enforce the Articles?

The articles are a statutory contract between company and members and are therefore, not deemed to constitute a contract between the company and an outsider. They only bind the members in their capacity as members. In Eley v Positive Government Security Life Assurance Co Ltd (1876), the court held that he was an outsider and could not enforce the contract in his capacity as a solicitor. But, it was not clear from the decision whether the position would have been different had he sued as a member.

The articles only gave him rights in his capacity as a member. In Browne v La Trinidad [1887], “… it would be remarkable that, upon the shares being allotted to him, a contract between him and a company, as to a matter not connected with holding of shares, should arise.” Further, in Hickman v Kent or Romney Marsh Sheep-Breeder’s Association [1915], Ashbury J said: “…alike to all shareholders and can only exist by virtue of some contract between such person and the company, and the subsequent allotment of shares to an outsider in whose favour such an article is inserted does not enable him to sue the company on such an article.”

However, on occasion, the company’s constitution may form the basis of a separate agreement.

This was the case, for instance, in Re New British Iron Company ex p Beckwith [1898], where directors were able to imply a contract on the same terms as the articles when suing for their remuneration. Nevertheless, if this is the case then the contract incorporating the terms of the company’s articles may well be on alterable terms since the articles are freely alterable by the company. Be that as it may, articles of association, traditionally caused confusion to both academics and students alike given its conflicting legal effects. S 33 of the Companies Act 2006, which replaced s 14 of the Companies Act, significantly has updated the wording of this traditional awkward section and, consequently resolved some elements especially that of the articles binding both equally the company and its members.

Evidently, there are a lot of gaps and it seems that the only pertinent conclusion to be reached is that s 33 (1) is a complicated contract, unlikely to be settled by precedent, and even with the coming of the modern and uploaded Companies Act 2006, the ongoing debate, most likely, will intensify.

References

Mayson, French & Ryan, 2013, Company Law, 30th edition, Oxford United Press, at pg. 42
Bourne,N, 2011, Bourne on Company Law, 5th edition, Routledge, at pg. 76
Wilde, C, & Weinstein, S, 2009, Smith & Keenan’s Company Law, 14th edition, Pearson Education Limited, at pg. 82
Sime, S, 2010, Company Law in Practice, 8th edition, Oxford University Press, at pg. 22-23

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The Rules Relating to Implied Grant of Easement

The rules relating to implied grant of easements have been described as “strange [and] magic-like” (Sexton and Bogusz, Land Law: Text, Cases and Materials, 2013, 3rd edn, OUP, p 565). Disregarding easements created by prescription, explain these “magic-like“ rules. Do the rules differ in the case of implied reservation of an easement and why is this the case? INTRODUCTION An easement is a right to do something on someone else's land, falling short of a right to possession. More specifically, it is a private right enjoyed by one property owner the "dominant owner", over land belonging to another, the "servient owner". Therefore, an easement imposes a burden on a piece of land (servient land) and constitutes a corresponding benefit to another piece of land (dominant land).An easement constitutes a property right in the servient land, and as such it is generally enforceable against a subsequent owner of the servient land and can be generally enforced by a subsequent owner of the dominant land. . In order to be an easement a right must fall within the criteria laid down in the case of Re Ellenborough Park[1]. The right must, (i) relate to a dominant and servient tenements, (ii) which are owned or occupied by different persons, (iii) accommodate the dominant tenement and (iv) "be capable of forming the subject matter of a grant". Furthermore, an easement will accommodate the dominant tenement where there is sufficient proximity between dominant and servient tenements and where the rights benefit the estate, rather than being a personal right. For instance, in the case of Hill v Tupper[2], where the claimed right benefited the dominant tenement owner’s business rather than the land, the right was incapable of being an easement. The final point takes in both the capacity of the grantor and grantee and that the right claimed falls within the range of rights recognised by the courts as being capable of amounting to easements and such rights as illustrated in the case of Webb v Bird[3], must not be vague or indefinite. Once we have established that a right has the characteristics necessary to be an easement we next need to consider whether an easement has actually been created. There are a number of ways by which an easement may be created. They may be made expressly by the parties or they may be created impliedly, the latter being what this assignment will be focusing on. IMPLIED GRANT ‘To some this was a fiction, to others an ingenious tool. Either way, it allowed the courts to get involved in the contents of contracts without infringing the principle of freedom of contract. Based on the theory that the courts were merely interpreting the presumed intention of the parties, they could incorporate new terms where the contract was silent.’ Appleby in ‘Contract Law’ 2001, published by Sweet and Maxwell, at page 197 There are a number of situations in which an easement may be impliedly granted or reserved as part of a land transaction. However, the courts are readier to imply a grant than a reservation, as we shall see further on. Easements arising by implied grantinitiallytake effect as equitable easements (pending the completion of the relevant lease or conveyance) but subsequently take effect as legal easements. The grant of an easement may be implied where the grantor, the owner of the servient land, disposes of part of its land. There are four ways in which an easement may be impliedly granted and these are by, (i) Necessity, (ii) Common Intention, (iii) Application of the rule in Wheeldon v Burrows[4] and (iv) s 62 of the Land of Property Act (LPA) 1925.

Easements of necessity

An easement of necessity may be granted by implication, where it is considered by the courts as necessary to do so. Firstly, an easement will only be implied by necessity where the estate cannot be used at all without it[5], therefore, necessity claims are usually based on claims to a right of way to ‘land-locked’ land, which is a piece of land is sold off which has no direct access to the public highway system. Without the implication, of an easement by the court, the land would be inaccessible. In the case of Manjang v Drammeh[6] the criteria for there to be an easement of necessity implied were laid down and these include: First, it should be shown that there was a common owner of a legal estate in the two plots of land – ie the plots were in common ownership at one stage. It must be established that access between one of those plots and the public highway can only be obtained over the other plot; and it must be shown that there was a disposition of one of the plots without any specific grant or reservation of a right of access. If there is an alternative access route then no matter how inconvenient this alternative is this may defeat the claim for an easement of necessity. Furthermore, where an easement is implied then the owner of the servient land can fix the route of the easement but it must be reasonably convenient (Pearson v Spencer (1861) 1 B&S 571) and once selected cannot be varied (Deacon v South Eastern Railway (1889) 61 LT 377). Furthermore, the case of London Corporation v Riggs[7] emphasises that an easement of necessity is restricted to the needs of the dominant tenement at the date of the grant. In this case Riggs acquired a piece of farmland which land locked and started tea rooms on his land. Eventhough, it was undisputed that Riggs had an easement granted by necessity over his land, but the question which arose was whether or not the clients of the tea rooms had the same right. It was held that, the way of necessity can only be used for the purposes for which the dominant land was being used at the time the necessity arose. Neither contractors building the tea rooms nor future clientele would have the right to use the easement. Therefore, the scope of an easement which is implied by the court by necessity is not a wide one. (ii) Easements of Common Intention

Implied easements of common intention were defined in the case ofPwllbach Colliery Co Ltd v Woodman[8], as easements necessary to give effect to the manner in which the land sold or retained was intended to be used and they are very similar to easements implied by necessity. However, the scope and extent of an easement implied by common intention may be wider than an easement being implied by necessity. An easement of necessity is only implied to the extent it is needed to enable the land to be used. However, if it can be shown that there was a common intention of the parties, the extent of the resulting easement may be greater.

Therefore, an easement of common intention can therefore arise by implied grant where, the parties have a common intention relating to the use of the dominant or servient land and an easement is necessary to carry out that shared intention. In the case of Wong v Beaumont Property Trust[9], a basement was leased to the plaintiff (Wong) for use as a Chinese restaurant. The lease required the tenant to use the property as a restaurant, but also to control all smells. To do that it was necessary for the Wong to install a ventilation shaft for the smells, which would have to go through the landlord's property, but the landlord refused to give such permission. Wong claimed there was an easement entitling him to put up the shaft. It was held that, there was an easement of common intention, because when the original tenant took the premises, a ventilation shaft was necessary in order for the restaurant to function properly and for smells to be eliminated. In this case, Salmon LJ explained: “[I]f a lease is granted which imposes a particular use on the tenant and it is impossible to use these premises legally unless an easement is granted, the law does imply such an easement as of necessity.” However it should be noted as already mentioned that the scope for creation of implied easements created by common intention is wider than one of necessity. There is an overlap with easements of necessity here as in both cases necessity is a requirement. Necessity and common intention, based on the presumed intentions of the parties are. However, vulnerable to express wording in the grant demonstrating a contrary intention in Nickerson v Barraclough, the conveyance expressly precluded the grant of any rights, and the estate remained landlocked. (III) The Rule in Wheeldon v Burrows The rule in Wheeldon v Burrows[10], requires evidence of a "quasi-easement". A quasi-easement is the use by the owner of a single estate or parts of that estate, in a manner such that an easement would be required if the use of those parts in that manner was to continue if one part was sold. Where a part of that estate is sold, the continued user (assuming the user "crosses" both estates) will be implied as an easement where the quasi-easement was "continuous and apparent" (this might include a roadway denoting a right of way, windows denoting rights of light, or a channel denoting the right to take water) and where its continuation as a "full" easement is "reasonably necessary for the enjoyment" of the dominant tenement (the part of the estate sold). What is “reasonably necessary” is not necessarily a high threshold. A right claimed by way of access will not be “reasonably necessary” if it is simply more convenient (Goldberg v Edwards[11]). However, in Borman v Griffith[12], where the estate benefited from an express right of access to the rear of the property, the courts held that a right of access to the front was reasonably necessary as it was the only way to get to the front door of the premises. The rule in Wheeldon, too, is vulnerable to evidence of a contrary intention. In Squarey v Harris-Smith [13], a standard term in the contract for sale excluded implied rights. The Court of Appeal, declined, on that basis, to find an implied right. (IV) S 62 LAW OF PROPERTY ACT 1925 Finally, s62 Law of Property Act 1925 will imply easements into the transfer of an estate where there is already diversity of occupation between the dominant and servient tenements (for instance on the purchase of a reversion by the tenant). It is long settled law that the operation of s62 can be expressly excluded in a transfer or conveyance. Section 62(1)provides that a conveyance of land shall be deemed to include and shall operate to convey, with the land, all ways, watercourses, liberties, privileges, easements, rights and advantages whatsoever and which (i) appertain or are reputed to appertain to the land or any part of it; or (ii) are, at the time of the conveyance, occupied or enjoyed with the land or any part of it. Furthermore, s62(4) provides that “This section applies only if and as far as a contrary intention is not expressed in the conveyance, and has effect subject to the terms of the conveyance and to the provisions therein contained.” The effect ofsection 62is that on a conveyance of part, quasi-easements exercised by the owner over its retained land, are granted as easements to the person acquiring that part of the land being conveyed. Case law indicates that mere permissions may be upgraded into easements. For example, where a licensee of land has used a right of way over other land belonging to the licensor with their permission, then that permission will be elevated into an easement by section 62 if a lease is subsequently granted to the licensee. For instance, in the case of Wright v Macadam[14], the landlord (defendant) gave his weekly tenant permission to use a shed in the garden for the storage of coal. Later, the landlord granted a new tenancy to the tenant of slightly larger premises (not including the garden). A dispute subsequently arose about the tenant's continued use of the shed. The court held that, there was a privilege (permission to store the coal) at the time that the lease was renewed and therefore s 62 was used to convert this privilege into a full easement. Therefore, in order for a privilege to be converted into an easement under s 62 it is necessary that the privilege exists at the time of the relevant conveyance (or lease). However, there is no requirement that the privilege be necessary or continuous and apparent. On the other hand, there are limits to the s 62 principle, since the right must still satisfy the characteristics of an easement under Re Ellenborough Park, mentioned above. For instance, s 62 only operates where there is a “conveyance”, which includes legal leases, but does not oral leases or documents creating equitable leases. Secondly, the grantor must have the power to grant the easement, i.e. he must be a ‘Competent Grantor’. Section 62 cannot confer a better title on the grantee than the grantor possessed (“nemo dat quod non habet”). Furthermore, s 62 only applies to convert privileges into easements. It could not be used to convert a quasi easement into an easement because in order for s 62 to apply, prior to the conveyance there must be a diversity of occupation (ie dominant and servient land must be owned by different people. IMPLIED RESERVATION A reservation of an easement happens when the vendor sells part of their land and reserves (or keeps) an easement over the land sold. However, courts are reluctant to imply a reservation because if a vendor wishes to retain a right, he should do so expressly in a conveyance. Implying a right is a derogation from grant. Therefore the only types of implied reserved easement are, by Necessity and Common intention and since courts will not allow an easement to be implied under the rule in Wheeldon v Burrows or s 62 in the case of a reserved easement. IMPLIED RESERVATION BY NECESSITY InUnion Lighterage Co v London Graving Dock Co [15]the claim failed, as there was no implied reservation, since (following the second limb ofWheeldon v Burrows) this would amount to a derogation from grant. This was not one of the exceptions to this rule (there was no necessity).In the case Stirling LJ, gave a description of implied reservation of an easement by necessity, stating that “an easement of necessity…means an easement without which the property retained cannot be used at all, and not one merely necessary to the reasonable enjoyment of that property”. Therefore, According to Stirling LJs strict approach, the only situation where this kind of easement will be implied is where the land is land locked. placed on the well-established principle that an easement of necessity can only be implied where without it the land could not be used at all, not whereit is merely necessary to the reasonable enjoyment of the property Adealon International Proprietary Limited v Merton London Borough Council[16] The Court of Appeal has upheld the High Court's decision to reject a landowner's claim for the implied reservation of an easement of necessity. The landowner sold off land that adjoined its property on three sides, speculating that it would obtain planning permission for access to the retained land from the public highway which ran along the fourth boundary of the property. When the planning application was refused, the landowner claimed an easement of necessity over the land that had been sold off. The claim was rejected by both courts, on the basis that any rights of way required by the landowner could have been expressly reserved in the transfer when the adjoining land was sold off. The test of necessity can be a difficult one to satisfy. For example, access by water can be enough to prevent a right of way over land arising by necessity (Manjang v Drammeh (1991) 61 P&CR 194).However, in Sweet v Sommer[17] it was held that an easement of necessity was implied even though the landowner, at the time of the implied grant, could have obtained another means of access by demolishing a building on its own land. IMPLIED RESERVATION BY COMMON INTENTION An easement by reservation may also be implied by common intention and the same case law as for easement by grant will be applied, however they depend upon the presumed agreement of the parties. So it is possible, the rules relating to implied grant may be excluded in a contract for sale or lease. Extinguishment of easements, can be done expressly or impliedly. In the former case, the dominant owner must execute a deed giving up the easement and in the latter case, an implied release it can occur by (i) abandonment or (ii) a radical Change in nature of dominant land. For an easement to be deemed ‘abandoned’, as illustrated in the case of Benn v Hardinge[18], the servient owner can show (i) at least 21 years non-use and (ii) an intention on the part of the dominant owner to abandon the easement. Whereas, a radical change would be, where a property enjoys an easement of support, but the property enjoying this easement is demolished, extinguishing the easement. Although an easement may bereservedby showing common intention, there is a heavier burden of proof for an implied reservation than for an implied grant. InDonovan & Anor v Rana & Anor[19] , the Court of Appeal held that a transferee was entitled to an easement implied by common intention over the transferor's retained land to connect to mains services in the public highway in spite of the transfer containing wording purporting to exclude the grant of additional easements This is because they are all based on the principle of non-derogation from grant whereby a person, having given something, cannot then take away the means of enjoying it. However, the principle of non-derogation from grant is essentially passive in character and a grantor does not have to take additional positive steps to perfect or improve the grant. For example, inWilliam Old International Limited v Arya[20] although the developer had an implied easement to lay service media across neighboring land, that did not oblige the owners of the neighboring land to enter into a deed of grant with a statutory undertaker as this was outside the presumed contemplation of the parties CONCLUSION The implication of easements is no substitute for express easements. Implied easements are conditional, and are vulnerable to a clear contrary intention. Moreover, an implied easement in registered land, if not on the register, is reliant on over-riding status (Sch 3 Land Registration Act 2002), and the right may, therefore, be lost if a third party purchases the servient estate. Reform Note that the Law Commission published a report “Making Land Work: Easements, Covenants and Profits a Prendre” 2011 Law Comm No 237, which has recommended widespread changes to the law of easements. Most particularly, the Law Commission recommends:

Simplifying the law of creation of easements;
Streamlining land registration procedures
Empowering the Lands Chamber of the Upper Tribunal to modify or discharge land obligations.

