Category: Free Essays

This work was produced by one of our professional writers as a learning aid to help you with your studies

The most serious offence that Marion could be charged with is the murder of Spike and Toby. Murder is defined in law as causing the death of a human being within the Queen’s peace with the intention to kill or cause grievous bodily harm. Therefore murder comprises of two elements, these are 1) the act (actus reus) and 2) the intention (mens rea). Since the implementation of the Law Reform (Year and a Day Rule) Act 1996 it is not necessary for the death to occur within a year and a day of the act or omission. The first element to be satisfied is the actus reus and causation. Marion clearly performed the act of setting fire to Spike and Toby’s flat but did this cause the deaths of both Toby and Spike?

The accused’s act does not necessarily need to be the sole or even the main cause of death, it is required that the accused act made a significant contribution to the consequences as stated in R v Cheshire . Toby was pronounced dead at the scene of the fire and there is no information suggesting there was an alternative cause of death. Therefore it is clear that smoke inhalation from the fire was a significant contribution to the cause of Toby’s death. In the case of Spike’s death it is slightly more complicated as the medical treatment he received may constitute an intervening act (novus actus interveniens) in the chain of causation.

In the authority of R v Jordan it was decided if medical treatment received is the sole cause of death and was grossly negligent the chain of causation will be broken. However, if the injury caused by the accused is the operative cause of the victim’s death the chain of causation will not be broken as confirmed in R v Smith . In Smith the facts concerned a barrack room brawl in which the accused had stabbed the victim; the victim had been dropped twice on the way to the medical room. The medical staff failed to recognise the extent of the victim’s injuries resulting in the victim s‘death. The accused’s conviction for murder was upheld as the wound had been the operative cause of the victim’s death. in the case of R v Cheshire Beldam LJ stated “it will only be in the extraordinary and unusual case that such treatment can be said to be so independent of the acts of the accused that it could be regarded in law as the cause of the victim’s death to the exclusion of the accused’s act”. Therefore in the case of Spike’s death it will be considered if the fact that the life support machine was not properly connected was so independent of the injuries suffered from the fire. It is likely that the smoke inhalation from the fire will be considered as the operative cause of Spike’s death and the element of causation will be satisfied. Therefore the elements of the actus rea and causation will be satisfied in case of Spike and Toby‘s deaths

In order for the mens rea of murder to be satisfied the prosecution must establish that the accused intended to kill or cause grievous bodily harm as stated in R v Moloney and confirmed in R v Hancock and Shankland and R v Woollin in the House of Lords. In Woollin the House of Lords decided the intention would be satisfied if death or serious injury was a virtually certain result of the accused action. However, there is no absolute magic formula, Lord Scarman stated in Hancock the more probable the consequences the more probable the accused foresaw it. Marion may contend that she only intended for Spike to be re-housed by the council and she had no knowledge that Toby was in the house.

In the circumstances that an individual has the intention to commit a particular offence against a particular victim but actually commits that offence against another, the mens rea can be transferred to the actual victim. This principle is illustrated in the cases R v Mitchell and Attorney-General’s Reference No.3 of 1994 . In Mitchell the accused had been found guilty of manslaughter when he had deliberately punched a 72 year old man who had feel against an 82year old woman. As a result of the fall the 82 year old woman suffered a broken femur which required surgery, during the surgery the woman died due to complication that arose. The argument that the doctrine could only apply to the intended victim and not the actual victim were the same person was rejected by the Court of Appeal. Although the decision in Attorney-General’s Reference No.3 was reversed by the House of Lords the case illustrated that the question of mens rea is one of fact for the jury to decide. Therefore any malice towards Spike will be transferred towards Toby.

Marion may claim the defence of provocation under section 3 of the Homicide Act 1957 as her act was in response to the intimidation and harassment inflicted by Spike. The test for provocation is one of two limbs, these are; 1) the subjective condition that the accused was actually provoked to lose his self control and 2) the objective condition that the reasonable man would have done so. Devlin J stated in Duffy Circumstances which induce a desire for revenge are inconsistent with provocation…….a desire for revenge means that the person had time to think…that would negative a sudden temporary loss of self control”. However, Lord Taylor in R v Ahluwalia concluded that a delay in reacting will be taken into account but it will not necessarily negate the defence of provocation . The position currently is that killings that take place after a long period of provocation will be distinguished from cases of cumulative provocation. It can be that the last instance even if relatively minor can be a trigger as in Humphreys if the instance caused a loss of self control. Lord Tucker in Bullard v The Queen stated that the direction to the jury is that if they are not satisfied beyond a reasonable doubt that the killing is unprovoked the verdict is one of manslaughter.