[1] [1956] Ch. 131 [2] [1863]2 H & C 121 [3] [1863]143 ER 332 [4] (1879) 12 Ch 31 [5] Union Lighterage Co v London Graving Dock Co (1902), Nickerson v Barraclough (1981), Wong v Beaumont (1965) [6] (1990) 61 P & CR 194 [7] [1880] 13 Ch D 798 [8] [1915] AC 634 [9] [1965] 1 QB 173 [10] (1879) 12 Ch D 31 [11] [1950] Ch.247 [12] [1930] 1 Ch 493 [13] [1981] 42 P & CR 116. [14] [1949] KB 744 [15] [1902] 2 Ch 557 [16] [2007] EWCA Civ 362. [17] [2004] 2 P & CR DG24 [18] (1993) 66 P&CR 246 [19] [2014] EWCA Civ 99 [20] [2009] EWHC 599

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The Significance of Disability Anti-Discrimination Laws

DISABILITY ANTI-DISCRIMINATION LAWS 1 There is a great deal of evidence that people are supporting anti-discrimination legislations in the United Kingdom. This evidence emanates from the support that comes from the trade unions, such as the trade union congress, and other organizations which aim at supporting the disabled people within the society. There is no way that denying equal opportunity to the disabled people can be morally justified[1]. This is against the principles of International Human Rights which advocate for equality in regard to an access of resources, and opportunities to all people, regardless of their gender, race, religion, sexual orientation and physique. Initiating anti-discriminatory laws against the disabled is a trend that most western and democratic countries are following. This includes countries such as Canada, United States, Australia, and even New Zealand. It is the responsibility of the government to initiate laws and legislations whose main aim is to protect the disabled people within the society. This was a resolution adopted in 2008 by the United Nations program on actions concerning the disabled people. The aim of this resolution was to help the disabled people achieve their full potential, and recognize the right of all human beings to receive equal treatment, irrespective of their gender, race, religion, sexual orientation, etc. Based on these United Nations resolutions and the need to promote equality of all people within the United Kingdom, the passage of disability anti-discriminatory laws was necessary[2]. One of the legislations that changed the manner, in which disabled people were treated in the UK, is the 1970 Disabled and Chronically Sick Person Act[3]. This law allowed disabled people a right to the equal access of educational and recreational opportunities. Under this law, it was the responsibility of local authorities to ensure that disabled people are not discriminated upon when it came to accessing social and recreational facilities. These local authorities had the duty and the role of providing some special educational needs to children with disability, and this included the deaf, and the blind[4]. This act also made it mandatory for local authorities to create special parking areas, and sanitary facilities that people with disability could use. This law had a very positive effect on the lives of the disabled people. This is because they were able to easily access a variety of services from the government, and other local and private institutions[5]. On this basis, the living conditions of their lives changed, when compared to the way in which the disabled people lived during the periods of 1939-1945. It is important to denote that during this period of 1935 to 1945, the disabled were unable to get an access to quality medical, education and employment opportunities[6]. The Seebohm report of 1968 recognized the need of improving the living conditions of the disabled. This was after an investigation by Seebohm Rowntree on the social status of people with disability and the poor in England. The report denoted that these people lived in very pathetic conditions and most of them were poor. On this basis, there was a need of introducing laws that would protect them. In 1995, parliament passed the disability discrimination act[7]. This law was established for purposes of fighting discrimination of the disabled, and ensuring that they are included in the social, economic, and political development of the United Kingdom. In 2005, the Disability Act of 1995 was amended and it placed an obligation to all public authorities to act in a manner that will create equality of opportunity between people living with disability, and people who are not living with disability. This act also requires all public officials and authorities to act in a manner that will eliminate discrimination and harassment of the disabled because of their disabilities. A case in point is the 2004 case involving Paul vs. the National Probation Service. In this case, the national probation service was unable to initiate policies aimed at fighting the discrimination of disabled people. Paul was a chronically depressed individual, but the national probation service refused to hire him[8]. They also failed to carry out an investigation on the level of his chronic illness and whether he had the capability to carry out the assigned duties. The employment tribunal ruled that the employer was liable of discriminating against a disabled person, and failing to initiate measures aimed at protecting the disabled[9]. Another case is the Archibald vs. the Fife Council. In this case, Mrs. Archibald was unable to walk because of complications in surgery. The council gave her the roles of an office worker, removing her from the sweeping job. When she tried to apply for a promotion, she was unable to get one[10]. This is because the job entailed one to engage in competitive interviews. However, no reasonable adjustments were made by the council to accommodate the interests of Mrs. Archibald. The House of Lords allowed the appeal and denoted that the council was discriminating against her, because they did not make any reasonable adjustments to accommodate her interests[11]. The aims of these disability discrimination laws is to promote and encourage the participation of the disabled in all spheres of their lives, which includes political, economic, and social spheres of their lives. In 2001, based on the need of promoting equity in education, the parliament enacted the 2001 Disability and Special Education Needs Act[12]. This was an extension of the Disability Discrimination Act of 1995, and it highlights virtually all areas of education. This law makes it a crime for school institutions to deny a disabled person education based on his physical incapability[13]. The main purpose of this law is to make sure that disabled people are able to access the same quality of education, like that of their counter-parts who are not disabled. This law manages to explain the various functions and duties of disability bodies[14]. It also explains how these institutions will conduct their affairs for purposes of protecting the disabled people within the society. However, it is important to denote that the Disability and Special Needs Education Act only deals with the methods of avoiding unlawful discrimination of students with disability. In conclusion, the main disability anti-discrimination law in the United Kingdom is the disability discrimination act of 1995. In as much as this law has passed through a series of amendments over the years, it gives people with disability equal rights in areas such as employment, education, access to social facilities, and right of services from government institutions. It is important to denote that currently, the UK uses the equality act as its main anti-discrimination law. It has virtually all the provisions that are contained in the 1995 disability discrimination act. These legislations are necessary and appropriate because they help to promote equitable distribution of resources. Bibliography: Julie Anderson, War, disability and rehabilitation in Britain: "soul of a nation".( Manchester: Manchester University Press, 2011). Samuel Bagenstos, Disability rights law: cases and materials. (New York: Foundation Press :, 2010). Ruth Colker, Milani Adam, and Bonnie P. Tucker. Federal disability law in a nutshell. (4th ed. St. Paul, Minn.: West/Thomson, 2010).. Andrease Dimopoulos, Issues in human rights protection of intellectually disabled persons ( Aldershot: Ashgate, 2010). . Justin Healey, Disability rights and awareness. (Thirroul, N.S.W.: The Spinney Press, 2010). James Holland,. Employment law 2012. (Oxford: Oxford University Press, 2012). James Holland, Employment law 2013. (Oxford: Oxford University Press, 2013). . Uma Kukathas, Disability rights. (Detroit: Greenhaven Press, 2010). Susan Schweik, The ugly laws: disability in public. (New York: New York University Press, 2009). John Vaughn, A comparative analysis of disability laws. (New York: Nova Science Publishers, 2010).

[1] Susan Schweik, The ugly laws: disability in public. (New York: New York University Press, 2009), p. 31. [2] Samuel Bagenstos, Disability rights law: cases and materials. (New York: Foundation Press :, 2010), p. 51. [3] Julie Anderson, War, disability and rehabilitation in Britain: "soul of a nation".( Manchester: Manchester University Press, 2011), p. 22. [4] Susan Schweik, The ugly laws: disability in public. (New York: New York University Press, 2009), p. 33. [5] Julie Anderson, War, disability and rehabilitation in Britain: "soul of a nation".( Manchester: Manchester University Press, 2011), p. 26. [6] Ruth Colker, Milani Adam, and Bonnie P. Tucker. Federal disability law in a nutshell. (4th ed. St. Paul, Minn.: West/Thomson, 2010), p. 61. [7] Andrease Dimopoulos, Issues in human rights protection of intellectually disabled persons ( Aldershot: Ashgate, 2010), p. 42. [8] James Holland,. Employment law 2012. (Oxford: Oxford University Press, 2012), p. 51. [9] Uma Kukathas, Disability rights. (Detroit: Greenhaven Press, 2010), p. 31. [10] James Holland, Employment law 2013. (Oxford: Oxford University Press, 2013), p. 15. [11] Justin Healey, Disability rights and awareness. (Thirroul, N.S.W.: The Spinney Press, 2010), p, 29. [12] James Holland, Employment law 2013. (Oxford: Oxford University Press, 2013), p. 17. [13] Julie Anderson, War, disability and rehabilitation in Britain: "soul of a nation".( Manchester: Manchester University Press, 2011), p. 52. [14] John Vaughn, A comparative analysis of disability laws. (New York: Nova Science Publishers, 2010), p. 57.

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The Rights to British Citizenship

Question A I am asked to advise a number of parties in relation to their right to British citizenship. From the statement of facts, it is clear that all the parties are related by way of family to a British father, Andrew. In relation to his wife Barbara, a Canadian national, the most appropriate course of seeking British citizenship would be to seek naturalisation as a British citizen in accordance with section 6 and schedule 1 of the British Nationality Act 1981. Under these legislative provisions, there are a number of requirements that one must meet in order to be naturalised as a British citizen. Additionally, these requirements are different for Barbara’s circumstances, as she is seeking naturalisation as the wife of a British citizen. These include:

Being of good character;
A sufficient knowledge of English;
A knowledge of life in the United Kingdom;
Being the husband/wife/civil partner of a British citizen at the time the application was lodged;
A requirement of UK residency for three years preceding the date of the application (and not being outside the UK for 90 days during this period).[1]

Upon analysis of these stringent legislative requirements, it is clear that Barbara could not be afforded naturalisation as a British citizen, as Barbara does not satisfy the three-year residency requirement. Additionally, Barbara does not meet the Crown service requirements which would allow for an exemption from the residency requirement rule.[2] Therefore, in order to be naturalised as a British citizen in this regard, one must already be living legally in the United Kingdom under some form of existing entry clearance, and then seek to become naturalised as a British citizen while still in the UK. There is no scope under section 6 of the British Nationality Act 1981 to seek exemption from this rule, and reliance upon earlier legislation, due to the marriage occurring prior to commencement of the 1981 Act. In regards to Catherine, Andrew’s daughter born in the UK in 1978, reliance must fall upon the Immigration Act 1971, given that Catherine’s birth pre-dates the commencement of the British Nationality Act 1981.[3] As such, it is important to consider the relevant provisions from the 1971 Act that concern Catherine’s circumstances. The 1971 Act mainly refers to the ‘right of abode’, and specifies that: All those who are in this Act expressed to have the right of abode in the United Kingdom shall be free to live in, and to come and go into and from, the United Kingdom without let or hindrance except such as may be required under and in accordance with this Act to enable their right to be established or as may be otherwise lawfully imposed on any person.[4] Additionally, the 1971 Act also specifies the substantive requirements to be granted the right of abode, and says: A person is under this Act to have the right of abode in the Isle of Man if- (a) he is a British citizen…[5] While this may seem to be an initially problematic and contradictory set of provisions, it is important to note that, prior to the commencement of the British Nationality Act 1981 in 1983, birth within the UK was sufficient in itself to grant UK citizenship onto a person. It was not until the 1981 Act was introduced that the rules relating to British citizenship became more challenging and restrictive. Therefore, due to the absence of any legislative provisions to the contrary, it can be concluded that Catherine can be registered as a British citizen, due to her being born in the UK prior to the commencement of more restrictive legislation in the early 1980s. In regards to Andrew’s second daughter, Deborah, who was born outside the UK in 1983, one must turn to the provisions of the British Nationality Act 1981. Given that Deborah is no longer a minor, and must now make an application for British citizenship of her own accord, she is unable to rely on the provisions relating to children born outside the UK.[6] As such, she must rely on the provisions relating to acquiring British citizenship by descent, which are outlined in section 2 of the 1981 Act. The relevant legislation reads: A person born outside the United Kingdom and the qualifying territories after commencement shall be a British citizen if at the time of the birth his father or mother— (a) is a British citizen otherwise than by descent…[7] Given that it has been established that Andrew is a British citizen otherwise than by descent (i.e. he was born in the UK), it is clear that Deborah will be granted UK citizenship upon application. Question B There are processes that exist which allow a person, who has legally been in the United Kingdom for long enough, to apply to become a British citizen. The processes available differ depending on one’s circumstances. It would appear that, based upon Rizwan’s circumstances, the most appropriate method of applying to become a British citizen would be to seek naturalisation. This process is governed by the British Nationality Act 1981. Under these legislative provisions, there are a number of requirements that one must meet in order to be naturalised as a British citizen. These requirements are significantly different to those required of someone who is seeking naturalisation as a husband/wife/civil partner of a British citizen. These include:

Being of good character;
A sufficient knowledge of English;
A knowledge of life in the United Kingdom;
An intention to maintain their home in the United Kingdom;
A requirement of UK residency for five years preceding the date of the application.[8]

Obviously the first hurdle for Rizwan to overcome would be to meet these requirements. In terms of the residency requirement, it would appear that Rizwan meets this criterion, as the facts indicate he has already been in the UK for five years on a work permit. This is perhaps the most stringent criteria to overcome in the immigration process, and it appears that Rizwan passes it quite considerably. The remaining requirements seem to be more of a subjective determination to be made by an immigration official, such as being of sound mind and character. Perhaps the other most daunting task for Rizwan to overcome in order to seek British naturalisation would be to show that he has sufficient knowledge of life in the UK so as to live freely here. This knowledge is tested by way of a written test, which is presented in English. Generally, applicants must demonstrate that they are proficient at speaking and writing English at a certain standard before they will be permitted to sit the test, either by presentation of a certificate attesting to ESOL Level 3, or by undertaking a course to attain same.[9] The test consists of 24 questions which are drawn from information presented in the publication “Life in the UK: A Journey to Citizenship”, available from the Stationary Office.[10] Thus, Rizwan would need to be proficient in the information contained in this publication before sitting the test, in order to maximise his chances of passing the test first time. Additionally, Rizwan would be responsible for paying the £34 fee for the test.[11] Upon successful completion of the test, Rizwan will receive a pass notification letter which he can then attach to his application for British naturalisation on form AN, as proof that he has passed the knowledge of UK life test. The test should be completed before a formal application is submitted. In summary, the procedures for Rizwan applying to become naturalised as a British citizen are relatively straightforward. It is assumed that, as Rizwan has five years of working experience, he will have some understanding of the English language. Additionally, he may also have some practical knowledge of life in the UK, which will help come time to undertake the UK life knowledge test. There is every likelihood that Rizwan’s application will be approved, provided he adheres to the strict procedures of applying to do so. Question C A question has been raised as to whether British immigration law takes sufficient account of a British resident’s wishes to maintain their family life in the UK. In order to make such an assessment, it is fundamentally important to consider the relevant legislative provisions relating to the issue. Firstly, it is important to note that, in order to become naturalised as a British citizen where one has no marital link to the UK, one must prove that there is sufficient intention to maintain their home in the United Kingdom.[12] This represents not so much a wish but a requirement. However, if one was to attempt to naturalise as a British citizen, with a marital link to the UK (e.g. husband or wife), the standards are a little more relaxed. There is no specification for a requirement that says one must maintain their home in the UK after naturalisation,[13] thus indicating a gap in the law in regards to this. Essentially, it appears that the law is significantly more restrictive on those who are seeking naturalisation who come from overseas, without a UK link, rather than those that have effectively married into the UK. While people in either circumstances may already have entry clearance and, possibly, indefinite leave to remain in the UK, the law does take into account an foreign British resident’s wishes to maintain family life in the UK, whereas it does not for those that have (effectively) already started a family with a UK spouse. The above mentioned scenarios highlight key comparative examples of particular times where the UK immigration law can conflict in relation to taking into account one’s wishes to maintain a family life in the UK. It is also important to consider relevant provisions of the Immigration Rules in order to make a more substantive determination. Perhaps one of the most key provisions in the Immigration Rules on this issue is in relation to spouses who intend to enter and remain in the UK with their partner. Under Rule 281(iii), there is a requirement that the two persons who seek to have the spousal status approved for entry will permanently live together following the approval of such a status. It also prescribes for the marriage to be “subsisting”,[14] in other words that it continues to flourish and work. This promotes the idea that the two people will maintain a family life in the UK. In summary, while the immigration law can be conflicting in some circumstances, it is clear that it does take sufficient account of a person’s wishes to maintain family life in the UK upon being granted leave to remain. The law in fact requires, in many circumstances, that people do so in order to be continually granted leave to remain in the UK, or even granted entry at all in some instances. It would be difficult to contend that the law does not provide for maintenance of family life based on the few examples (of many) that exist in UK immigration law. Bibliography Books

Clayton, G, Textbook on Immigration and Asylum Law (2004), London: Oxford University Press
Jackson, D.C., and Warr, G (eds), Immigration Law and Practice (2001), London: Sweet and Maxwell
Karatani, R, Defining British Citizenship: Empire, Commonwealth and Modern Britain (2003), London: Frank Cass
MacDonald, I.A., and Webber, F (eds), Immigration Law and Practice in the United Kingdom (2005, 6th ed), London: LexisNexis Butterworths

Legislation

British Nationality Act 1981
Immigration Act 1971

Other Sources

Border and Immigration Service, ‘Knowledge of Life in the UK’ (2007) <https://www.ind.homeoffice.gov.uk/applying/nationality/knowledgeoflifeintheuk> at 18 April 2007

Footnotes

[1] British Nationality Act 1981, sch 1 paras 3-4. [2] British Nationality Act 1981, sch 1 paras 3-4. [3] British Nationality Act 1981, s 1. [4] Immigration Act 1971, s 1(1). [5] Immigration Act 1971, s 2(1). [6] British Nationality Act 1981, s 3. [7] British Nationality Act 1981, s 2(1). [8] British Nationality Act 1981, sch 1 paras 5-6. [9] Border and Immigration Service, ‘Knowledge of Life in the UK’ (2007) <https://www.ind.homeoffice.gov.uk/applying/nationality/knowledgeoflifeintheuk> at 18 April 2007. [10] Ibid. [11] Ibid. [12] British Nationality Act 1981, sch 1 para 5. [13] British Nationality Act 1981, sch 1 para 3. [14] Immigration Rules, rule 281(iii).

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The Rights of a Trustee

Upon a trustee accepting their role, they are bound by certain duties to the trust and its beneficiaries, which they must exercise with due regard when discharging their trustee power. These are predominantly governed by the Trustee Act 1925, as amended, however there have also been many occasions where the courts have sought to elaborate upon these duties in such a way that widens or restricts the scope of their application, and thus also affects the possible rights of beneficiaries to certain privileges under the trust. This brief will seek to explore the ways that the courts have imposed certain duties and restrictions on trustees, particularly in relation to the disclosure of information. In order to analyse such an issue, it is important to firstly have an understanding of the general fiduciary duties, and other general law duties, of trustees upon their appointment to their position. As such, a number of legislative and common law provisions will be discussed. Perhaps the most important point to be made about the duties of trustees is that it is generally defined by the text of the trust instruments, and the general law simply provides a background that allows a settlor to set the boundaries of these duties. This is best evidenced in the case of Target Holdings Ltd v Redferns (a firm), where Lord Browne-Wilkinson said: …the basic right of a beneficiary is to have the trust duly administered in accordance with the provisions of the trust instrument, if any, and the general law.[1] This means that a breach of duty can only occur if there was a specific duty outlined in the documents that established the trust, or are in breach of general law provisions, and any absence of such a specification means that a trustee has effectively acted in accordance with their duties under the trust. It is also important to note that a testator can also modify or exclude any of the general law duties applicable to trustees by specifying as such in the trust instruments. This may be an unusual situation, however the common law provides for such a scenario to arise. This is best demonstrated by the case of Hayim v Citibank, where Lord Templeman stated: It is of course unusual for a testator to relieve the trustee of his will of any responsibility or duty in respect of the trust property, but a testator may do as he pleases.[2] Essentially then, while the general law imposes certain duties on a trustee, the testator is free to modify and amend these duties as he or she sees fit, thus limiting the scope of application of the general law in relation to trustees’ duties. HayimHIn light of the issue at hand, this could be construed as there not being a duty upon the trustees to minute their trustee meetings, unless there is a specific provision that requires them to do so in the trust instruments. The general law in relation to the disclosure of information to beneficiaries will be discussed in more detail shortly, however the general rule in relation to this would suggest that there is no specific requirement for trustees to document their decisions in the minutes of a trustee meeting. However, if they still choose to do so, they may be subject to the rules of disclosure of information to the beneficiaries upon request, which will be discussed in further detail shortly. In regards to the management decisions that a trustee is allowed to make, there are a number of statutory provisions that indicate to this extent. These include the power to raise money by sale or mortgage of the trust property (but does not apply to the trustees of a charity, which raises separate issues not necessarily within the scope of this brief),[3] the power to give receipts,[4] the power to insure the trust property and pay those premiums out of the trust funds,[5] and the power to compound any liabilities of the testator by taking action that they think fit to resolve the situation.[6] As one can see, the trustees of a trust are given substantial powers to exercise on behalf of the testator (or settlor, as the case may be). As such, there also needs to be recognised limits to this power, which this brief will now discuss. Common law does not recognise the fact that a trustee owes a duty of care to the beneficiaries (and the testator or settlor) when exercising their role, however equity does. Under equity, a trustee is “merely” required “to conduct the business of the trust in the same manner that an ordinary prudent man of business would conduct his own”.[7] This has since been codified in legislation, giving it a more direct and relevant effect.[8] The Trustee Act 2000 gives the duty of care the scope of application to apply to trustees’ decisions relating to investment, acquisition of land, insurance, and also in instances where that managerial power has been delegated to others.[9] Limits to the application of this duty are also recognised, such as that in Re Godfrey, where Bacon V-C said: No doubt it is the duty of the trustee, in administering the trusts of a will, to deal with property intrusted into his care exactly as any prudent man would deal with his own property. But the words in which the rule is expressed must not be strained beyond their meaning. Prudent businessmen in their dealings incur risk. That may and must happen in almost all human affairs.[10] In other words, while the trustee is required to exercise a reasonable standard of care, they cannot be held accountable for any loss incurred where the risk of such a transaction was deemed to be coincidental to the ordinary course of business. In addition to the duty of care, a trustee is required to also act in the interests of fairness to the beneficiaries of the trust, respecting the fact that the beneficiaries obviously need to benefit as a result of the trust. The most authoritative case on this duty is that of Nestle v National Westminster Bank plc, where Hoffman J said: This brings me to the second principle on which there was general agreement, namely that the trustee must act fairly in making investment decisions which may have different consequences for different classes of beneficiaries.[11] This means that a trustee must not only consider the interests of the beneficiaries as a whole when making management decisions, but must consider the fairness of the effects of these decisions with regard to all the different classes of beneficiaries under the trust. These are perhaps the two most relevant duties that a trustee must have regard for, beyond their other fiduciary duties imposed upon commencement of their appointment as a trustee. These fiduciary duties include not to sell trust property to him or herself (the self-dealing rule) and to make the purchase of such property fair (the fair-dealing rule),[12] a duty to not place themselves in a position of conflict,[13] and a rule against unauthorised profit.[14] These are just a few examples of the duties that trustees owe to the beneficiaries, and to the trust as a whole. As one will note, there seems to be no duty that has arisen under general law principles that provides for a requirement for minutes of trustee meetings to be kept. Rather, this is left either to the text of the trust instruments or, where such a specification is absent, the discretion of the trustees. The court recognises that trustees have a “wide discretion” when exercising the role of their office,[15] however it is clear that these powers are quite restricted, but not to the extent where the rationale behind the decisions is required to be documented and presented to the beneficiaries upon request. The idea of a beneficiary’s right to information has been significantly expanded upon by the courts in recent times. Previously, the courts have adopted the view that access to information by the beneficiaries is a proprietary right of being a beneficiary, and that they should have access to all trust documents upon request. This is best displayed in the case of O’Rourke v Darbishire, where Lord Wrenbury said: The beneficiary is entitled to see all trust documents because they are trust documents and because he is a beneficiary. They are in this sense his own.[16] This presented a key issue. It assumes that all information relating to the management of the trust is able to be accessed on a proprietary basis, thus often denying the trustees the confidentiality and, in effect, trust to exercise their role fully without external and extraneous influence. This proprietary right was later objected to in the case of Re Londonderry’s Settlement,[17] where it was held that trustees who exercise a discretionary power are not bound to disclose the reasons for their decision to other parties, but can choose to do so if they wish. Interpreting such conflicting case law is tough. It presents two opposite points of view in relation to the duty of a trustee (or trustees) to disclose information to beneficiaries, making it difficult to establish whether such a duty exists. The most significant progress made on expanding this duty in recent times would be that made in the case of Schmitt v Rosewood Trust Ltd, where it was held that while the previous case law was not easy to reconcile, the overriding concern was to protect the confidentiality of information relating to managerial decision made by the trustees, thus granting them the privacy and security they require to exercise their dispositive discretions, and that such a right would override any proprietary right that a beneficiary may have to that information.[18] This case is technically not binding in England as it relates to a trust formed in the Isle of Man; however it is assumed it will be followed, given it has been followed in a number of other jurisdictions already.[19] In Australia, it has been established that the court must find a balance between disclosure of the information and the need to protect confidentiality in the interests of promoting a safe environment for managerial decision-making.[20] In short, it would appear that the courts are moving more towards the adoption of protection in favour of the trustees, more so than allowing the information to be discovered by the beneficiaries. While there is no clear duty in general law requiring trustees to either record or disclose reasons for their decisions in any event, there is also suitable protection ensuring that, even if such reasons are recorded, they are not subject to easy disclosure to the beneficiaries, due to the often sensitive nature of such business material. In conclusion, this brief has considered many aspects of a trustee’s duty to the beneficiaries and the trust. It discovered that most trustees’ duties arise as a result of their inclusion in the documents that form the trust, and are merely expanded upon by the general law. As such, there is no clear requirement that requires trustees to document and record their decisions (and reasons for those decisions) in the minutes of the meeting, unless there is a specification as to such a procedure in the trust instruments. The general law remains silent on this issue, thus emphasis needs to turn toward the trust instruments themselves, given that it has been established that the testator or settlor is able to modify or exclude general law duties if he or she (or they) specify as such in the trust instruments. In any event, it has also been established that decisions made by the trustees in relation to the management of the trust are afforded considerable confidentiality under the general law, which can often override any proprietary right which a beneficiary may have to the information. It has been established that the board of trustees is not required to disclose its reasons for making a decision, and also that the court will generally be required to make a consideration which balances the need for the information to be released in conjunction with the need for it to be protected in the interests of promoting a safe decision-making environment. The law seems to fall in favour of the trustees, imposing a burden on the beneficiaries to petition the court with just cause as to have the information released, however it seems in all likelihood that a court will often serve to protect the information relating to managerial and administrative aspects of the trust, as it is the trustees that are empowered to make these decisions and, given that the discretion they possess is considerably wide, there is a need for them to exercise this discretion in an environment that would promote safety and the integrity of the decision-making process. Bibliography Books

Pettit, P, Equity and the Law of Trusts (2006, 10th ed), London: Oxford University Press
Watt, G, Todd and Watt’s Cases and Materials on Equity and Trusts (2005, 5th ed), London: Oxford University Press

Legislation

Trustee Act 1925
Trustee Act 2000

Cases

Boardman v Phipps [1967] 2 AC 46, HL
Broere v Mourant & Co [2004] JCA 009, [2004] WTLR 1417
Foreman v Kingstone [2004] 1 NZLR 841
Fry v Fry (1859) 28 LJ Ch 591
Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 403
Hayim v Citibank [1987] AC 730, PC
Nestle v National Westminster Bank plc (1996) 10(4) TLI 11, CD
Re Godfrey (1883) 23 ChD 483
Re Londonderry’s Settlement [1963] Ch 918, [1964] 3 All ER 855, CA
Re the Intermine and the Intertraders Trusts [2004] JLR 325
Re Thompson’s Settlement [1986] 1 CH 99, CD
Schmitt v Rosewood Trust Ltd [2003] UKPC 26, [2003] 3 All ER 76
Sergeant and another v National Westminster Bank plc (1990) 61 P & CR 518, CA
Speight v Gaunt (1883) 9 App Cas 1, HL
Target Holdings Ltd v Redferns (a firm) [1996] 1 AC 421, HL
Tito v Waddell (No 2) [1977] Ch 106, CD

Footnotes

[1] Target Holdings Ltd v Redferns (a firm) [1996] 1 AC 421, 434A, HL (Lord Browne-Jackson). [2] Hayim v Citibank [1987] AC 730, PC (Lord Templeman). [3] Trustee Act 1925, s 16. Also note the fact that a trustee is also compelled to obtain the best price for the sale of the property, which may result in them having to renege on an already existing offer. For an example of this, see Fry v Fry (1859) 28 LJ Ch 591. [4] Trustee Act 1925 as amended, s 14. [5] Trustee Act 1925, s 19. This section is presented as amended by the Trustee Act 2000. [6] Trustee Act 1925, s 15. This section is also as amended by the Trustee Act 2000. [7] Speight v Gaunt (1883) 9 App Cas 1, HL. [8] See Trustee Act 2000, s 1 and sch 1. [9] Trustee Act 2000, sch 1. [10] Re Godfrey (1883) 23 ChD 483, 493 (Bacon V-C). [11] Nestle v National Westminster Bank plc (1996) 10(4) TLI 11, CD (Hoffman J). [12] Tito v Waddell (No 2) [1977] Ch 106, CD; Re Thompson’s Settlement [1986] 1 CH 99, CD. [13] Sergeant and another v National Westminster Bank plc (1990) 61 P & CR 518, CA. [14] Boardman v Phipps [1967] 2 AC 46, HL. [15] Nestle v National Westminster Bank plc (1996) 10(4) TLI 11, CD (Hoffman J). [16] O’Rourke v Darbishire [1920] AC 581, 626-7, HL. [17] [1963] Ch 918, [1964] 3 All ER 855, CA. [18] Schmitt v Rosewood Trust Ltd [2003] UKPC 26, [2003] 3 All ER 76. [19] For example, this case has been adopted in New Zealand in Foreman v Kingstone [2004] 1 NZLR 841. See also Broere v Mourant & Co [2004] JCA 009, [2004] WTLR 1417 and Re the Intermine and the Intertraders Trusts [2004] JLR 325 in Jersey. [20] Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 403.

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The Protection of Childrens’ Rights and Rehabilitation in Malaysia

INTRODUCTION

Children are our future. Every child has the right to a safe, happy and content childhood notwithstanding of their social origin, sex, religion, where and to whom they were born. This is the core principle enshrined in The United Nations Convention on the Rights of the Child (UNCRC), the most widely adopted international human rights treaty of the time.[1] [2] Malaysia too, is committed to provide the best protection and care for the Children, who forms 35% of the population[3]. Since the ratification of UNCRC in 1995[4], Malaysia has taken various steps in executing its responsibilities and commitments under the Convention. This includes the enforcement of the Child Act 2001 [Act 611]. Three specific laws in Malaysia relating to children were amalgamated in Act 611 namely, the Protection Act 1991 that focuses on child abuse and neglect cases; the Juvenile Court Act 1947 (Act 90) that deals with children in conflict with the law as well as the Juvenile Court procedures; and the Women and Girls Protection Act 1973 (Act 106) that provides the protection for the women and young girls who are involved in immoral activities[5]. The sexual crime rate among youth are increasing every year.

Apart from the common crimes like molest and rape cases, prostitution, immoral sexual activities, pregnant out of wedlock involving children are indubitably alarming. Until June 2013, 141 underage girls were rescued from the promiscuous sexual activities and prostitution throughout Malaysia and over the past year, a total of 230 children were rescued and sent to a reform school[6]. For these children, it is never too late for them to be protected and rehabilitated. Part VI of Act 611, taken from Act 106 with further improvement[7], specifically articulates the provisions for the children in need of protection and rehabilitation. Section 38 of Act 611 defines a child[8] is in need of protection and rehabilitation if he or she: (a) is being induced to perform any sexual act, or is in any physical or social environment which may lead to the performance of such act; (b) lives in or frequents any brothel or place of assignation; or (c) is habitually in the company or under the control of brothel-keepers or procurers or persons employed or directly interested in the business carried on in brothels or in connection with prostitution.

In addition, under Section 41, if there is a reasonable cause to believe that the child is being either threatened, intimidated, or to be confined or detained by another for the purposes of prostitution or having sexual intercourse or for any immoral purposes; or the child is pregnant out of wedlock, it is deemed under the law that the child is in urgent need of protection. Any place, institution or centre may be established or appointed as a place of refuge in accordance with Section 55 of Act 611, for the care, protection and rehabilitation of the children. There are three types of care and rehabilitation institution- governmental, semi-governmental and non-governmental organization.[9] Preserving the children’s right and their best interests are essential for the development of every child, including those who are in the custody and rehabilitation. However, Part VI of Act 611 lacks provision on the procedures and protection while in custody. Hence, the aim of the research is to investigate and evaluate to what extent the extent the children’s rights are observed and protected while in custody.

LITERATURE REVIEW Research conducted:

A number of researches with different aims have been conducted on the above category of children. Most of the research focuses on the effectiveness of the program offered. Johari Talib (1985) evaluates the effectiveness of the rehabilitation programme at Taman Seri Puteri Rembau[10]. Azizi Yahaya et all (2001) assesses the effectiveness of the rehabilitation process at Pusat Perlindungan Wanita & Gadis, Taman Seri Puteri Cheras, Jerantut, Rembau and Tunas Bakti Sungai Lereh Melaka[11]. Azizi et all(2010)further evaluate the effectiveness of the programmes conducted at Taman Seri Puteri Batu Gajah, Perak and Kompleks Dar-Assa’dah, Kuala Lumpur[12]. On the other hand, research conducted by Muhamad, Luqman Z (2006)[13] explores the nature of child prostitution in Malaysia and identifies the key characteristics of victimized children. PS Tan et all (2012)[14] investigates the common characteristics of pregnant adolescents residing in a government shelter home. A qualitative research on the daily experiences of the unwed teenage mothers at the shelter homes in Malaysia has been conducted by NJ Saim et all (2013)[15]. A study by Abdullah (2010) examines the social interaction between the staff and the girls at the rehabilitation centre[16].

The findings

According to Muhamad, Luqman Z (2006) the regimented three years system resulted depression, tense and sadness among the young women during the custody. The girls experienced a sense of depersonalization and disconnection due to the ‘control’ and restriction of social intercourse. The generic day-to-day living conditions and routine causes depersonalisation, while the physical and psychological isolation from their family, community, and culture causes disconnection[17]. NJ Saim et all (2013) found that the girls are emotionally insecure to share their feelings or problems with the social worker in charge or the staff who was appointed as their guardian. It was pointed out that some of the staff used derogatory names for them and their babies such as bitch, prostitute, “anak haram” [18]. According to Abdullah (2006) these children have developed pseudo-family relationship and prone to be pretentious throughout the rehabilitation to avoid being punished. In terms of education during custody, Abdul Hadi (1995) sustains that the system and detention are punitive, although it is regarded as a measure to protect the children. This is because their freedom is deprived and often subjected to a programme of instruction such as cooking, which they may not enjoy[19]. The programmes conducted at the rehabilitation centres, commonly cooking, sewing and handicraft making, do not fulfil the needs of society and job placement but rather designed to transform the children into good housewives (Luqman 2006 and Azizi 2010). Furthermore, according to Azizi (2001), the co-curricular activities are less likely to improve discipline as it is confined to leisure activities only[20]. Another important finding is that, there are instances whereby the children were not permitted to meet the adoptive families of their baby. They were also been deprived to sign the consent letter in front of the commissioner of oaths for intra-familial adoptions[21]. (NJ Saim et all). Furthermore, their time with family are often too restricted.[22] (Azizi 2010)(NJ Saim et all).

PRINCIPAL RESEARCH QUESTION

Most of the existing research gives an overview on the effectiveness of the programme offered at the rehabilitation centre. However, there is a deficiency in determining and assessing the adequacy of the law and policies to protect the rights of these children during and post-custody and rehabilitation, which this research seeks to investigate: Research Objective:

To identify the Malaysian law and policy in protecting the rights of the children during and post-rehabilitation programme
To evaluate the law and policies, whether it meets the standard of the UNCRC
To evaluate the effectiveness of the law and policies by looking at the percentage of successfulness and recidivism.

Specific Objective: (concentrating on the following main areas of interest)

The right to education-Proper education is essential for the Children improve their standards of living and will lead to the decrease in disparities and crime opportunities. Many of these children are school dropouts[23]. This research will propose options to enable them to have access to standard education.
Right to be treated with dignity and respect- Girls who are pregnant or previously indulged with prostitution may be socially ostracised by the caregiver. This research will develop a standard of procedure / rules for the children and caregiver and to promote the enhancement of their interpersonal and intrapersonal communication skills.
The well-being of the child (mother) and her baby- This research will propose a solution to ensure these children have the right to standard health care. Besides that, this research will investigate whether the legal procedures on adoption are adhere to.
The integration with the society.- This research will study the children’s experience reuniting with their members and reintegration with the society.

RESEARCH METHODOLOGY

This research will employ qualitative method. The children’s daily activities will be highly considered. Equally, all other Stakeholder on the issue, for instance the Public Welfare Department, the administrator and the staff of the place of refuge, the child protection team, NGOs and the Court for children officer, are expected to take part in the data collection. Fundamentally, the internationalstandards and principles on child protection will be critically studied to set a benchmark.The existing legal and policy framework concerning the children defined in Part VI of the 2001 act shall be scrutinized to determinethe extent to which domestic legislation, systems and policies reflect the principles and provisions of the UNCRC. For these purposes, a library research will be conducted to examine the legal literatures from the primary and secondary sources which includes but not limited to the statutes, case-law, extra-legal materials, books, articles, seminar papers and newspapers.