The current standard of the objective element is that having regard to the actual provocation and the gravity for the defendant, would an individual of the same age having the ordinary power of self control might have done what the defendant has done as stated in-G for Jersey v Holley and confirmed in R v James . It is clear that Marion suffered a loss of self control it may also be possible that Spike’s last act of pretending to stab Marion will be viewed in light of the previous harassment by Spike.

In the circumstances that the Crown Prosecution Servicer or the jury are satisfied that Marion only intended for Spike to be re- housed she may be found guilty of constructive manslaughter. It will only be necessary or the prosecution to establish that Marion intended to start the fire not that she knew it was dangerous. The act will be deemed dangerous if a sober and reasonable person at the scene of the crime watching the unlawful act knowing what the defendant knows in the circumstances and seeing what the defendant sees would have foreseen the risk of some physical harm resulting there from as explained in R v Dawson .The court appeared to introduce a third element in to constructive manslaughter, this was that the accused act must be directed at the victim and likely to cause immediate injury. However, this was rapidly overturned for in R v Mitchell for the act must simply directed to another. In R v Goodfellow the accused had sent fire to his house with the intention of being re-housed by the council, the fire had resulted in the death of some of his family. The aimed at doctrine was rejected in favour of the act directed another test the accused was convicted of constructive and reckless manslaughter. In Andrew v DPP Lord Atkin stated “of all crimes manslaughter appears to afford most difficulties of definition, for it concerns homicide in so many and varying conditions, it is submitted that the mens rea for the unlawful act of criminal damage should suffice. This was confirmed by the decision in R v G . As Marion clearly intended to set fire to Spike’s flat it is likely that she will be found guilty of constructive manslaughter.

In the unlikely event that Marion is found not guilty of constructive manslaughter the least serious offence that she could be liable for are under the Criminal Damage Act 1971 such as, intentionally or recklessly endangering life under section 1(3) and arson under section 1(3).

Bibliography

Elliot & Quinn Criminal Law 7th Edition Pearson Education Limited

Jonathan Herring Text, Cases and Materials on Criminal Law Third Edition Oxford publishing

David Ormerod, Smith & Hogan Criminal Law 12th Edition Oxford

Blackstones Criminal Practice 2008 Oxford

Norrie. A “After Woollin” [1999] Crim LR 532

‘Legislating the Criminal Code: involuntary Manslaughter’, Law Commission No.237 [1996]

This work was produced by one of our professional writers as a learning aid to help you with your studies

‘Parliament’s purpose in the legislation, as we divine it from the terms of the Act, was to assist in the evidence based conviction of the guilty, without putting those who are not guilty at risk of conviction by prejudice’ (R v Hanson [2005] 2 Cr App R 21, Rose LJ at [4]).

In light of the above statement, evaluate the provisions of the Criminal Justice Act 2003, and the relevant case law under the Act, relating to attack on another’s character.

Sections 98 to 113 of the Criminal Justice Act 2003 (CJA) represent a significant change from the accepted common law approach to the methods by which bad character evidence could be introduced in the course of criminal trial proceedings. Notwithstanding the criticisms directed against the legislation from various quarters, an objective appraisal of the provisions themselves and the judicial interpretations provided since the passage of the CJA confirms that to a large degree, the observations of Rose LJ noted in the title as to Parliament’s purpose are accurate. As importantly, the evidentiary regime established in the CJA strikes a fair and fundamental balance between the principles of reasonable doubt, the right of the defendant to make full answer and defence to a criminal charge, and the societal interest in the effective prosecution of crime.