Secondly, observation, focus groups and personal interviews with defined children. The focus groups will be carefully designed so as to giveevery child the opportunity to express their experiences, views and recommendations. Children-centred approach will be adopted during the interviews. This will place the children at the heart of the research process, by recognising them as strong, capable, and knowledgeable experts on their own lives, possessing knowledge, perspective and interest that is best gained from the children themselves[24]. This is highly important to give the insights of the daily experience of the children and is essential for the evaluation of the implementation of the law and policy on the protection of their rights. In-depth interviews with child rights’ duty-bearers and stakeholders will be conducted in ascertaining the roles and responsibilities. It will also analyse and evaluate the activities being implemented and the achievement to the best interest of the children, as well as investigating the issues that hinder the implementation. RESEARCH PLANNING

BIBLIOGRAPHY

A Study On Pregnant Adolescents Residing In A Government Home: Common Characteristics And Their Views On The Pregnancy Tan Pei Sun, Su Xu Vin, Kevin Tan Teck Meng, Hizlinda Tohid, Noor Azimah Muhammad, Khairani Omar The official Journal of the Academy of Malaysian Family Physician 2012 Volume 7, Number 1, ISSN: 1985-207X (print), 1985-2274 (electronic) Child Protection Laws In Malaysia: The Changing Trend Jal Zabdi Mohd Yusoff A conference paper presented at The 6th International Malaysian Studies Conference (MSC6): Engaging Malaysian Modernity 50 Years and Beyond, 5-7 August 2008 Available at <https://www.scribd.com/document/35692898/Law-and-Child-Abuse> asessed on 1 April 2014 Children in Prostitution: A study of young women in the rehabilitation centres in Malaysia. Mohamad, Lukman Z.(2006) Doctoral thesis, Durham University available at <https://etheses.dur.ac.uk/2688/> retrieved on 4 April 2014 Convention on the Rights of a Child The United Nations Treaty Collection available at < https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11&chapter=4&lang=en> retrieved on 31 March 2014 Keberkesanan Program-Program Pemulihan Tingkah laku Di Taman Seri Putri Batu Gajah Dan Kompleks Dar-Assa’adah. Yahaya, AziziandHashim, SharinandAbd Wahab, Jesmin(2010) Universiti Teknologi Malaysia Institutional Repository (Unpublished) available at < https://eprints.utm.my/10617/> retrieved on 6th April 2014 Listen to the Voices of Unwed Teenage Mothers in Malaysian Shelter Homes: An Explorative Study Nor Jana Saim,Mona Dufker, Malin Eriksson & Mehdi Ghazinou Global Journal of Health Science Vol. 5, No. 5; 2013 ISSN 1916-9736 E-ISSN 1916-9744 Canadian Center of Science and Education Listening to young children Clark, A. & Moss, P. National Children’s Bureau and Rowntree Foundation London, 2001. Muslim States And The Implementation Of The Convention On The Rights Of A Child : With Special Reference To Malaysia' Abdul Ghafur Hamid @ Khin Maung Sein Islam and International Law: Engaging Self-Centrism from a Plurality of Perspectives Marie-Luisa Frick and Andreas Th. MA¼ller 1st Edition , Martinus Nijhoff , The Netherlands 2013. Penyata Rasmi (Hansard) Dewan Rakyat Penggal kelima Mesyuarat Ketiga [Rabu, 20 Oktober 1999] available at < https://www.parlimen.gov.my/hansard-dewan-akyat.html?uweb=dr&arkib=yes> retrieved on 4 April 2014 Population by Age, Malaysia, 2013 Department of Statistics Malaysia Official Portal, available at <https://pqi.stats.gov.my/result.php?token=b59bcc50b48aae3830f1c02bc5cc6b1f> retrieved on 31 March 2014 Program Pemulihan Akhlak Wanita: Sejauhmanakah Keberkesanan Pusat Perlindungan Wanita Membantu Proses Pemulihan? Azizi Yahaya, Yusof Boon, Mohd Anuar Abd Rahman and Abd Rahim Hamdan Paper presented at Persidangan Kebangsaan Pendidikan Moral Dalam Dunia Globalisasi di Universiti Malaya, 23-25 May 2001 available at < https://eprints.utm.my/1561/2/um_akhlak_.pdf> retrieved on 4 April 2014 Protecting Girls: Official Measures against underaged Girls rescued from Moral Danger Abdul Hadi, Z. Kuala Lumpur, University of Malaya Press,1995 Satu Kajian Tentang Sejauhmanakah Keberkesanan Rancangan Pemulihan Di Taman Seri Puteri Rembau, Negeri Sembilan Johari Talib Dissertation (M.Ed.) Fakulti Pendidikan, Universiti Malaya, 1985 Sexual Problems Among Teens In Malaysia: A Case Study At Youth Rehabilitation Centre In Kuala Lumpur, Malaysia Hemaloshinee Vasudevan (Phd Candidate) Interdisciplinary Journal Of Contemporary Research In Business Volume 5, No.4, August 2013 Tema dan isu penyelidikan mengenai gejala sosial pada dekad pertama abad 21 di Malaysia. Azlina Abdullah AKADEMIKA, 78 . pp. 3-14. ISSN 0126-5008.2010

[1] All United Nations member states, except for the United States and Somalia, have ratified the Convention [2] Abdul Ghafur Hamid @ Khin Maung Sein, 'Muslim States And The Implementation Of The Convention On The Rights Of A Child : With Special Reference To Malaysia' in : Marie-Luisa Frick and Andreas Th. MA¼ller (eds),Islam and International Law: Engaging Self-Centrism from a Plurality of Perspectives(1st, Martinus Nijhoff , The Netherlands 2013) at page 290 [3] Department of Statistics Malaysia Official Portal, ‘Population by Age, Malaysia, 2013’, available at < https://pqi.stats.gov.my/result.php?token=b59bcc50b48aae3830f1c02bc5cc6b1f> retrieved on 31 March 2014 [4] The United Nations Treaty Collection, ‘Convention on the Rights of a Child’, available at < https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11&chapter=4&lang=en> retrieved on 31 March 2014 [5] Jal Zabdi Mohd Yusoff, ‘Child Protection Laws In Malaysia: The Changing Trend’ ( A conference paper presented at The 6th International Malaysian Studies Conference (MSC6) : Engaging Malaysian Modernity 50 Years and Beyond, 5-7 August 2008) <https://www.scribd.com/doc/35692898/Law-and-Child-Abuse> assessed on 1 April 2014 [6] Hemaloshinee Vasudevan (Phd Candidate), ‘Sexual Problems Among Teens In Malaysia: A Case Study At Youth Rehabilitation Centre In Kuala Lumpur, Malaysia’, Interdisciplinary Journal Of Contemporary Research In Business, August 2013, Volume 5, No.4. [7] For instance, Section 40 (3) (d) provides that the court may order the parent or guardian of the child to execute a bond for a certain period or other order such as regular visits to the place of refuge. This new provision is included to held parents or guardians responsible to the conduct of the children; Section 43 establishes a new offense against any person who engages or hires a child for that person’s sexual gratification for any valuable consideration. The previous Act did not provide punishment for those involved in the exploitation of women and girls. See: Penyata Rasmi (Hansard), DEWAN RAKYAT, Penggal kelima Mesyuarat Ketiga [Rabu, 20 Oktober 1999], page 30-31, available at < https://www.parlimen.gov.my/hansard-dewan-rakyat.html?uweb=dr&arkib=yes> retrieved on 4 April 2014 [8] Article 1 of UNCRC defines ‘child’ as a person under the age of 18. Similarly, in the Child Act 2001 (Act 611) a ‘child’ is defined as a person under the age of eighteen years; however in relation to criminal proceedings, a ‘child’ is a person who has attained the age of criminal responsibility as prescribed in section 8 of the Penal Code. [9] Nor Jana Saim,Mona Dufker, Malin Eriksson & Mehdi Ghazinou, ‘Listen to the Voices of Unwed Teenage Mothers in Malaysian Shelter Homes: An Explorative Study’, Global Journal of Health Science; Vol. 5, No. 5; 2013 ,ISSN 1916-9736 E-ISSN 1916-9744, Canadian Center of Science and Education [10] Johari Talib, “Satu Kajian Tentang Sejauhmanakah Keberkesanan Rancangan Pemulihan Di Taman Seri Puteri Rembau, Negeri Sembilan” Dissertation (M.Ed.) -- Fakulti Pendidikan, Universiti Malaya, 1985 [11] Azizi Yahaya, Yusof Boon, Mohd Anuar Abd Rahman and Abd Rahim Hamdan, ‘Program Pemulihan Akhlak Wanita: Sejauhmanakah Keberkesanan Pusat Perlindungan Wanita Membantu Proses Pemulihan?’, Paper presented at Persidangan Kebangsaan Pendidikan Moral Dalam Dunia Globalisasi di Universiti Malaya,23-25 Mei 2001, available at < https://eprints.utm.my/1561/2/um_akhlak_.pdf> retrieved on 4 April 2014 [12] Yahaya, AziziandHashim, SharinandAbd Wahab, Jesmin(2010), ‘Keberkesanan Program-Program Pemulihan Tingkah laku Di Taman Seri Putri Batu Gajah Dan Kompleks Dar-Assa’adah ‘. Keberkesanan Program-Program Pemulihan Tingkah laku Di Taman Seri Putri Batu Gajah Dan Kompleks Dar-Assa’adah . pp. 1-16. Universiti Teknologi Malaysia Institutional Repository (Unpublished) available at < https://eprints.utm.my/10617/> retrieved on 6th April 2014. [13] Mohamad, Lukman Z.(2006)Children in Prostitution: A study of young women in the rehabilitation centres in Malaysia.Doctoral thesis, Durham University, available at <https://etheses.dur.ac.uk/2688/> retrieved on 4 April 2014 [14] Tan Pei Sun, Su Xu Vin, Kevin Tan Teck Meng, Hizlinda Tohid, Noor Azimah Muhammad,Khairani Omar, ‘A Study On Pregnant Adolescents Residing In A Government Home: Common Characteristics And Their Views On The Pregnancy’, The official Journal of of the Academy of Malaysian Family Physician 2012; Volume 7, Number 1, ISSN: 1985-207X (print), 1985-2274 (electronic) [15] Nor Jana Saim,Mona Dufker, Malin Eriksson & Mehdi Ghazinou, ‘Listen to the Voices of Unwed Teenage Mothers in Malaysian Shelter Homes: An Explorative Study’, Global Journal of Health Science; Vol. 5, No. 5; 2013 ,ISSN 1916-9736 E-ISSN 1916-9744, Canadian Center of Science and Education. [16] Azlina Abdullah,(2010), “Tema dan isu penyelidikan mengenai gejala sosial pada dekad pertama abad 21 di Malaysia.” AKADEMIKA, 78 . pp. 3-14. ISSN 0126-5008. [17] supra note 11, at page 243 [18] supra note 13, at page 26-27 [19] Abdul Hadi, Z. (1995). Protecting Girls: Official Measures against underaged Girls rescuedfrom Moral Danger. Kuala Lumpur, University of Malaya Press. [20] supra note 11, at page 11 [21] supra note 15 at page 22-23 [22] supra note 10; supra note 15 at page 24 [23] 69.3% of the adolescents who were school dropouts- PS Tan et all, supra note 14 at page 12 [24] Clark, A. & Moss, P. (2001) Listening to young children (London, National Children’s Bureau and Rowntree Foundation)

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The Policy Process: Formulation, Legislation and Implementation

The Policy Process: Formulation, Legislation and Implementation In our nation Spending on Health care persists to rise rapidly and demonstrates no means of slow down in the future. In our nation Health care is tagged as a predicament since the cost of care is progressively outpacing the financial system which places a load on businesses, families, and the community. The cost of healthcare is increasing at a rate that will go beyond the average income and source upsetting outcomes on the public since of the incapability to have the funds for care. This issue fetches incredible strain to families that are operational to endure in our country and have to be concerned if they are economically competent to have the funds for care if required. The expenditure data on health care for our country have got to be scrutinized to recognize where we can securely afford cuts to the expenditures whilst enduring to offer quality care. A significant feature of cutting costs is discovering how the public gives for the services they obtain and the total expenditures percentage they signify. [Anderson GF, Reinhardt UE, Hussey PS, Petrosyan ] Spending on Health care is a predicament in our country and objective of policy is to ease this issue. The future has got to as well be deemed since health care is a significant feature of any nation. An estimate of the economic future needs of our system of health care is significant to recognize since this issue will not set off away if we do not take action. Our country has got to work collectively to institute an additional effective and efficient system of health care. Initiating effectual policies are the means to tackle the increasing concerns of spending of healthcare. It is significant to recognize the different steps that are integrated in the process of policy making. These strides comprise the stage of formulation, stage of legislative, and implementation stage. Formulation Stage Policies are incessantly beneath evaluation and deliberation to effort towards a further superior health care system. Prior to a policy is commenced or appraised there have got to be an matter that calls for enhancement. Policies roughly for all time commence since there is an matter that have got to be tackled. Spending on Health care is increasing at a disturbing rate in the USA. The total expenditures on health care have incessantly risen for the precedent decade and demonstrate no ways of slow down in the future. The stable raise pretenses a hazard to the public by offering them complicated choices amid healthcare and additional precedence In the United States, Health spending records for 17.7% of GDP without a doubt the maximum share in the OECD. In 2012, the USA spend 8508USD for each person on health, 21/2 times more than the average OECD of 3322USD, and the maximum rate in the OECD. Total health spending in the United States, during 2000 and 2010, enlarged within real terms by 4.0% for each year on average,. The nationwide healthcare expenditure is enduring to rise year following year and is estimated to raise 6.1% every year for the subsequently decade. The health care expenditure is gradually outpacing the GDP in our country. This is a apparent matter that calls for changes in policy to ease the overall spending on health care of our country The policy’s formulation stage commences with a concern that a number of persons feel must be changed to help the community for the good. The policy’s formulation stage is when the entire data and information is rendered in relation to the issue. This step is when the entire research is appraised to construct a decision regarding the action that has got to be taken. This stage operates as the planning for the process of policy. The function and preferred results of the policy are identified with the suitable strategies that will be utilized. Legislative Stage In a policy process the legislative stage is an significant stride for policy to rise above to be endorsed. In the process this stage is the one that passes laws and poises healthcare policy with further policies for the public interest. When a concern is recognized the policy process key players have got to deal with their concern to an official of government that will sustain their bill. The stage of legislative comprises the process of constructing a bill that will be employed to deal with the issue. A committee will be structured to lead the bill and operate on the bill prior to legislation takes it to the floor to be voted on. Many policies have difficulty making it through the legislative stage since this is when the bill is scrutinized thoroughly by several significant individuals. Spending on Health care is a concern that must draw policy makers since devoid of efficient policies the expenditure will on no account are beneath control. For bills of healthcare policies to effort they have got to draw legislators that perceive a prospect to create change. It is extremely hard for a bill to be passed if there is no support of political from the legislators. Implementation Stage The policy implementation stage is when all the involvement is completed. This is when the plan of action is out played and the policy obtains its way. Stage of Implementation is extremely significant since this is when dilemmas with the policy are exposed and appropriate alterations to the policy are imperative to evade larger troubles in the future. Implementation of Policy in any system of health care depends upon commitment of provider. Policies that do not deal with the professional organizational and social situations are doubtful to accomplish thriving implementation. However well indented objectives of Political unaided, , are insufficient to change practice. When barriers to implementation of policy subsist in any of these circumstances, the policy might not succeed to meet up its objectives (Krueger, Sword, & Watt, 2005). This phase is when the policy demonstrates why it was generated and identify the effects of the policy. The stage of implementation is when the health care spending policy will divulge if it will aid in sinking costs. This is the stage when the policy will either advantage the health care system or not succeed as a policy. Conclusion The potential health care system economic needs are to institute a reasonable and resourceful way to offer care to all Americans. In the United States Programs are emergent at an indefensible rate and for these programs to endure a vast reform have got to commence. By "unsustainable," we denote that the growth rate, in beyond the by and large gross domestic product growth, would eventually throng out all additional spending (Forman, 2008). This have got to be addressed at the present since the issue will merely carry on to get bad and a lot of persons will not be competent to afford healthcare in the future. To tackle this rising concern, policies have got to be enacted to decrease the total spending of health care of our country. The vital stages that are in the process of policy are the formulation stage, legislative stage , and implementation stage and all seize equivalent value in the process. References Forman, H.P. (2008). National health care expenditure update: a new threat or an opportunity? American Journal of Roentgenology , 190(3), 557. doi:DOI:10.2214/AJR.07.3670 Krueger, P., Sword, W., & Watt, S. BMC Health Services Research, 5(53), .Doi:10.1186/1472- 6963-5-53 Anderson GF, Reinhardt UE, Hussey PS, Petrosyan V:It's the prices, stupid: Why the United States is so different from other countries.Health Affairs2003,22(3):89-105.PubMedAbstract|PublisherFullText OpenURL

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The Policy-Making Process

The Policy-Making Process Policies are ubiquitous. They practically exist in everything, in everywhere. Needless to say, policies are set of rules, protocols or principles that serve as guide towards an optimistic outcome. Policies may marginally differ in description, specifics and goals depending on the context one may want to put it in but they always hold a common denominator – to achieve the desired favorable result. Policies are always in place because it is one of the major reasons that keep an organization strong and intact. Imagine an organization without guide, rules or direction. Imagine the devastations of having improper policies to no policy at all. Thinking of the hardships that may arise is already mind-boggling let alone having to face it in an actual setting. Policy-making is clearly not just a walk in the park. There are tons of factors that must be considered in order to come up with a sensible and effective policy. That said, policy-making should be critically done in a step-by-step, detail by detail procedure. Below are the key stages in policy-making process and every stage is packed with essential points to ponder: I. Problem Identification and Agenda Setting The first stage of policy-making process is the identification of the problem. It is very important that the problem be defined clearly. Apparently, unclear problem equates to unclear solution, worse is wasting time addressing a problem that is vague and blurry. There are different techniques out there that involve critical thinking and analyses to clearly define what the problem is so that appropriate solution could be formulated and applied. Listed below are some of the techniques:

Observation – this is probably the most basic technique in identifying the problem. Through keen and factual observation, the management or the administrator would be able to anticipate and identify an arising problem. One basic example is in a school or classroom setting, a school head officer notices that a significant number of students consistently come in late to class which affects their learning scope as well as the instructors teaching plan. The school head officer may define or implement a policy with the goal of minimizing and even eliminating tardiness instances.
Root Cause Analysis – this technique is basically asking 5 Why’s in order to dig deep into the problem until the root cause is finally determined. According to Six Sigma, asking the 5 Why’s is the simplest tool in analyzing a problem. It is most useful to problems that involve human factors and interactions as well as day-to-day business life. [1]
Cause & Effect Analysis or “Fishbone” Diagram – this technique is majorly designed to identify the causes of a problem. It’s alternately called fishbone diagram because of the use of fishbone-like diagram to present cause and effect. The analysis involves brainstorming sessions so as to extract all possible causes of a problem and rate them according to importance.