This paper commences with an overview of the most important changes to the previous law concerning bad character that are now established by the CJA. The procedure contemplated by the joint effect of the CJA provisions and the Criminal Procedure Rules (CPR) is also considered and evaluated. The paper then provides an examination of the principles that support the admissibility of bad character evidence concerning defendant and non-defendant witnesses, with the seven specific ‘gateways’ for such evidence as defined by the CJA given specific consideration. The cases decided since 2004 and relevant academic commentaries are also highlighted.

There are three particular aspects to the CJA regime that guide the present analysis and require specific attention in this regard. These are:

The abolition of the common law rules that previously governed such admissibility as well as the prior rules provided in the Criminal Evidence Act 1898 concerning the cross-examination of defendants as to character

Evidence of bad character concerning a non-defendant is admissible by leave of the court on specific grounds

Evidence of the defendant’s bad character is generally admissible on a wider range of prospective trial issues, by virtue of the seven specific ‘gateways’ established by the CJA

There is no question that the Criminal Justice Act 2003, Part 11 represents a fundamental alteration of prior English law concerning the general admissibility of bad character evidence. Placed in an admittedly restricted nutshell, the prior law confirmed that the prosecution could not adduce evidence of the defendant’s bad character (other than evidence concerning the offence charged or offences against the administration of justice committed in relation to the offence charged). The prosecution was also prohibited from leading evidence of the defendant’s propensity to commit criminal acts even if relevant to the charge. In this way, the previous bad character evidence rules were an exception to the general rule that all relevant evidence is admissible in a criminal trial. The traditional caveat advanced in this respect that justified the exclusion of evidence of bad character was that it is often irrelevant to the proof of a defendant’s guilt; insofar as it is relevant, its prejudicial effect outweighs its probative value.

The reworking of the law in the CJA commences with the definition of bad character provided at s.98 and s.112. There are two specific ingredients in the definition. Bad character evidence may include any evidence of misconduct or a “disposition” towards misconduct; it may also include misconduct established through evidence of the “…commission of an offence or other reprehensible conduct”.

Subject to special procedures that governed the admissibility of ‘similar fact’ evidence that also may have provided the basis for bad character evidence to be admitted against a defendant, the case law that has subsequently interpreted the admittedly broad expressions ‘misconduct’ and ‘reprehensible conduct’ as employed in the CJA has given each phrase a sensible meaning. If the entire purpose of criminal evidence rules may be summarised as achieving the balance between private rights to full defence and the interest of the state as contended in the paper’s opening paragraph, the case law achieves this purpose. In Weir, the Court of Appeal determined that the propensity to commit crime on the part of an accused could be proven with reference to the defendant’s commission of other crimes, but the prosecution could establish propensity by other means. The ‘other means’ were fleshed out in the other case law, including Renda, where the Court ruled that a prosecution witness may be cross-examined about incidents of misconduct known to the defendant which had never themselves been the subject of a criminal charge.

It is contended that a greater breadth afforded judicial discretion to admit bad character does not improperly impair the defence so much as it ensures a greater range of relevant evidence may be considered by the court. This discretion is placed within a procedural construct that has proven useful in the relatively brief life of the CJA provisions. The prosecution is required to provide the defendant a minimum of 14 days notice of its intention to introduce bad character evidence at trial; the defendant has the opportunity to object prior to the tendering of the proposed evidence and a ruling will be obtained accordingly. The procedure applies to bad character evidence proposed by the prosecution and such evidence a defendant proposes to call with respect to a co-defendant.

These rules achieve two important results not necessarily guaranteed under the former regime where applications of this nature were regularly permitted to be made by trail judges within the trial proper. The defence will not be surprised or in any way caught unawares by the prosecution application to rely on bad character evidence. In a system of justice that historically exhibited reluctance to provide full disclosure of the entire case relied upon by the prosecution in advance of trial, this Rule is a very positive development that promotes the overarching principle of procedural fairness. The secondary benefit achieved through this procedure is a more focused trial. Jurors and witnesses ought to expect that they shall attend a proceeding that will not be diverted from the orderly calling of evidence by virtue of unexpected motions brought to resolve questions of admissibility that can be resolved efficiently at the pre-trial application stage.

Further, the notice provisions provided in the CJA and the Rules of Criminal Procedure permit all parties to make appropriate enquiries in advance of trial concerning the intended evidence. In this important sense, the relevance of the evidence can be buttressed or challenged in a thorough and effective way where appropriate.

The distinction in the treatment of bad character evidence that pertains to non-defendants and defendants is confirmed in s. 100 CJA. It is important to note that the often problematic evidentiary rules concerning the cross-examination of a sexual assault complainant are excluded from the operation of the CJA in this respect. It is contended that this exception is the one significant difficulty revealed by the revisions. The special provisions that were enacted to govern the admissibility of prior sexual history evidence have attracted significant attention. For example, there is a legitimate need to ensure that a defendant in a sexual offence prosecution is not permitted to equate the fact that a woman did not make complaint concerning his conduct at an earlier time with the conclusion that the present complaint must be false. Criminal trials should not be determined on the basis of ‘rape myths’ or stereotypical notions of how a rape victim ought to behave. However, it would be preferable that all criminal evidence be evaluated using the same criteria. The CJA framework is entirely suited to prevent the introduction of such evidence when the ‘gateway’ principles are applied; special consideration for specific offences undermines the cohesiveness of the law.

In all other respects, the language used in s. 100 section provides the clearest possible demarcation between the permitted approaches to the tendering of non-defendant bad character evidence. Only where the proposed evidence is important explanatory evidence, or where the evidence is directed to an issue in the proceedings and it is of substantial importance to the presentation of the case as a whole may it be admitted. The section provides amplification on the definition of the phrase ‘important explanatory evidence’ as evidence without which the jury would find the case difficult or impossible to understand (all emphasis added).

A semantic criticism may be made that the use of ‘difficult’ and ‘impossible’ in the same definitional expression is clumsy and may lead to inconsistency given the different each term provides as a condition precedent to admissibility. However, the underlying philosophy inherent in the section is sound. Bad character evidence that relates to non-defendant’s ought to be pre-screened by the trial judge to ensure its relevance and to give greater assurance that the trial process is not distracted from the consideration of important evidence. The subsequent case law has properly limited ‘misconduct’ evidence to exclude an arrest on a criminal charge; the section imposes a higher test with respect to the introduction of a non-defendant’s bad character than does the test for the introduction of a defendant’s bad character.

Prospective bad character evidence concerning a defendant is potentially admissible through one or more of the seven procedural ‘gateways’ established in s. 101 (1) CJA. Each provision has a valid trial fairness objective; for example, bad character admitted on consent, or such evidence led to rebut a defence attack on another person’s character are as rooted in common sense as they are fair adjudicative principles. The gateways that restate the importance of explanatory evidence to give a fact situation appropriate context, and the traditional relevance / probative value versus prejudicial test developed in the common law warrant further examination in this regard. These are the most important and the most litigated provisions in the gateway structure.

Edwards provides a useful example of how a court will assess how important background evidence must be to the understanding of the entire case. In this decision, the Court of Appeal confirmed that for a jury to properly understand the nuance of a heroin trafficking transaction, evidence could be called by the prosecution to explain how such transactions proceeded if they were to understand why a witness said that they could identify the defendant.

Relevance to an important matter between the defence and the prosecution as described in s. 101 (1) (d) CJA is not restricted to the defendant’s alleged propensity to commit the subject crime or crime generally. The provision represents a barrier to the prosecution to call such evidence if it is not central to its chief purpose. For example, whilst the previous common law based limitations on the tendering of a defendant’s criminal record was often regarded as highly prejudicial to the prosecution, the revisions enacted in the CJA provisions do not countenance the wholesale introduction of such evidence, notwithstanding how attractive the evidence might be to the prosecution in the context of its desire to make the most of its position.

Campbell is a decision that underscores why the CJA provisions strike the appropriate balance between defendant interests and the jury’s ability to fairly decide the case. The trial judge in Campbell permitted the jury to hear evidence of the defendant’s two prior convictions without permitting them to hear any other background into those earlier events. It is not surprising that after the judge’s charge to the jury, this question was asked by the jury, “What was the significance of revealing the defendant’s two previous assault convictions? Anything else we should know?”The introduction of a criminal conviction alone absent information that provides context to the events that led to the previous entry may result in a skewed understanding of the defendant that prejudices the defence position; the approved course by virtue of Campbell is that the jury should be warned not to attach too much weight to bad character evidence, let alone conclude that the defendant is guilty simply because of his bad character.