After clearly defining the problem and gathering the essential information through the techniques listed above, the next on the list is to set the agenda. This is the point where the defined problem is recognized and hyped so as to get the policy makers’ attention and get it addressed. II. Policy Formation Policy formation is where the negotiation takes place among parties in order to satisfy various interests and eventually build a solid support. Policy formation may vary according to the nature of policy and the organizational structure in which it is made but often includes:[2]

assembling information
developing arguments
developing alternatives
persuading others

In a health care context, policy formation is said to be influenced by a framework called the health policy triangle which was proposed by Walt and Gibson. The triangle presents a complex inter-relationship among context, actors and process.[3] Source: https://www.healthknowledge.org.uk Where, Actors – these are the individuals within the organization whose actions affect the policy. Context – these are factors that may affect the policy: situational, structural, cultural and international.[4] Content – the scope of the policy. Process – the policy-making itself. Generally speaking, policy formation is the stage of policy-making process that involves consideration of the different factors and proposals in order to come up or form a clear cut policy. It is important to bring these factors into the scene so as to address any underlying opportunities that could hinder the implementation of the policy. The framework shown above may or may not apply to the actual setting but it sure informs us that the inter-relationship among the individuals or groups that affects the policy is a key point to take note of. III. Policy Adoption Policy adoption is the stage where the management adopts the policy and put it into recognition and effect. At this stage, the adopted policy may still be subject to revisions or reconstruction based on the inputs or influences of the various interests of involved individuals or groups. IV. Policy implementation Policy implementation is where the action and execution of the plan occur. Lineberry, American Public Policy, described policy implementation as follows: “Policy making is the stage of policy-making between the establishment of a policy and the consequences of the policy for the people whom it affects. Also, implementation involves translating the goals and objectives of a policy into an operating, ongoing program.” (via macrothink.org)[5] The implementation stage also includes analysis of the possible scenarios that may arise be it best or worst. During this stage, a systematic approach is recommended from the implementation itself through identifying possible scenarios or issues and finally formulating action plans to address them. V. Policy evaluation Evaluation is the last step of the process. In this stage, several questions may be asked to measure or assess the crafted policy. A published study course of the California State University cited some questions which may be used in assessing or evaluating a policy:

Was the problem correctly identified?
Were all important aspects covered?
Were recommendations properly implemented?
Is the policy meeting the desired effect?
Should there be any need for changes, revisions or redesigning, what should be done differently?

According to the study course, if the desired effect of the policy was not met it is either of the two failures known as theory failure and program or implementation failure. [6] Where, Theory failure – this failure occurs when the policy was implemented however did not meet the desired effect or result. Yes, the policy was implemented as intended however it did not hit the specific target. This often occurs when the theory formulated to solve the problem is wrong or is not entirely applicable which may be a cause of not considering all factors that may affect the policy during the formation stage. Implementation failure – this failure occurs when the policy was not successfully implemented or executed. Lack of communication may be one of the causes which results to non-compliance of some of the participants that are expected to comply.

[1] Asking “Why?” may (n.d.). Retrieved January 31, 2014, from Six Sigma, Six Sigma Tools & Templates website, https://www.isixsigma.com/tools-templates/cause-effect/determine-root-cause-5-whys/ [2] Steinbach, Rebecca. (n.d.) Principal Approaches to Policy Formation. HealthKnowledge (Education, CPD and Revalidation from PHAST), https://www.healthknowledge.org.uk/public-health-textbook/medical-sociology-policy-economics/4c-equality-equity- policy/principle-approaches-policy-formation [3] Steinbach, Rebecca. (n.d.) Principal Approaches to Policy Formation. HealthKnowledge (Education, CPD and Revalidation from PHAST), https://www.healthknowledge.org.uk/public-health-textbook/medical-sociology-policy-economics/4c-equality-equity- policy/principle-approaches-policy-formation [4] Steinbach, Rebecca. (n.d.) Principal Approaches to Policy Formation. HealthKnowledge (Education, CPD and Revalidation from PHAST), https://www.healthknowledge.org.uk/public-health-textbook/medical-sociology-policy-economics/4c-equality-equity- policy/principle-approaches-policy-formation [5] Noruzi, Mohammad Reza & Irani, Farhad Nezhad Haj. (2011). Policy Affairs and Policy Implementation Issues; How Policy Implementation Can Be Effective?. Journal of Public Administration and Governance, (1)1, 3-4. Doi: 10.5296/jpag.v1i1.718 [6] Implementation, Monitoring & Evaluation (n.d.). Retrieved February 01, 2014 from California State University Long Beach website, https://www.csulb.edu/~msaintg/ppa670/p&sch9.htm#POLICY EVALUATION

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The Rules of the Secret Trusts

Contents

The practical and legal problems
Whether it is a sufficient justification for the acknowledgment of both fully secret and half secret trusts

Conclusion

Bibliography

>Introduction

The secret trusts include fully secret trusts and half secret trusts. They are mechanisms whereby estate can be disposed of without the details of the beneficiary becoming common knowledge. Rules for testamentary dispositions are strict and this is necessarily so since the testator is no longer able to provide evidence of intention.

Despite arising from a historic need, felt acutely, when expectations of society were such that individuals felt compelled to conform despite having aspects of their lives they wished to conceal and still provide financially for their mistresses and illegitimate children after death. So the secret trusts arose as a means of “breaking the rules” surrounding the writing of wills but unfortunately they also break the rules for trust law. It is therefore not surprising that their legal justification is so much in doubt.

The rules of the secret trusts

Inspection of the will reveals nothing about the existence of a secret trust and no details about the beneficiary’s identity in the case of a half secret trust. In a secret trust the testator tells the legatee that he is a secret trustee and what he must do with the property; Ottaway v Norman [1971]. Alterations to the details of a fully secret trust can be made by the testator right up until the time he dies.

Although there are similarities between the two types of secret trust there are also important differences. Communication of a secret trust may be in a sealed envelope; Re Keen [1937]. The secret or half secret trustee must accept the trust; this may be express or implied Wallgrave v Tebbs [1972] or by silence; Moss v Cooper (1861) or conduct; Ottoway v Norman [1972]. An essential element is an obligation which must be legally binding; McCormack v Grogan. There are some important differences between the two types of secret trust as outlined and justified by Wilde, 1995.

The testator must have communicated a fully secret trust to the secret trustee before he, the testator, dies; Moss v Cooper (1861) otherwise the trust fails and the secret trustee will hold the property for himself absolutely; Re Gardner [1920]. If the secret trustee dies before the testator a fully secret trust will fail; Re Maddock [1902] because according to the will the secret trustee is only a beneficiary and a beneficiary must survive a testator. However if the trustee of a half secret trust dies before the testator “equity will not allow a trust to fail for want of a trustee” and another trustee will be appointed; Re Smirthwaite (1861).

In the case of a half secret trust the trust must be communicated to the half secret trustee before the will is made; Blackwell v Blackwell [1929] Reference to instructions after the will is made invalidates the trust; Re Bateman’s Will Trusts [1970].

A half secret trustee may witness a will by which he clearly does not benefit therefore s.15 Wills Act 1837 is inapplicable; Creswell v Cresswell (1868).

The practical and legal problems

The legal requirements in relation to wills confers protection against fraud in the situation where the testator is no longer able to protect his wishes. A will must comply with certain formalities and this is interpreted strictly. S.9 Wills Act 1837 states that to be valid a will must be in writing and signed by the testator in the presence of two independent witnesses who must also sign the will.

Formalities are also required for alterations; Re Edwards [1948].

However the secret trusts are having the effect of handing over property after death and failing to comply with these requirements despite the fact of the will the detail required by statute is just not there. S.25 Wills Act 1837 states that a beneficiary must outlive the testator yet the secret trust is created before the testator dies and the beneficiary’s estate may benefit; Re Gardner (No 2) [1923] but, defying s.25 Wills Act 1837 there is benefit to the estate upon the death of the testator. The anomaly here is that the testator could have changed his will right up until the time of his death.

A fully secret trust contravenes s.53(1)(c) of the Law of Property Act 1925 since nothing need be in writing at the time of transfer during the effect of the will since at this point the legal and equitable interests are fused; Gold v Hill [1999]. A beneficiary under a will cannot witness that will; s.15 of the Wills Act 1837 yet the fully secret beneficiary (but not the fully secret trustee) can; Re Young [1951]. If it were to be accepted that the secret trusts operate outside the will then the law of trusts should apply to them.

Yet they disregard trust law in many respects. For instance expectancy cannot usually be the subject matter of a trust yet this happens for the secret trusts; the secret beneficiary not acquiring the property until the death of the testator.

The secret trustee commits fraud if he breaks his promise to the testator and instead keeps the property for himself. The fraud would actually be committed against the testator and also against the secret beneficiary. Lord Viscount Sumner stated in Blackwell v Blackwell [1929], “the proposed donee [secret trustee] encourages him to bequeath the money in the faith that his intentions will be carried out.” An extension of the fraud is where the secret beneficiary has mischievously encouraged the testator to set up the secret trust in the first place.

This fraud either cannot occur or is exceedingly difficult in the case of a half secret trust since the fact of the trust and the identity of the half secret trustee are both readily available from inspection of the will.

Whether it is a sufficient justification for the acknowledgment of both fully secret and half secret trusts

The fully secret trust may well work because of the effects of the equity maxim “equity will not allow a statute to be used as an instrument of fraud.” If this doctrine was not in existence then if the secret trustee committed fraud by keeping the property he could argue that according to s.9 Wills Act 1837 the will, not complying by not being in writing, negated the trust. It is up to the secret beneficiary to make the challenge; Re Snowden [1979]. The court will not allow the secret trustee to retain the property because the statute relating to formalities has not been adequately met.

The Statute of Frauds 1677 was incorporated into the Law of Property Act 1925 and the Wills Act 1837. These statutes cannot be used by the unscrupulous to fraudulently retain trust property; McCormick v Grogan (1868) LR 4 HL 82. The existence of the half secret trust depends in part upon the mechanism of avoidance of this fraud whereby the secret trustee has to complete the personal obligation that he owes the testator.

The court of conscience about which Lord Viscount Sumner spoke in Blackwell v Blackwell [1929] is equity; meaning that the fraudulent behaviour would be unconscionable and that in this context this doctrine “seems to be a perfectly normal exercise of general equitable jurisdiction.” The unconscionability and the fraud theory are closely linked. Lord Viscount Sumner’s view in Blackwell v Blackwell [1929] is very likely to amount to sufficient justification for the existence of the fully secret trust. However there are difficulties in applying this theory to the half secret trust.

Whilst the unconscionablity is still relevant here the possibility and likelihood of fraud is very much less since the will displays the trust situation for all to see. Partly for this reason the fraud theory has been extended; the fraud being the general fraud on the testator and on the beneficiary; Hodge (1981).

An alternative and more recent view is that the secret trusts are operating outside the will (this is also known as the dehors the will theory); Re Snowden [1979]. This approach was considered in Blackwell v Blackwell [1929]. By this mechanism the secret trusts should not fail because the details were not in writing.

Secret trusts are described as being inter vivos trusts. The point of communication and acceptance between testator and secret trustee marks the point of creation of the trust and this trust is only properly constituted when the testator dies. This approach has had some subsequent support for instance in Re Young [1951] a secret beneficiary by being able to witness the will illustrates that the arrangement was not confined to the written requirements of a will, specifically s.15 of the Wills Act 1837. In the half secret trust to which the fraud theory does not apply and the unconscionability doctrine becomes less applicable there is uncertainty about how such a trust can exist.

The nature of the requirement for the communication of a half secret trust being required before the will is made might be connected with the concept of “incorporation by reference” of a document that already exists; Johnson v Ball (1851). However if a future document is referred to for incorporation the trust will not comply with the Wills Act 1837 and will therefore fail. The dehors the will theory can be criticised because if a secret trust is not within the will and is therefore not within the constraints of the law of wills or propate then the secret trust must instead be subject to the rules of trust law; Challinor, 2005.

There are however a number of important was in which the secret trusts are not compatible with trust law either. When property is not yet acquired but is the subject of the secret trust this is contrary to trust law. An expectancy cannot be the subject of a valid trust. The dehors the will theory is supported in Re Gardner (No 2) [1923] but not in Re Maddock [1902].

In the latter case a secret trust failed because the secret beneficiary died before the testator. This failure illustrates that the rules relating to a will were still having an effect on the secret trust. The dehors the will theory does not provide a comprehensive explanation of the secret trusts; Kincaid, 2000.

Regarding trust law if the secret trusts are operating outside the will there is still the perplexing issue of what types of trusts these are. The majority view as described by Moffat, 2005 is that both types of secret trust are express trusts. However Sheridan, 1951 classes fully secret trusts as constructive. If the secret trusts are express then they ought to comply with trust law regarding s53(1)(b) and s.53(1) Law of property Act. A half-secret trust concerning land has to be evidenced in writing Re Baillie (1886).

Clearly the fully secret trusts do not comply with this requirement and therefore they are more likely to explained as implied trusts. There remains a lack of clear distinctions as to when these trusts are constituted and when they take effect; Ottoway v Norman [1972] and Re Gardner (No 2).

Conclusion

The secret trusts remain a facility now used more by the indecisive when making a will rather than by those who require secrecy. The present arrangement whereby a fully secret testator need not detail the trust before the will is made may be some encouragement to the testator who is slow to make up his mind; Moffat, 2004). This problem could be eliminated by using the rule in the half secret trust whereby the trust must be detailed before the will is made.

The justification for the existence of these trusts has long presented difficulty. Classifying the different types of secret trust as one has contributed to the problem. Whilst there are a number of theories they all encounter inconsistencies with recognised principles of law.

The functioning of these trusts does defy the strict rules of the Wills Act 1837 and whatever justification is accepted for this it still contravenes the basic concept that the details of a will must be evidenced in writing.

Bibliography

Hayton DJ 2004 Hayton & Marshall Commentary and Cases on The Law of Trusts and Equitable Remedies 11th edition London Thomson Sweet and Maxwell Moffat G 2004
Trusts Law Text and Materials 3rd edition Cambridge, Cambridge University Press Articles Challinor E Debunking the myth of secret trusts 2005 Conveyancer and Property Lawyer 2005 492
Hodge, Secret Trusts: The Fraud Theory Revisited 1981 Conv 341 Sheridan 1951 67 LQR 314
Kincaid D The Tangled Web: The Relationship between a Secret Trust and the Will 2000 Conveyancer and Property Lawyer 420 Wilde D Secret and Semi-secret Trusts: Justifying Distinctions Between the Two 1995 Conveyancer and Property Lawyer 366

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The Postal Acceptance Rule

1.0 POSTAL ACCEPTANCE RULE The postal rule is first created in Adam v Lindsell 1818. The court had to decide the contract formation period by mail. Two parties will communicate by post which the acceptance time could not be determined. This is because that mailing often last for few days and both parties could not aware of the communication at the same time.

This caused lots of problems and led to the creation of postal rule to help the problem to be guided and solved. The postal rule had stated ‘where the circumstances are such that it must have been within the contemplation of the parties that, according to the ordinary usage of mandkind the post might be used as a means of communicating the acceptance of an offer, the acceptance is complete as it is posted.’ The postal acceptance rule was formulated as an attempt to provide some degree of certainty to an offeree accepting an offer by post. In support of postal acceptance rule, the courts maintain that if the general rule relating to the acceptance of an offer is applied to the acceptance sent by post, then an offree will never truly be certain of the existence of a binding contract until the offeror communicated the fact of receipt of the letter of acceptance. The court will compelled to examine further policy consideration in order to determine whether the postal acceptance rule could be justified on the grounds of the agency. Post is the requested form of communication between parties or when it is an appropriate and accepted means of communication between parties, acceptance is complete as soon as the letter is posted or put in the mail box. Although if the letter is mislaid or lost and does not reach the offeror to notify them about the acceptance. It is requirement that the letter of acceptance has been properly posted after the acceptance is putted in the mail box. An issue that arised from Postal rule is that there is a period of time, where person are in confuse whether the contract existence or not.

Courts have decide that the offeror assume all the risk, as the offer is still open during the time the letter of acceptance is in the post, Adam v Lindsell. The decision is based on the fact that an acceptance of an offer can go on ad infinitum, back or forth between the parties. If one had to acknowledge the receipt and then the acknowledgement had to be acknowledge so on and so forth.

Unless the offeror has clearly stated in the terms of the offer that acceptance must be communicated by other means the offer must be accepted through the terms of the postal rule. Such the situation arose in the case Holwell Securities Ltd v Hughes 1974 where the in the terms of the offer it was clearly indicated acceptance had to be by ‘notice in writing’. The letter of the acceptance was lost in the post therefore Hughes did not receive a valid acceptance as he had not received a ‘notice in writing’. 2.0 LIMITATION OF POSTAL ACCEPTANCE RULE Firstly, the postal rule only applies to acceptance, not to other communication between contracting parties. Postal rule does not apply where not reasonable for acceptance to be sent by post. Quenerduaine v Cole (1883) The fact is the defendants made an offer by telegram which the plaintiff purported to accept by letter.

The issue is was it be reasonable to accept by letter although the offer is made by telegram? The held is that postal rule did not apply, an offer made by telegram (instantaneous) implied that an equally quick acceptance was required. Secondly, postal rule did not apply if letter was not properly stamped, addressed and posted. Re London & Northern Bank EX P. Jones 1900 The facts is dr. Jones make an offer to the bank, at 7.00 letter of acceptance, addressed correctly but was handed to a postman , who only have authority to deliver letter but not to receive letter.. 9.30 Dr. Jones delivered letter to bank revoking his offer. 19.30 the bank’s acceptance delivered to Dr. Jones. The issue is was the postal rule invoked? The held is that postal ruli did not apply because of the posting is wrong which it is handed to a postman. A letter should be posted in a post box or to the post office which have authority to receive mail, Next is that postal rule can be displaced by the offeror. Holwell Securities Ltd v Hughes (1974) The fact is that defendant sent a grant to sell a property to the plaintiff, which contain clause stipulating option ‘be exercised by notice in writing to the intending vendor’ within six month. Plaintiff then send letter exercising the option, within the time limit, it was lost in the post and never received by defendants.