The substantial probative value requirement for bad character evidence as confirmed in s. 101 (1) (e) reinforces the traditional bedrock proposition of criminal evidence admissibility – judges must ensure that the probative value exceeds its prejudicial effect. By placing this important principle within the seven avenue evidentiary gateway, the CJA achieves a comprehensive effect concerning the admissibility and appropriate evaluation of bad character evidence that the prior pastiche of common law principles and circumstance driven exceptions could never achieve.

When all of the provisions discussed above are taken together, a clear picture is drawn of the over all effect of the CJA with respect to the admissibility of bad character evidence. The law has been made more certain, but not at the expense of trial or procedural fairness. Relevance and probative value are given their due, and the ability of the defence to counter evidence that passes the CJA standards is unimpaired by its approach as contained in sections 98 to 113.

Bibliography

Statutes and Rules considered

Canadian Charter of Rights and Freedoms 1982

Canada Evidence Act 1990

Criminal Justice Act 2003, ss. 98 -113

Criminal Procedure Rules, Part 35

Cases and reports considered A, R v [2001] 3 All ER 1

Boardman v DPP [1975] AC 421

Bovell and Dowds, R v [2005] EWCA Crim 1091

Campbell, R v [2007] 1 WLR 2798

Corbett , R. v. (1988) 41 C.C.C. (3d) 385

Edwards, Fysh Duggan & Chohan, R v [2005] EWCA Crim 1813

Hanson, Gilmore and Pickstone, R v [2005] EWCA Crim 824

Highton, Van Nguyen and Carp, R v [2005] EWCA Crim 1985

Humphris, R v

[2005] EWCA Crim 2030

Maxwell v DPP [1935] AC 309

O’Brien v Chief Constable of South Wales Police [2005] 2 WLR 1038

Renda & Others, R v [2005] EWCA Crim 2826

Weir & Others, R v [2005] EWCA Crim 2866

Authorities considered

Allen, Christopher (2006) Evidence Q&A 2005-2006 6/e London: Cavendish Routledge

Crown Prosecution Service (2008). Bad Character Evidence [online] Retrieved March 15, 2010 at:< http://www.cps.gov.uk/legal/a_to_c/bad_character_evidence/>

Durston, Gregory (2004) ‘Bad character evidence and non-party witnesses under the Criminal Justice Act 2003? International Journal of Evidence and Proof 8, 4: 233-239

Law Commission Evidence of Bad Character in Criminal Proceedings (Report) [2001] EWLC 273(2)

Fowles, Tony (2006) ‘Counterblast: The Criminal Justice Act 2003 – The End of an Era?’ Howard Journal of Criminal Justice 45, 1: 71-73

O’Brian, William E. (2009) ‘The Right of Confrontation: US and European Perspectives’ Warwick School of Law Research (2005) 121 LQR 481-510

Spencer, J.R. (2006). Evidence of Bad Character. Oxford: Hart Publishing.

E.g. Fowles, Tony (2006) ‘Counterblast: The Criminal Justice Act 2003 – The End of an Era?’ Howard Journal of Criminal Justice 45, 1: 71-73; O’Brian, William E. (2009) ‘The Right of Confrontation: US and European Perspectives’ Warwick School of Law Research (2005) 121 LQR 481-510

The Bibliography reveals a large number of decisions in this area that were rendered between 2005 and 2007, the time frame within which the first trial decisions that applied the new CJA procedures were considered by the Court of Appeal.

S.99 (1) CJA

S.100

S. 101(1); the ‘gateways’ are subsections (a) through (g)

Ss.98 to 113, CJA

E.g. Escaping lawful custody or resisting arrest

Maxwell v DPP [1935] AC 309

; Lord Hailsham described the contests between prosecution and defence over propensity evidence as having left a “pitted battlefield” ( DPP v Boardman [1975] AC 421, 445), a testament to the historical importance of this issue in English law that underscores the significance of the CJA provisions

Law Commission Evidence of Bad Character in Criminal Proceedings (Report) [2001] EWLC 273(2)

Ss. 98, 112

Similar fact evidence admissibility (so called) was subject to the common law rules confirmed in Boardman v DPP [1975] AC 421, where the fundamental evidentiary test of prejudicial effect versus probative value applicable to all types of evidence generally governed similar fact admissibility

Weir & Others, R v [2005] EWCA Crim 2866

Renda & Others, R v [2005] EWCA Crim 2826

By virtue of the combined operation of ss. 111(2), CJA and Part 35, Rules of Criminal Procedure

ibid

Ibid; see Hanson, [2005] EWCA Crim 824, para 117

Other Anglo-American jurisdictions such as Canada opted to enshrine full disclosure and prosecutorial notice in bad character evidence applications in their laws some years ago. See Canadian Charter of Rights and Freedoms, s.7, the Canada Evidence Act, s. 12 and the leading case of Corbett (1988), 41 C.C.C. (3d) 385 at 399-401

See Humphris [2005] EWCA Crim 2030; Edwards [2005] EWCA Crim 1813; Bovell and Dowds [2005] EWCA Crim 1091, all cases that reinforce the relationship between procedural fairness and the s.111(2) CJA provisions

S. 41 Youth Justice and Criminal Evidence Act; see also Durston, Gregory (2004) ‘Bad character evidence and non-party witnesses under the Criminal Justice Act 2003? International Journal of Evidence and Proof 8, 4: 233-239

R v A [2001] 3 All ER 1

ibid

Weir, para 73, 74

Ibid, 36; see also O’Brien v Chief Constable of South Wales Police [2005] 2 WLR 1038

S.101 (1) (a)

S.101 (g)

S. 101 (c); the traditional rules concerning res gestae statements will form a part of this consideration

Ss. 101 (d) and (e), respectively

[2005] EWCA Crim 1813, para 70, 71

Ibid; an important weakness in the prior law is discussed in Crown Prosecution Service (2008). Bad Character Evidence [online] Retrieved March 15, 2010 at:< http://www.cps.gov.uk/legal/a_to_c/bad_character_evidence/>, at part 2 (Principle); the prior law did not define what constituted background

See e.g. Highton, Van Nguyen and Carp [2005] EWCA Crim 1985; see also generally Spencer, J.R. (2006). Evidence of Bad Character, c.1, 2

See Campbell [2007] 1 WLR 2798

Ibid

Ibid, para 14

Ibid, para 45

Boardman , supra; see also Allen, Christopher (2006) Evidence Q&A 2005-2006 6/e

Spencer, 4.20, 4.29

This work was produced by one of our professional writers as a learning aid to help you with your studies

Modern perspective on contractual obligation

Empirical studies of contracting behaviour consistently demonstrate that commercial contracting parties care little for written contracts or the rules of contract law. Should the law of contract manifest any concern over this? If not, why not, and if so, how should the rules of contract law be amended to better reflect commercial practice?

Question: A

Introduction

The overwhelming majority of contracts are transacted in an informal setting. Such contracts are either made by word of mouth, or even by a party’s conduct. Whilst that may be the case, written contracts are the types of agreements which are favoured by parties in the commercial world, not least because of what is potentially at stake in the event of a breach of the agreement.
The extent of the terms of some commercial agreements and the seriousness of the implications of a breach of a party’s obligations, written contracts are resorted to to ensure both that the parties to the contract are aware of their rights and obligations and also as a reference tool in the event of a dispute.
The advent of the European Community witnessed a renewed impetus to harmonize the laws pertaining to, inter alia, commercial contracts. Various efforts have already been made to facilitate international transactions. For instance, the Uniform Law on International Sales and the Vienna Sales Convention, the Rome Convention on the Law Applicable to Contractual Obligations. These efforts have been producing w new codified lex mercatoria.
This work is seeks to highlight the rules applicable to parties to commercial contracts within the European Community and whether or not these rules are adequate to cope with parties who do not honour their contractual obligations. More specifically, are contracts which are made orally or by conduct enforceable in European Law?
The essay shall also highlight whether there is any concern if parties care little for written contracts, and if not why not? In the Conclusion, the work shall explain whether or not the rules ought to be modified to reflect current commercial practice.