The held is that postal rule did not apply. Post was suitable method of acceptance but language of offer implied defendants required receipt or written acceptance. Lawton LJ ; ‘ the requirement of ‘notice…to’, in my judgment, is language which should be taken expressly to assert the ordinary situation in law the acceptance requires to be communicated or notified to the offeror and it is inconsistent with the theory that acceptance can be constituted by the act of posting..’ Additionally, to allow the acceptance to be effective without communication would ‘produce manifest inconvenience and absurdity’. Lawton LJ ‘in my judgment the factors of inconvenience and absurdity are but illustration of a wider principle, namely that the rule does not apply if, having regard to all circumstances including the nature of the subject matter under consideration, the negotiating party cannot have intended that there should be a binding agreement until the party accepting the offer or exercising the option had in fact communicated the acceptance or exercise to the other. In my judgment when this principle is applied to the fact of this case it becomes clear that the party cannot have the intended that the posting of the letter should constitute the exercise of the option…’ 3.0 RELEVANT CASE LAW Adam v Lindsell (1818) The fact of Adam v Lindsell is that the defendants wrote to the plaintiff on September 2 which offering to sell the wool and requested that the plaintiff reply ‘in course of post’. The letter of offer is wrongly addressed and makes the letter delivered to plaintiff until September 5 and acceptance is then sent. Because of the delay, the letter of acceptance was not received until September 9 by the defendant and this is two days later than the defendant thought he will receive it. Because of this, on the September 8, the defendant had sold the wool to the third party.

The court held that the contract is formed and the offer is accepted as soon as the letter of acceptance had been posted. Thus, in Adam v Lindsell there was indeed a contract in existence before the sale of wool to the third party, even though the letter had not actually been received by the defendants. Acceptance complete and binding contract form on September 5 when the letter of acceptance had been posted. The defendants therefore had been liable in breach of contract. Household Fire and Carriage Accident Company v Grant The fact is that Grant had negotiated to purchase shares in Household Fire which his application was accepted and his name was list in the registered shareholdersand the letter to inform him had been sent. However, the letter informing the appellant did not reached him and thus, Grant never paid for his shares because he did not aware of it. His earning of dividends was credited into his account as a registered shareholder.

Eventually, Household Fire went into liquidation and liquidator applied money from appellant because he already listed as a shareholder. He refused to pay on the ground that he is not the shareholder because he had not received the notification on mail and he is not aware that he is listed and the application is accepted. The trial judge found that the appellant implied that the respondent was to sent him the notification that he had been issued the share in the mail by requesting them by the mail, and therefore they will not be penalized for sending the notification that way.

The liquidator was thus successful at recovering the money which Grant appealed. Thesiger and Baggallay agree with the trial judge decision that the contract was formed when the acceptance was mailed or put into the mail box. They decide the pros and cons of the postal rule and decide the pros outweigh the cons. They state that the offeror can always choose to make the acceptance binding upon his receipt of the notification that it has been accepted in the original offer to make himaware.

However, to state that this must happen in all cases will reduce the efficiency in the business world. The contract is complete and absolutely binding upon the transmission of acceptance through the mail as long as there is a medium of communication that the parties contemplated as at the time of mailing there is a meeting of the minds. HENTHORN V FRASER (1892) On 7th July, Henthorn from Brikenhead, called office of land society in Liverpool for buying property. Henthorn negotiated to buy some houses belonging to the land society. The secretary agree to sell to him and give him an option to purchase the property at 750 pounds in 14 days. On 8th July morning, another person called to purchase the property at 760 pounds and the offer accepted which is a better and higher purchase price from Henthorn. At the afternoon 12-1 pm the secretary withdraw the offer made to Henthorn by mail. However, at 3.50pm Henthorn sent a acceptance letter by mail but the letter arrive at 8.30pm after the office was closed.

But, at 5pm the withdrawal offer arrived at Brikenhead. The secretary opened the letter on the next morning. Then Henthorn sued them for specific performance. The held is the specific performance granted, postal rule applies as acceptance occurred before when Henthorn sent the acceptance letter.

Defendant was told to sell the property. Lord Herschell argued ‘where the circumstances are such that it must have been within the contemplation of the parties that according to the ordinary usage of mankind, the post must be used as mean of communicating the acceptance of an offer, the acceptance is complete as soon as it is posted. ENTORRES V MILES FAR EAST (1955) Entorres is a London based trading company that sent an offer of the purchase of copper cathodes by telex from a company based in Armsterdam. Then, the Dutch company send an acceptance by telex. The contract was not fulfilled by the Dutch company and so Entorres attempt to sued the owner of the Dutch company for damages. The controlling company, Miles Far East Corp was based in UK and under English Law. Entorres could only bring the action in UK if it could prove that the contract was formed within the jurisdiction.

Denning LJ delivered the leading of the judgment. He said that the postal rule could not apply to instantaneous telecommunication such as telex, if a phone line went dead before the just before the offeree said yes, it would be absurd to assume that the contract was formed and the parties would not have call each other back. The same applied to telex.

Since the contract was formed when and where the telex is received and the place formation was London. In The telex is like a post in US. It becomes law and is subject to the rule of the country where the acceptance was made. In European Law, the telex contract becomes law where the acceptance was received. To determine where the contract was made, Justice Denning use same principle was those he used to decide when it was made. Applying Denning rule, the contract was made in London and therefore rightly in English jurisdiction. Denning thinks it may be that a contract is made at the place where it was first completed, not at the place where the variations are agreed. But luckily here this is a moot point since both the original contract and the variations where made in England.

Also, this contract is by implication governed by English law because England is the place with which it has the closest connection. Appeal dismissed. BYRNE V VAN TIENHOVEN On October 1st, Van Tienhoven mailed a proposal in a fixed price to sell 1000 tin plates to Byrne. On October 8th, Van Tienhoven wanted to revoked and sent the letter to revoked but it delivered on October 20th. In the interim on October 11th, Byrne received the original offer and accepted by telegram and resold the merchandise to a third party on the 15th. Byrne was then brought the action for non-performance because the acceptance was made. The held is that the judgment for the plaintiff because Lindley held that the revocation is not effective until it had been communicated to Byrne and he aare about it. While the postal rule remain good law, for acceptance, he finds no support for the premise to revokes because the acceptance had put in mail box and the contract is formed As a result, the revocation was not communicated to Byrne until 20th October, at which the point of the contract was already formed and thus the revocation was not effective because Byrne is not communicated about the revocation. To rule otherwise would be impractical for commercial realities. DUNLOP V HIGGINS (1848) On Dunlop & co letter dated 22nd and 28th January, they offered to sell 200 tons of pig iron at 65sh per ton to Higgins & co but Higgins received the offer letter on 28th and 30th January. They replied on the same indicating their acceptance to purchase the pig iron in accordance to the offer from Dunlop & co. Due to problem of weather there was disruption in the train service and the letter of acceptance instead of reaching on 31st January had delayed, reached Dunlop & co. on 1st February. Dunlop & Co. refused to supply pig iron on the ground that the receipt of the letter of acceptance by them had been delayed although because of the frosty weather that affected the train service. It was held that Dunlop & Co. had become bound which the contract is formed when the letter of acceptance had already posted. YATES BUILDING COMPANY LTD V RJ PULLEYN & SONS Pulleyn gave Yates an option to purchase building land which the option read: ‘the option hereby granted shall be exercisable by notice in writing given by or on behalf of Yates to Pulleyn or Pulleyns’ solicitors at any time between April 6 1973 and May 6 1973 such notice to be sent by registered or recorded delivery post to the registered office of Pulleyn or the office of their said solicitors.’ On Monday April 30 1973 Yates’s solicitors posted a letter to Pulleyn’s solicitors to formally exercise the option, they enclosed a cheque for 1890 pounds for the deposit with the acceptance letter.

Although the letter arrive well in time but the letter was sent by ordinary post and not by registered and recorded delivery post. It was open by Pulleyn’s solicitor, on some on or before Friday May 4 1973. On that Friday Pulleyn’s solicitors sent back to Yates and returning the cheque for the deposit and said: ‘we write to acknowledge receipt today of your letter of April 30 1973 with its enclosure. You will recall that clause 2 of the option agreement provides for the notice to be sent by the registered or recorded delivery post. Your letter was not so sent.’ Yates brought to proceedings for specific performance but the judge refused it because he did not followed the requirement of the offer. He held that his requirement that the letter had to be sent by registered or recorded delivery post was a requirement which must be complied with, and as it had not been complied it, there was no contract formed. Yates appealed.

Lord Denning : ‘‘It seems to me that this depends on the construction of the option clause. The option is an offer: an irrevocable offer. When a person makes an offer, he does sometimes prescribe the method by which it is to be accepted. If he prescribes it in terms which are mandatory or obligatory, the acceptance is only good if it complies with the stated requirements. Thus in the present case the notice of acceptance must be in writing, and must be given to Pulleyns or to Pulleyns’ solicitors, and must be given between April 6 1973 and May 6 1973. But the question is whether the words ‘such notice to be sent by registered or recorded delivery post’ are mandatory or directory. That test is used by lawyers in the construction of statutory instruments, but it can also be used in the construction of other documents.

The distinction is this: a mandatory provision must be fulfilled exactly according to the letter, whereas a directory provision is satisfied if it is in substance according to the general intent (see Howard v Bodington). In applying this rule of construction, you must look to the subject-matter, consider the object to be fulfilled, and then see whether the provision must be fulfilled strictly to the letter or whether the substance of it is enough. So in the present case the question is whether the letter of acceptance must be sent by registered or recorded delivery post, else it is bad; or whether it is sufficient if it gets there in time, as, for instance, by ordinary post or by special messenger. Orr LJ gave this instance in the course of the argument.

Suppose there were a postal strike during the last week, and the buyer, to make sure it was in time, sent the letter by special messenger, would this not be sufficient? Looking at the object of this provision, it seems to be this. It is inserted for the benefit of the buyer so that he can be sure of his position. So long as he sends the letter by registered or recorded delivery post, he has clear proof of postage and of the time of posting. But if the buyer sends it by ordinary post, he will have no sufficient proof of posting, or of the time of posting. In that case, if the seller proves that he never received it, or received it too late, the buyer fails. None of those reasons apply, however, when the seller does receive it in time. So long as he gets the letter in time, he should be bound. So I would hold, simply as a matter of interpretation, that if the letter did reach the sellers in time, it was a valid exercise of the option.’’ 4.0 CONCLUSION This assignment addressed on the issue of postal acceptance rule, its creation, definition, limitation and the relevant case law. Postal rule was created on 19th century to solve distance business conflict and continued to be applied into current business situation.

The justification is using postal rule in the age of mailing may be regarded the same as the new communication method email. The amendments in postal rule allow supervisions on online business. This would facilitate the online business communication and benefit both parties. Postal rule had become complete and mature after more 200 years application. I believe that it is valid in modern business world and continue to guide healthy business performance. In my recommendation also, that postal rule is good because it help to get justice when the acceptance or revocation had been taken in an offer for a party. So, postal rule should be always be the guide for business performance which it help a party to aware on the offer they made to the other party and in the other hand the other party also aware on the acceptance they made to the other party. 1

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The Malaysian Airlines MH17 Incident and Relevant Legislation

Executive Summary The accident of Malaysian Airlines MH17 is considered one of the worst in the history of Ukrainian aviation history and more so in the history of aircraft destructions. The death of 280-odd civilians flying from Amsterdam to Kuala Lumpur on 17th July, has been horrific and has shocked the entire world. The crash took place in Ukraine in an area where political instability had been a concern for few months prior to the date of accident.

After the accident, there were serious implications and it has led to political tensions between Russia and Ukraine. The Dutch Safety Board was the body that is the main investigator for the crash and they have brought out a preliminary report on 9 September 2014, which will be discussed in the report. The final report by the same safety board is expected to come in 2015. The major legislations and annexes relating to the accident in respect of the ICAO Convention is mentioned in the report and also the role of non-ICAO agencies. Introduction Malaysian Airline flight MH17 carrying 283 passengers and 15 crew, was flying from Amsterdam to Kuala Lumpur on 17 July 2014 and was presumably shot down killing all passengers and the crew on board. It is considered as one of the worst air disasters in the history of Ukraine, and also the Dutch history owing to the large number of these passengers being Dutch and it was the third air crash of a Boeing 777, a year after the crash that happened on the way to Kuala Lumpur from Amsterdam. The flight crashed near an area in Ukraine over an area where political tensions had been fuming for quite a period. It was reported by the US Intelligence sources that pro-Russian separatists shot down the plane using a surface-to-air missile from the territory which was controlled by them. However, the Ukrainian Government was blamed for the accident by the Russian government. The Dutch Safety Board is the main investigation board for the accident and they issued a preliminary report on 9 September, the details of which will be discussed in this report. Furthermore, this report deals with the issues faced after the downing of the aircraft and brings out the associated Annexes and documents relating to the accident and the role of non-ICAO agencies.

The aftermath of the accident which has caused tensions between Ukraine and Russia reaching new heights has been explained in the report. History of the flight Malaysian Airlines flight Boeing 777-2H6ER with its operating name MH17 was scheduled to fly to Malaysia from Netherlands on 17 July 2014. It departed from Amsterdam Airport in Netherlands at 10.31 hrs. The flight plan for MH17 was filed by the Airlines and it was approved by air traffic control centres in all regions and according to it, MH17 was to fly at an altitude of 33,000 feet (FL 330) above Ukraine until it reached Dnipropetrovsk where it was to change to an altitude of 35,000 feet (FL 340). As it reached Dnipropetrovsk according to plans, at 12.53 hrs, the air control at that area asked MH17 whether it was able to be at the specified altitude of FL 350 and also avoid collision with another Boeing 777 flight flying at FL 330. The crew wanted to remain at FL 330 and the request was agreed to by the air traffic control by pushing the other flight above. At 13.00 hrs, the flight crew requested for a diversion 20 NM to the left because of the weather conditions, and this request was also approved.

The crew were told by the ATC that FL 340 was not available when that was asked for and hence they maintained at FL 330 for a short period. At 13.19 hrs, the ATC data showed that there was a deviation of 3.6 NM north from the centreline of the approved airway and the crew were directed to change the route. The flight was then transferred to the Russian air control in Rostov-on-Don (RND) and they tried to inform the flight crew about the airfield track at RND, but there was no response from them at 13.20 hrs. Seconds after that, the data from digital cockpit voice recorder and flight data recorder stopped and RND confirmed the disappearance of the flight after it couldn’t be located on the radar. Investigation Investigation is currently done by an international group to understand the reasons for the aircraft crash. The lead has been taken by the Netherlands in conjunction with the co-operation of the Ukrainian government.

The international investigation group comprises 24 investigators including member countries like Australia, the UK, the US, Germany, Malaysia, Russia and Ukraine. Additionally, the Dutch Safety Board (DSB) will independently investigate the choice of the flight route. The investigation was delegated to the DSB by the National Bureau of Air Accidents Investigation of Ukraine (NBAII) because of the fact that the majority of passengers in the flight were Dutch and also due to the reason that the flight’s departure was from Amsterdam Airport. The International Civil Aviation Organisation (ICAO) has supported the DSB in procedures that comply with the standards and recommended practices (SARPs) mentioned in Annex 13. Basically, Annex 13 deals with the Aircraft Accident and Incident Investigation – to the Convention of International Civil Aviation, SARPS are explained to conduct the accident investigation in civil aviation. The area where the accident took place about 500km from Kiev, has been constantly under the radar and monitoring of all NOTAMs and pilots were warned of the risks flying in the region. The UK NOTAM issued several warnings to their pilots such as the possibility of dangerous situations in Ukraine airspace, especially in the regions of the Black Sea, Crimea, and the Sea of Azov.

They warned the UK aircraft operators that Russian and Ukrainian authorities could potentially provide conflicting instructions with respect to air traffic control and that it would be advisable to be avoiding the areas until further notice. As far as Ukraine was concerned, a unilateral course of action covering both International High Seas airspace and its own sovereign airspace, contradicted the ICAO Annex 11 standards. It continued to provide Air Traffic Services (ATS) in the designated airspace and Russia also provided ATS in the same airspace. Hence, Ukraine NOTAM issued messages and prohibited the area over the Crimean peninsula for operations below FL290 and closed various routes, and Russian NOTAM directly conflicted with them. In effect, confusions and conflicting attitudes by sending the ATC instructions, had occurred in the particular airspace. In accordance with paragraph 7.1 of ICAO Annex 13, a preliminary report was presented by the Safety Board on 9 September. This preliminary report provides an overview of the initial, provisional facts. The report has been sent to ICAO for consideration. ICAO president Aliu remarked that ICAO is encouraged to see that the MH17 investigation is proceeding with the productive collaboration of accredited international representatives.

Investigations into the circumstances of the accident will be co-ordinated by Netherlands and they will be in charge for the conduct of the investigation in accordance with the laws of Chapter 5 of Annex 13 to the Chicago Convention. The Netherlands will ensure the participation of other parties concerned, in particular Ukraine as the State of Occurrence, Malaysia as the State of Registry, the United States of America as State of Manufacture and the International Civil Aviation Organization (ICAO). The Netherlands will communicate the report and findings to the concerned states. Ukraine will use every means available to facilitate the investigation The paragraph 7.1 of Annex 13 also states the need for the State doing the investigation to send the preliminary to the other main parties that are involved such as the State where the airline operator is from, the State where the aircraft is registered, or the State where design and manufacturing of the aircraft were made. Annex 13 mentions that the States of operator, registry, design and manufacture all have the right to appoint an Accredited Representative to the investigation. All the facets of the investigation shall be participated in by the Accredited Representative with assistance from their investigators or advisers. The Accredited Representatives of the Sates that participate in the MH17 are Australia, the United States of America, the United Kingdom, Malaysia, the Russian Federation and Ukraine and the preliminary report was submitted to these investigators for review.