Harmonising European Contract Law

Efforts already made to harmonize the EU contract law rules have manifested in various forms. The national laws applicable to contracts vary from Member State to Member State. This difference or divergence in the laws inevitably adversely influences the decision of businesses whether or not to carry out cross-border transactions. A difference in the laws can result in uncertainty and negatively affect whether or nota business decides to enter an agreement with a party based in a different Member State. The European institutions have therefore taken action to alleviate this problem by introducing laws which are applicable throughout Member States. These laws come in a variety of forms; Regulations; Directives and European Court of Justice judgments. Most notably, however, The Principles of European Contract Law 1998 has done a good job in encapsulating, codifying and harmonizing the rules of contract law from Member States.

The Principles of European Contract law

Parts I and II – (Parts I and II completed and revised) states (at Article 1) that the Principles are intended to be applied throughout Member States as the general rules of contract law in the EC. Furthermore, the Principles shall apply when the parties agree to their application, or in the event that it has not been expressly stated that a specific system or rules of law shall govern the contract (see Section 1, Article 1.101(3)(b)). In addition, the Principles can also be used where other national laws or rules fail to provide a solution (see Section 1, Article 1.101(4)). Under the Principles however, the parties still maintain the right to freedom of contract. That is to say that parties are permitted to agree upon the terms they wish to agree upon. However, set out in the document are ‘General Obligations’ of ‘Good Faith’ and ‘Fair Dealing’ (Section 2, Article 1.201) and a ‘Duty to Cooperate’ (see Section 2, Article 1.202). These obligations cannot be derogated from and therefore provide a safeguard for parties to a contract. Albeit a contract, under the Principles, may still be made orally or by conduct, and does not have to be in writing. All that is required is that the parties intended to be ‘legally bound’ (see Section 1, Article 2.101), and that they reached a ‘sufficient agreement’ (see Section 2, Article 2.101). Furthermore, those terms which have not been individually negotiated can be invoked (under Article 2.104) against a party who claims to have been unaware of them, providing that the party wishing to invoke them takes reasonable steps to highlight their existence prior to, or at the time of, concluding the contract.

The European Contract Law Project

The Principles of European Contract Law document is over a decade old now. Since the introduction of the Principles of European Contract Law, there have been further efforts within the European Community to streamline and harmonise European Contract law. Most notably, the Common Frame of Reference has made great strides in this area.

Background to the Formation of the Common Frame Reference

In 1999, the European Council (Tampere) requested a study on the feasibility of approximation of civil law in order to facilitate the efficient functioning of the European market. The European Commission responded by announcing that a consultation shall take place in order to collate information on how to form a European Contract Law. Subsequent to this, an Action Plan followed in 2003 proposing measures, for instance, the Common Frame of Reference was one such measure.

Common Frame of Reference

In essence, the Common Frame of Reference (‘CFR’) outlines the model rules, principles and definitions to be applied to contract law within the EC. It is a long-term project with the objective of facilitating the preparation or revision of existing legislation in the field of contract law. It shall be of assistance to EC Legislators by providing solutions to contractual problems within the EC. These solutions have been extracted from existing contract law within the Member States. It is hoped that this will, inter alia, modify the existing body of rules applicable to contract law within the EC.

Work already done in this area has produced various pieces of legislation aimed at improving existing laws. For instance, EU consumer protection law is a good example of all the work that has resulted in EC laws.

R. Madelin, in his article, European Contract Law: Moving Forward Together, Director General for Health and Consumer Protection European Commission stated (at pg. 5) that it is hoped that the European Contract Law Project, and particularly the CFR, shall aide the pursuit of the following goals: achieving better regulation, boosting competitiveness and improving the functioning of the international market (see pg.5, R. Madelin, European Contract Law: Moving Forward Together, Director General for Health and Consumer Protection European Commission, Conference of the network of stakeholder experts on the Common Frame of Reference in the area of European Contract Law (CFR-net), Charlemagne Building, Meeting Room S2, 15 December 2004)

Reshaping the legal landscape to enhance competitiveness within the EC ought to provide an environment in which businesses are able to operate within the EC in a more efficient and profitable manner. This should address some of the complaints which have been forthcoming from small and medium size enterprises, who were concerned, inter alia, about inconsistent and diverse contract laws throughout the Member States (see pg. 5 article). It was felt that a more consistent and transparent system would facilitate competitiveness by allowing businesses to conduct cross-border transactions in a more efficient manner by supplying goods and services in a more competitive environment.