The suggestions of all the representatives were assessed by the Dutch Safety Board and appropriate amendments were made to the report. In Article 1 of the Chicago Convention, it is defined that the States are sovereign in the airspace over their territory and article 28 obliges them to provide air navigation facilities to account for air navigation at the international level. Article 9 of the Convention describes the airspace over a country which can be made “controlled” or “restricted” or “prohibited”. With respect to Ukraine, there were restrictions placed on its territorial airspace in order to satisfy conditions of the military and to safeguard the safety of the public, which required civil aircraft to fly above the three dimensional airspace area.

Malaysian Airlines has not changed their view that they flew lawfully above the airspace restricted by Ukraine. It could still be argued that the flight was inside the restricted area or above the that was reasonable or not but the main discussion is that the dangers of flying within or anywhere near that zone was still known in advance and MH17 should have been more proactive in dealing with such warnings. Currently, airlines’ decision to fly rests with themselves after receiving risk assessments owing to loopholes in the international laws and agreements. Recently, airline regulators under ICAO have called for taking control of the informing airlines about the potential warnings about dangerous airspace but this is highly unlikely to happen in the near future given the inadequacies of the law permits under the Chicago Convention. According to the paragraph 3.1 of ICAO Annex 13, “The sole objective of the investigation of an accident or incident shall be the prevention of accidents and incidents. It is not the purpose of this activity to apportion blame or liability”. The preliminary reports released by the DSB only describe the factual details of the accident and it does not analyse the larger picture that explains the contributing causes. An accident reporting database system is maintained by ICAO known as Accident/Incident Reporting or “ADREP” system through which details analysed from investigations conducted and those which are of absolute importance to prevent accidents in the future, are shared among the worldwide Contracting States. The European Union “ECCAIRS” (the European Co-ordination Centre for Aviation Incident Reporting System) designed the program platform that is used in ADREP system. As per the SARPs, in the case of criminal activities, the inferences from a technical investigation report is not deemed to be used. It is required that an independent judicial investigation be held by the competent prosecution and police and it is possible that this could prove to be an important factor during trials where the investigations by the board could lead to an expert witness at the hearing in the court.

The European Counsel proposed EU Directive 94/56 through which it is required for all member states to form an independent accident investigation board so that the board is not partial and so not to compromise on the findings of the board. This was done so as to eradicate any chance of conflicting interests that may occur when a government body is the investigation board. Article 26 of the Chicago Convention puts Ukraine with the responsibility to conduct the crash investigation .Paragraph 5.1 of Annex 13 states the rule for the State where the accident occurs, to be responsible for conducting the investigation of the accident but it also mentions that either a part or the entire investigation to be conducted may be delegated to another State through mutual co-operation and agreement. Ukraine, being the State of Occurrence, was actually required to be taking responsibility for the accident investigation, but it filed a written petition to the ICAO requesting them to delegate the responsibility to the DSB and a team of technical advisers and accredited representatives under them. This agreement took place on 23 July 2014. The international team consisted of representatives of the State where the accident occurred (Ukraine), State where the aircraft design and manufacture took place (the United States of America), the State of Registry and Operator (Malaysia), State where the engine design and manufacture was done (the United Kingdom), State that provided information on request (Australia, Russia) and the ICAO. AFTERMATH OF MH17 The Ukrainian government’s attitude of not seriously following the obligations of the Chicago Convention and the ICAO regulation DOC 9554/932, led to the MH17 crash. Article 3bis of the Convention states that the signatories “refrain from resorting to the use of weapons against civil aircraft in flight” as this kind of behaviour deviates from the required norms and standards that regulate cross country interactions. As a result, no country has the right to use ongoing military confrontation on its territory to attack any civil or commercial aircraft. In addition to this, ICAO in its Safety Measures manual, defines “the responsibility for initiating the co-ordination process rests with the States whose military forces are engaged in the conflict,” in accordance with paragraph 10.2 of the respective international agreement.

Hence the safe journey of the MH17 flight could have been achieved if it was co-ordinated properly as per the manual. FINDINGS FROM THE REPORT There were no controversies regarding the choice of flight level and the flight plan description set to be used by the corresponding ATC authorities for MH17 and this was confirmed from aeronautical sources that the aircraft was flying in an unrestricted area outside the restricted airspace mentioned by the Ukrainian NOTAMs. The report also indicated that there was no question of the qualifications and experience of the flight crew as they had proper licensing and medical certifications to operate the flight. The airworthiness requirement of the aircraft had also been through a maintenance overhaul in 2013 and an inspection in the following year, so that was also discarded as a cause of the accident. As per the report, there was no evidence of cockpit voice and flight data recorders being manipulated or any malfunctioning of these found by the DSB. Furthermore, there were no engine issues and the last known altitude, flight path and the cruise settings of the engine were understood to have progressed without any problems. The main cause of the accident was found to be objects of high energy impacting and penetrating the aircraft. Aftermath of the accident The United States said that the plane was brought down by a ground-to-ait missile fired by the rebels armed by Russia. Russian President Vladimir Putin blamed the Ukrainian Government for the loss of the innocent civilians. He was of the view that the political tensions in Ukraine had been the major cause of this tragedy.

This accusation led to both Putin and Sergei Lavrov, who is the foreign minister for Russia, to put steps forward for a thorough international investigation. At the present situation, it appears that the plane was shot down by a missile fired by a system designated “Buk” in the Soviet Union which are now co-owned by Ukraine and Russia. Ukrainian armed forces is bearing the brunt of the Russian defence ministry because they believe that the Buk systems were used in parts of Donbass controlled by Kiev. Tensions have soared high between Russia and Ukraine after that with the prediction of Russian experts that Ukraine possibly prepared to gun down a Russian aircraft if war occurs. Role of non-ICAO agencies Ukrainian State Air Traffic Service Enterprise (UkSATSE) issued NOTAMs adding a restricted area over the current one from FL320 to an unlimited altitude on 17 July 2014. On the next day, it issued another NOTAM to increase the restricted area size and also put a limit from the surface to an unlimited altitude. A meeting was arranged on 29 July 2014 and ICAO along with Civil Air Navigation Services Organisation (CANSO), Airports Council International (ACI) and International Air Transport Association and the outcomes were discussed with regard to risks associated with civil aviation due to various conflict zones and that ICAO along with its partners decided to:

set up a task force at the senior-level comprising industry and state experts in order to resolve the issues relating to national security and civil aviation in general and also gather and disseminate information in an effective way.
submit the findings of the task force immediately to a special meeting of the ICAO Council for action.

A high level conference along with all 191 member states of ICAO will be convened by ICAO in February 2015. IATA has asked ICAO to address two main tasks. Firstly, it is required to ensure that necessary and relevant information be provided to the airlines by the government in order to assess the risks posed by various threats in an efficient way. It is absolutely important to pass accurate data or information as the risks associated with this is time-critical. One such example of information that was not provided properly was that flights going above Ukraine’s airspace above 32,000 feet would not create problems.

This guidance proved to be wrong and so threats to aircraft, crew and passengers need to be minimised by the State by passing consistent and accurate information to the airlines. Secondly, it is required to control the design, manufacture and usage of anti-aircraft weapons. These powerful weapons are in the hands of non-State entities and international convention or law does not account for such form of ammunitions and MH17 brings out the limitations in the international system that must be rectified. Conclusion The MH17 accident was the worst incident in the history of Ukraine with a large number of passengers killed. It has posed serious questions on the future of the airlines especially because it happened just few months past the disappearance of the other MH370 flight. The initial part of the report focussed on how the crash occurred and detailed information about the timeline of the entire crash episode was provided. The various inferences and conclusions derived from the investigations carried out by the Dutch Safety Board were then analysed. The findings from the preliminary report were explained and the various circumstances that lead to the accident and its aftermath, in respect of the ICAO Convention and all the legislations covering the accident such as Annexes and Articles of the Chicago Convention were explained in detail.

The role of non-ICAO agencies is also important in disseminating quality information after risk assessment so that accidents could be prevented in the future.

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The Notion of Religious Establishment and Modern Democracy

From a modern perspective religion undoubtedly has been on the decline in the UK, however as the UK is one of the most pluralistic societies in Europe it would be inappropriate to rule out the importance of religion completely. Religion has become an increasingly important topic within government, illustrated by the enactment of specific legislation such as Human Rights Act 1998 and Racial and Religious Hatred Act 2006[1]. Despite the practice and promotion of several faiths in the UK, Morris argues that “The United Kingdom remains locked constitutionally so far as religion is concerned.”[2] It is suggested that the existence of the established Church of England (COE) contributes hugely to this due to its anachronistic representation in a modern society. This essay will explore whether the notion of establishment is compatible within a modern democracy and other systems in Europe will also be given brief consideration to demonstrate how disestablishment of the COE should not be sought immediately and how our current system provides more benefit than harm. Defining Establishment According to Ogilive, “an established Church is that single Church within a country accepted and recognized by the State as the truest expression of the Christian faith.”[3] Lord Rogers provided an English perspective on establishment by acknowledging that although the COE has “certain important links”[4] with the State, the aims and objectives of the COE differ from those of the State as they have a “religious mission.”[5] Establishment is generally defined by inspecting the relationship between public bodies and religious authorities. It has also been classified into high and low[6], with the former focusing on the Monarch’s role as Supreme Governor of the COE in addition to the presence of Bishops in the House of Lords (HL). In comparison, the latter focuses on the influence of the COE in the ordinary lives of citizens in areas such as prisons or education. Incidents of Establishment The Act of Supremacy[7] affirmed the monarchs position as the only Supreme Head of the COE which was later renamed to Supreme Governor of the COE . The monarch’s position with regard to the COE was further enhanced by the Coronation Oath Act[8] which provides a duty “to maintain the true profession of the gospel and the protestant religion.” Whilst this preserves the symbolic status of the COE, it also calls into the question the legitimacy of such statutes in a diverse society. Further controversy relates to the Act of Settlement[9] which deliberately rules out the possibility of a Catholic monarch and for many today, the existence of such principles is “shocking to modern eyes.”[10] The underlying purpose of the act was to ensure Protestant succession to the throne and to place limitations on instances where the monarch could marry a person of the Roman Catholic faith. Some commentators argue that the existence of such anti-catholic provisions is not acceptable in contemporary society as it implies that the monarchy is dependent upon anti-catholic beliefs[11]. An example of a royal family member who was not eligible to the line of succession due to marriage with a Roman Catholic is The Earl of St. Andrews.[12] The Act of Settlement sits at unease with the existence of statutes such as the HRA 1998[13] which aim to eliminate discrimination. The act only excludes the possibility of marrying a Roman Catholic which means other faiths are not included in the restrictions however this simply makes the exclusion even more specific and controversial. The coronation ceremony is a symbolic element of bestowing upon the monarch their authority however the event is centralised around Christian principles. Critics argue that this symbolic ceremony should adopt an inclusive rather than exclusive approach. The Fabian Commission[14] also supported this concern as it reported that “a specifically Anglican coronation service is no longer appropriate.” The commission also reported that the focus of the ceremony should be on the “democratic authority conferred on the monarch as Head of State”[15] and due to this, the coronation would be viewed as a “multi-faith service and be secular.”[16] A pluralistic society demands respect for all religious denominations however when the supreme position of the country is discriminatory itself, this calls into question the democratic principles of such a state as religious freedom cannot be an underlying privilege. The example of Tony Blair’s late declaration of the Catholic faith illustrates this point and shows the anxiety surrounding this whole debate. The passage of the Succession to the Crown Act 2013 removed the disqualification provision after marriage to a Roman Catholic and also removed the prohibition on the monarch being married to a Roman Catholic which indicates positive steps towards removing discrimination. Even so, it is claimed that the underlying discriminatory provision of preventing the monarch from belonging to the Roman Catholic faith remains, thus Protestant domination which existed in 1700 still remains today. Therefore, whilst religious freedom undoubtedly exists, religious equality does not because of establishment of the COE.[17] This position was clarified by the Monarch in 2012 where she said “the Church has a duty to protect the free practice of all faiths in this country”[18] however with the current existence of discriminatory provisions and with an increase in the practice of non-Christian religions, the notion of “protecting all faiths” seems a distinct reality. There is huge anticipation surrounding the next possible monarch over whether establishment would still remain especially as he expressed his desire to be “Defender of Faith”[19] rather than “Defender of the Faith” which represents a more inclusive and compatible approach to modern society. The Appointment of Bishops Act 1534 provides for the bishops to sit in the HL’s through the nomination by the monarch. Since 2007 the Prime Minister no longer plays an active role in the selection of individual candidates[20] and as the role was transferred to the Crown. The presence of bishops in the HL is unique as it is the only national legislature with such religious representation[21] with the number limited to 26 in the Bishop of Manchester Act[22]. Although establishment justifies the presence of bishops in the HL critics argue that this gives preference to the Christian faith and thus their presence is not beneficial for other religious denominations. This problem was acknowledged by both parliament and the government and after the 1997 elections the issue of wider religious representation has been considered as part of Lords reform.[23] The Royal Commission on the reform of the HL highlighted how having representation from only one faith was unfair and the Wakeham Commission also stressed how there was “no direct or logical connection between the establishment of the Church of England and the presence of COE bishops in the Second Chamber.”[24] The Wakeham Commission also proposed a reduction in the number of bishops from 26 to 16.[25] The COE itself endorsed a move towards wider representation as part of plans for a new reformed HL and it also said that it was “willing to speak in Parliament for its Christian partners and for the people of other faiths and none”.[26] Despite the best efforts of the Commission to broaden representation, the government claimed that the practical obstacles would be too great and not all faiths have a hierarchical structure which allows the identification of religious representatives.[27] These concerns were also supported by a constitution unit which highlighted the practicalities and difficulties of reaching an agreement that would satisfy all religious groups.[28] The privileged position of bishops in the HL has been a huge concern for many years however the favourable position does not diminish the value of other faith groups. Anna Harlow[29] conducted a questionnaire with regard to the role of the bishops and more than half felt that their position allowed them to represent faiths generally and not just the COE. The bishops also commented on how they have frequent contact with other religious groups on both religious and national matters.[30] This positive approach towards establishment has also been supported by religious representatives with Tariq Modood[31] amongst others who argued that “as long as the COE can preside over the multifaith situation with sensitivity, tolerance, respect and non-interference, there should be no resentment of its special relationship with the British state.”[32] Bishop Micheal Nazir-Ali also supports the current structure by arguing that the COE retains a special place in society and allows “voiceless people to be heard.”[33] History has provided the COE with guaranteed institutional representation[34] in the HL however these anachronistic privileges play a useful part in modern democracy. Having religious representation in the HOL is beneficial to all faith groups and ensures religion retains a special place in modern society and after 2007 with the PM less active in the appointment of bishops, it promotes the autonomous nature of the COE. Proposals for a wholly elected HL therefore should not be supported as it would disregard the importance of bishops in the HL and there would undoubtedly be no room for bishops to sit in the HL under a wholly elected chamber. The established position of the COE also impacts upon the ordinary lives of citizens in areas such as education and prisons which is commonly referred to as low establishment. The Education Act 1996 states that a Standing Advisory Committee on Religious Education must decide the content of religious education and the COE has a reserved position in the committee. Even though this provides a privileged seat for the COE it does not diminish the importance of “other religions represented in Great Britain.”[35] This favourable position for the COE is a sign of establishment[36] and also provides full religious coverage regardless of the number professing the Anglican faith. Nevertheless, the mandatory coverage of the COE should be maintained as a religious aspect to education provides a sense of identification for many members of modern society who are religious. The Prison Act 1952[37] holds that every prison must have a chaplain irrespective of the number of prisoners who profess the Anglican faith. This further indicates the effects of establishment of the COE however it is important to note that the chaplain has a duty towards all inmates.[38] These two examples of low establishment demonstrate the privileged position of the COE as a result of establishment however they by no means belittle other faiths and a positive approach towards other faiths is demanded which is compatible with a modern democracy. Scottish Model The relationship of the COS with the state is regulated by the Church of Scotland Act 1921 and the act supplemented with the Articles Declaratory provides freedom to the church in its mission.[39] Article IV is the most important as it provides for the independence of the church including the right to be involved in “all questions concerning membership and office in the church.”[40] Scotland enjoys what is regarded as “light establishment”[41] and the position differs from that in England. The monarch is not the Supreme Governor of the COS however they must commit to preserving the church and the Presbyterian government. Unlike the English position, royal assent is not required for legislation and COS members are void of the right to sit in the Lords. A further indication of the separation of church and state is the distinction of matters spiritual however the relevant case of Percy[42] which concerned sex discrimination and acknowledged the right of the church to deal with such matters, held that contracts between a church and its ministers can have effect in law, casting doubt on what constitutes matters spiritual.[43] The Scottish position seems to promote autonomy and freedom of the church and many view this model as “an example to be emulated.”[44] In addition to this Hastings also praised the Scottish establishment model by saying it is “a system in which religion is accepted as not being subject to State authority but bearer of a kind of independent sovereignty which merits public recognition.”[45] State Church systems in other EU States It is also worth considering how establishment operates in member states across Europe. A comparative approach will be taken in relation to the systems in both Denmark and Greece. The Danish system encompasses a high degree of state involvement in the Church, with the Danish constitution stating that the church “is to be supported by the state in its economic, legal and political relations.”[46] The Danish church has a relatively low level of autonomy, with church regulation in the hands of the Ministry of Ecclesiastical Affairs due to the inexistence of an internal synod with legislative capabilities. Their functions include approving the appointment of clergy, which is reflective of the COE position until 2007 which saw less involvement from the PM. In comparison, the position of Greece is more liberal and state control is minimal. The Greek constitution states that “the orthodox church is autocephalous” [47] providing for its autonomous nature and the Holy Synod enjoys legislative functions as it can create canon law which differs from the position in Denmark. One similarity exists between the Greek and English model in that state authorisation is required for appointments and nominations to the church. This analysis highlights the differences between state models, but more importantly emphasises how the UK is not the only state in modern times with a highly established system. By comparing two distinct models like Denmark and Greece, it shows the usefulness of our present system and how gradually our present system can be improved through observing other states rather than seeking immediate disestablishment. Conclusion A British Social Attitudes survey demonstrated that in a time period of 25 years, those prepared to say that they had no religion rose from 31% to 41% and that 50% of respondents claimed that they were Christian[48] therefore the question needs to be asked whether the establishment of the COE is compatible with a modern democracy. The privileged position of one faith in the Lords is offensive as it implies that only those people are qualified to carry out those functions.[49] However, representatives of minority faiths have supported the current system and it is argued that at least some members of religious minorities would feel more isolated and detached in a disestablished state than under the present one.[50] The monarch’s position with regard to the COE is based on anachronistic principles and is not reflective of modern society however the position of bishops in the Lords differs as they perform important representative functions and uphold the importance of religion especially during times when religion itself is declining. An established COE is compatible within a pluralistic society and is more importantly supported by Article 9 of the ECHR[51] , where case law has provided authority that there is no religious discrimination provided the state does not compel such practices upon its citizens. Although the current system has its flaws like every other system, a process of gradual change is more appropriate rather than seeking a radical solution such as disestablishment and there are alternative models, such as the Scottish model, present in modern times that can provide a platform to bring about change. Bibliography: Books

Russell Sandberg, Law and Religion (Cambridge University Press, New York 2011)
Fabian Society, The Future of the Monarchy (Fabian Society, London, 2003)
Tariq Modood, Church, State and Religious Minorities (Policies Studies Institute, London 1997)
The Constitution Unit, University College London, Comparative Study of Second Chambers (London: University College, 2002)

Cases

Aston Cantlow v. Wallbank [2004] 1 AC 456
Percy v Church of Scotland Board of National Mission (2005) UKHL 73

Journal Articles

Brazier, R. ‘Legislating about the Monarchy’ (2007) Cambridge Law Journal, 86
Cranmer,F. Doe, N. and Harlow, A. ‘Bishops in the House of Lords: A Critical Analysis’ (2008) PL, 490
McClean, D. ‘The Changing Legal Framework of Establishment’ (2004) Ecc. L.J. 292
Modood, T. “Establishment, Multiculturalism and British Citizenship” (1994) 65 The Political Quarterly 53
Morris, B. ‘Succession to the crown bill: possible untoward effects’ (2013) Ecc. L.J. , 189
Morris, B. ‘The Future of “High” Establishment’ (2011) Ecclesiastical Law Journal, 260
Munro, C. ‘Does Scotland have an established Church?’ 1997 4 Ecc LJ 644
Oliva, J. ‘The Legal Protection of Believers and Beliefs in the United Kingdom’ (2007) 40 Ecc. L.J. 66
Oliva, J. “Church, State and Establishment in the UK in the 21st Century: Anachronism or Idiosyncrasy?” (2010) Public Law, 482
Ogilvie M.H, ‘What is a Church by Law established?’ (1990) 28 Osgoode Hall L.J. 179
R M Morris, Church and State in 21st Century Britain, (Palgrave Macmillan Publishing 2009) 45

Legislation

Act of Supremacy 1559
Act of Settlement 1700
Appointment of Bishops Act 1534
Bishop of Manchester Act 1847
Coronation Oath Act 1688
Education Act 1996
European Convention on Human Rights
Human Rights Act 1998
The Danish Constitution 1849
The Prison Act 1952

Websites

<https://www.royal.gov.uk/HistoryoftheMonarchy/KingsandQueensoftheUnitedKingdom/TheStuarts/MaryIIWilliamIIIandTheActofSettlement/TheActofSettlement.aspx> accessed 11 March 2014

[1] Oliva, J. ‘The Legal Protection of Believers and Beliefs in the United Kingdom’ (2007) 40 Ecc. L.J. 66 [2]Oliva, J. “Church, State and Establishment in the UK in the 21st Century: Anachronism or Idiosyncrasy?” (2010) Public Law, 482 [3] Ogilvie M.H, ‘What is a Church by Law established?’ (1990) 28 Osgoode Hall L.J. 179 [4] Aston Cantlow v. Wallbank [2004] 1 AC 456 [5] Oliva (n 2) [6] Oliva, J (n 2) [7] Act of Supremacy 1559 [8] Coronation Oath Act 1688 [9] Act of Settlement 1700 [10] Leigh, I. ‘By law established? The Crown, Constitutional Reform and the Church of England’ (2004) P.L. 269 [11]Oliva (n 2) [12]<https://www.royal.gov.uk/HistoryoftheMonarchy/KingsandQueensoftheUnitedKingdom/TheStuarts/MaryIIWilliamIIIandTheActofSettlement/TheActofSettlement.aspx> accessed 11 March 2014 [13] Human Rights Act 1998 [14] Fabian Society, The Future of the Monarchy (Fabian Society, London, 2003) [15] Fabian Society (n 14) [16] Fabian Society (n 14) [17] Morris, B. ‘ Succession to the crown bill: possible untoward effects’ (2013) Ecc. L.J. , 189 [18] Morris (n 17) [19] Oliva (n 2) [20] Green Paper on the Governance of Britain published on July 3 2007 declared that the PM should not play an active role in selecting candidates [21] R M Morris, Church and State in 21st Century Britain, (Palgrave Macmillan Publishing 2009) 45 [22] Bishop of Manchester Act 1847 [23] Cranmer,F. Doe, N. and Harlow, A. ‘Bishops in the House of Lords: A Critical Analysis’ (2008) PL, 490 [24] Harlow (n 23) [25] The Wakeham Commission also proposed that 5 out of the 10 remaining seats be awarded to members of non-Christian communities [26] Harlow (n 23) [27] Oliva (n 2) [28] The Constitution Unit, University College London, Comparative Study of Second Chambers (London: University College, 2002) 35 [29] Harlow (n 23) [30] Harlow (n 23) [31] Modood, T. “Introduction: Establishment, Reform and Multiculturalism”, in Modood (ed.),Church, State and Religious Minorities, 1997 (p13) [32] Oliva (n 2) [33] Oliva (n 2) [34] Harlow (n 23) [35] Education Act 1996 s.375(3) [36] Oliva (n 2) [37] The Prison Act 1952 s.7(1) [38] Oliva (n 2) [39] McClean, D. ‘The Changing Legal Framework of Establishment’ (2004) Ecc. L.J. 292 [40] McClean (n 39) [41] R Sandberg, Law and Religion, Cambridge University Press 2011 (70) [42] Percy v Church of Scotland Board of National Mission (2005) UKHL 73 [43] Oliva (n 2) [44] Munro, C. ‘Does Scotland have an established Church?’ 1997 4 Ecc LJ 644 [45] McClean (n 39) [46] The Danish Constitution 1849,1953 (Art.4) [47] J.Oliva- Lecture Handout [48] Morris, B. ‘The Future of “High” Establishment’ (2011) Ecclesiastical Law Journal, 260 [49] Brazier, R. ‘Legislating about the Monarchy’ (2007) Cambridge Law Journal, 86 [50] Modood, T. “Establishment, Multiculturalism and British Citizenship” (1994) 65 The Political Quarterly 53 [51] European Convention on Human Rights (Art 9) “Freedom of Thought, Conscience and Religion”

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The Mental Capacity Act 2005 and Constent (Advice Style Answer)

Question 1 In this question, there are two main issues to be considered. Firstly, whether Gwen has the capacity to give consent to sterilisation and secondly, whether Gwen has the capacity to refuse to go to hospital for the kidney tests. The Sterilisation The fundamental issue for Gwen is whether she has capacity to consent to receive sterilisation. The definition of capacity can be found in s.2(1) of the Mental Capacity Act 2005 (hereinafter referred to as ‘MCA 2005’) that ‘a person lacks capacity in relation to matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain’[1]. This provision reflects the point that the MCA 2005 uses an issue-specific definition of capacity. In our question, Gwen is stated as having a moderate learning disabilities.

Under para 4.12 of the MCA 2005 Code of Practice[2], a significant learning disabilities is treated as a condition which might involve an impairment or disturbance of the functioning of the brain. But it is arguably that Gwen’s leaning disability is merely assessed as moderate, so she probably has the capacity required to consent to medical treatment. Therefore, the question as to whether Gwen has the required capacity is to be determined in the light of s.3(1) MCA2005[3]. This section sets out that a person is labelled as lacking capacity if he is unable to understand the information; retain that information; use or weigh that information as part of the process of making the decision, or to communicate his decision. This test was derived from the leading case of Re C[4], where held that the patient had the capacity to refuse treatment on the basis that he was able to understand and retain relevant treatment. Applying this to our facts, we are told that Gwen’s behaviour has improved she has been at Greendale, can this be the basis that she may have the ability to understand the nature of sterilisation? Besides this, one important point that should never been left out on our facts is that Gwen has fear of anything to do with doctors, hospitals and medicines. Will this fear affects her capacity to make decision? In Re MB (Caesarean Section)[5], it was held that the needle phobia caused the patient suffering an impairment of her mental functioning and this made her temporarily incompetent to make decision.

But it is unlikely to be applied here because the crucial point in the case of Re MB (Caesarean Section)

[6] was that the patient needed the treatment so much in order to save her life and that of the baby. While on our facts, the sterilisation suggested is for non-therapeutic reason and thus it is difficult to argue that the Gwen’s fear makes her incompetence. Hence, the answer as to whether Gwen has the capacity to decide is not obvious. On one hand, in the case of A Local Authority v Mrs A and Mr A[7], Bodey J was on the view that it is not necessary to show that the individual understood the broader issues surrounding pregnancy and the realities in bringing up a child in accessing her capacity to give consent on contraception, merely the understanding on proximate issue relating to contraception is sufficient to justify that capacity.

Thus, it can be suggested that Gwen seems to have that as she has developed a friendship with a male resident in Greendale and it is reasonable to say that she may acquire the knowledge in relation to sexual intercourse and also the understanding on sterilisation. Whilst on the other hand, it might also be argued that the approach taken by Bodey J

[8] is unrealistic. This was put forward by Keywood

[9] in her article that it looks illogical to say that a decision made without real understanding on the broader consequences of the particular medical treatment can be regarded as an autonomous decision. It is submitted that the law regarding this area remains unclear and it is difficult to see how the court will decide whether or not Gwen has capacity to refuse the sterlisation. At this point, s.1(2) MCA 2005[10] may play a crucial role as it stresses that a person should be presumed as competence, unless the medical profession can prove otherwise. Since we are unsure as to whether or not Gwen has capacity to decide on the sterilisation, we shall assume that she has. In accordance with the principle laid down in S v St George’s NHS Trust[11], if Gwen has capacity, she has the absolute right to decide whether or not to receive the sterilisation. This means that she cannot be forced to receive the treatment if she does not consent on it, irrespective of the facts that it may be an unwise decision (s.1(4) MCA 2005[12]). If however, Gwen may be regarded as lacking capacity due to her fear and thus, by virtue of s.1(5) of MCA 2005[13], the sterilisation can be carried out if it is in her best interest. So the next question is whether the sterilisation is at Gwen’s best interest? s.4 of MCA 2005[14] sets out a number of factors to be taken into account in determining whether the proposed medical treatment is for the patient’s best interest.

Nonetheless, in accordance with para 8.22 of Code of Practice[15], in ascertaining whether a sterilisation is in a patient’s best interest under s.4, the court should follow the approach they have developed in the earlier cases. In Re F (A Mental Patient: Sterilisation)[16], it was held that the ‘best interest’ test is not to be assessed as same as the Bolam test[17]. It was not be sufficient to show that there was a respectable medical opinion in support of sterilisation, but the court must, as affirmed in Re MM (An Adult)[18], also take into account the broader ethical, social, moral and emotional considerations. However, it must be noted that, according to Re B[19], the interests of the cares are not to be taken into account but their views may be persuasive in informing the court what is for the patient’s best interest. Applying this to our facts, the court may take into account the view of the support workers and that of Gwen’s father, but still the final decision is on the court. One case that must be look into together with our facts is the case of Re A (Male Sterilisation)[20]. In this case, A was a 28 years old man who had Down Syndrome. His mother who has now unable to take care of him applied to the High Court for a declaration that the sterilisation operation was at A’s best interest and could be legally acted on him. Thorpe LJ adopted a ‘balance sheet approach’ and it was held that the sterilisation is not in A’s best interest because there being no danger of pregnancy for him.

However, since Gwen is a woman and there might be a risk for her to get pregnant by involving in unprotected sexual intercourse, it is likely that the case of Re A can be distinguished from our facts. Further, in Re B[21], Lord Oliver suggested that sterilisation will only be approved if it is a ‘last resort’. A common ground for wanting sterilisation is that there is a worry that the incapacitated person will become pregnant and be unable to deal with the pregnancy or look after the child. But in Re LC[22], the court held that the patient’s carers took care of her very well and it was very unlikely she would become pregnant. Thus, it is unlikely that sterilisation is the last resort for Gwen. Arguably, since Gwen is now under supervisions and the support workers realised the risk that she may get pregnant, they will be more cautious on this issue and hence, it is unlikely that she will get pregnant.

Therefore, by following this reasoning, the court may not grant a permission of sterilisation and it cannot be performed on Gwen as it is not considered in her best interest. The Kidney Test The next issue is whether Gwen has the capacity to refuse to go to the hospital for the kidney test. First of all, we will need to determine whether Gwen has fulfilled the requirement set out in s.2[23] and s.3[24] of the MCA 2005 for competency. As mentioned, MCA 2005 introduces issue-specific definition of capacity, this was shown in the leading case of Gillick v West Norfolk and Wishbech AHA[25], where the court was on the view that a patient may be found to have sufficient understanding to be able to consent to a simple course of treatment, but not have sufficient understanding to be able to consent to a complex medical procedure. Further, in Re T[26], Lord Donaldson suggested that ‘the more serious the decision, the greater the capacity required’. In the other words, even if the court decides that Gwen has the capacity to decide on the issue of sterilisation, this does not mean that she is competence enough to refuse the kidney test as her life is now depending on the treatment. By following the judgment is Re MB[27], it is arguably that Gwen’s fear to doctors, hospitals and medicines nominated her mental ability to understand, weigh and retain the information as regards to the proposed kidney test, she is now temporarily incompetence and thus her refusal is invalid and the doctors must send her to the hospital which is clearly an action at her best interest at that moment. But on the other hand, it can be pointed out from our facts that Gwen did allow the doctor to examine her, does this mean that her fear to doctors, hospitals and medicines is not that severe to nominate her capacity to make decision? Again, there is no clear-cut answer. If Gwen is regarded as having capacity to refuse to go to hospital for kidney test, then she cannot be forced to do so even if her life is depending on it, by virtue of the principle laid down in s.1(4) of MCA 2005[28]. This was emphasised in the case of Re MB[29] where the court held that even if the patient’s life and that of her child are depend on the medical treatment, the treatment taken against her wishes would still be regarded as an unlawful infringement to her autonomy. (1992 words) Bibliography Books Herring J, Medical Law and Ethics (4th edn OUP, Oxford 2012) Jackson E, Medical Law, Text Cases and Materials (3rd edn OUP, Oxford 2013) Articles Keywood K, ‘Safeguarding Reproductive Health? The Inherent Jurisdiction, Contraception, and Mental Incapacity’ (2011) 19 MLR 326-333 Electronic Sources Buchanan A, ‘Mental Capacity, legal competence and consent to treatment’ https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1079581/ accessed 12 November 2014 Bunting A.P, ‘Guiding Principles in Medical Law: The Ability to Treat’ https://etheses.bham.ac.uk/968/1/Bunting05LLM.pdf accessed on 13 November 2014 –, ‘The Book of “Medical Law and Research” On-Line’ https://www.medreslaw.com/capacity.php accessed 13 November 2014 Tables of Statutes and Cases Table of Statutes Department of Constitutional Affairs, MCA 2005 Code of Practice (2007: para 4.12). Department of Constitutional Affairs, MCA 2005 Code of Practice (2007: para 8.22). Mental Capacity Act 2005, s.1 Mental Capacity Act 2005, s.2 Mental Capacity Act 2005, s.3 Mental Capacity Act 2005, s.4 Table of Cases A Local Authority v Mrs A and Mr A [2010] EWHC 1549 (Fam) Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 Re A (Male Sterilisation) [2000] 1 FCR 193 Re B (A Minor) (Wardship: Sterilisation) [1987] 2 All ER 206 Re C (Adults: Refusal of Treatment) [2004] 1 WLR 290 Re F (A Mental Patient: Sterilisation) [1990] 2 AC 1 Re LC (Medical Treatment: Sterilisation) [1997] 2 FLR 258 Re MB (Caesarean Section) [1997] 2 FLR 426 Re MM (An Adult) [2007] EWHC 2003 (Fam) Re T (Adult: Refusal of Treatment) [1993] 2 All ER 649 St George’s Healthcare NHS Trust v S [1998] 3 All ER 673

[1] Mental Capacity Act 2005, s.2(1).

[2] Department of Constitutional Affairs, MCA 2005 Code of Practice (2007: para 4.12).

[3] Mental Capacity Act 2005, s.3(1).

[4] Re C (Adults: Refusal of Treatment) [2004] 1 WLR 290.

29] Re MB (Caesarean Section) [1997] 2 FLR 426.

[8] Ibid.

[7] A Local Authority v Mrs A and Mr A [2010] EWHC 1549 (Fam).

[8] Ibid.

[9] K Keywood, ‘Safeguarding Reproductive Health? The Inherent Jurisdiction, Contraception, and Mental Incapacity’ (2011) 19 MLR 326-333. [10] Mental Capacity Act, s.1(2) [11] St George’s Healthcare NHS Trust v S [1998] 3 All ER 673. [12] Mental Capacity Act 2005, s.1(4). [13] Mental Capacity Act 2005, s.1(5). [14] Mental Capacity Act 2005, s.4. [15] Department of Constitutional Affairs, MCA 2005 Code of Practice (2007: para 8.22). [16] Re F (A Mental Patient: Sterilisation) [1990] 2 AC 1. [17] Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. [18] Re MM (An Adult) [2007] EWHC 2003 (Fam). [19] Re B (A Minor) (Warship: Sterilisation) [1987] 2 All ER 206. [20] Re A (Male Sterilisation) [2000] 1 FCR 193. [21] Re B (A Minor) (Warship: Sterilisation) [1987] 2 All ER 206. [22] Re LC (Medical Treatment: Sterilisation) [1997] 2 FLR 258. [23] Mental Capacity Act 2005, s.2. [24] Mental Capacity Act 2005, s.3. [25] Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112. [26] Re T (Adult: Refusal of Treatment) [1993] 2 All ER 649. [27] Re MB (Caesarean Section) [1997] 2 FLR 426. [28] Mental Capacity Act 2005, s.1(4). [29] Re MB (Caesarean Section) [1997] 2 FLR 426.

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