It follows that greater confidence in European Contractual Law would inject greater confidence in the EC business community and in turn increase cross-border transactions. Ultimately therefore, European institutions are responsible for introducing laws which will simplify, and be more coherent to facilitate transactions within the EC, which ought to eliminate, or at least reduce, legal obstacles to trade.

The European Commission has committed itself to utilizing the CFR in order to improve the quality and coherence of contract law. The success and development of the CFR is due to the fact that it has received support from all European Community institutions, Member States and stakeholders alike.

Following public consultation, the CPR was adopted. The objective of the CFR shall become a toolkit for the Commission’s lawmakers, including the European Council and EC Parliament. The CFR shall also be of benefit as a source of reference for law-makers, judges and lawyers.

The work carried out for consumer contract law has been particularly fruitful. For instance, in October 2008, the proposal for a Directive on Consumer Rights was adopted by the Commission. The ultimate objective of which was to make it easier and cheaper for Member States to conduct cross-border transactions.

The Unfair Contract Terms Directive (1993/13/EEC) is only of eight pieces of legislation which is being analysed in relation to the Review of the Consumer Acquis. Such initiatives are aimed at improving legislation by identifying and alleviating problems.

For instance, the Unfair Contract Terms Directive has introduced the concept of ‘good faith’ into consumer contracts, in an attempt to redress any imbalance that may be present in a contract between a seller and consumer. In addition, the Directive sets out a list of terms that are to be deemed unfair in such contracts, and are thereby rendered obsolete if they are included in such agreements. It is a further requirement that terms are to be ‘plain and intelligible’ and any ambiguity shall be interpreted in the consumer’s favour. Therefore is accordingly a duty on Member States to ensure that the provisions of the Directive are implemented.

Conclusion

As noted above, the European institutions have been busy harmonising the laws applicable to contracts throughout the Member States. The work already completed with the CRF has ensured that parties to contracts have participated in the process of harmonising the laws applicable to contracts. This therefore ensures that the rights and obligations of the parties to a commercial contract are reflected in the laws introduced by the EC institutions. It accordingly follows that there is no need for any concern if parties prefer to enter contractual agreements by conduct or statement. Providing such agreements are clear (see Section 2, Article 2.101 of the Principles), and that both parties are aware of the terms, and express their wish to be legally bound by the agreement (see Section 1, Article 2.101 of the Principles), the right to freedom of contract has been preserved. Given the differences in the Common law system adopted in Ireland and the United Kingdom, and the variations of the civil law systems adopted by the remaining Member States, these efforts by the EC institution et al to harmonise the contract laws applicable to Member States ought to improve the position of parties to commercial contracts by keeping them informed of their rights and obligations, which in turn, one would think, ought to ultimately reduce breaches of contract within the EC.

Question B
EU business law
Critically assess the corporate structures within EU Member States.

Introduction

The corporate structures in Member States of the European Community (‘EC’) differ immensely in their form and the practices that they adopt. The EC institutions have accordingly endeavoured to facilitate the smooth functioning of the internal market by harmoninsing the systems and laws applying to corporate structures throughout Member States.

This assignment provides a critical assessment of the corporate structures applicable to Member States. More specifically, the work shall explore whether or not corporate structures within the EC are operating in an efficient manner. Given the limited word count of this work, however, and the complexity of the subject, the essay concentrates on one aspect of corporate structures within the EC; Golden Shares.

The work shall highlight the efforts made by the EC institutions, particularly the European Court of Justice (‘ECJ’), in attempting to bring about parity within Member States by eliminating obstacles to the free movement of capital, as required under Article 56 EC Treaty. Golden shares inhibit the free movement of capital by discouraging foreign investment, inter alia, due to the special rights that are often retained by the holders of golden shares.

EC law makers, particularly the ECJ, have endeavoured to bring a degree of semblance to the EC rules governing corporate structures in relation to ‘golden shares’. This has been done through a process of sifting out the ‘golden shares’ and ruling them to be inconsistent with EC law. The assignment shall commence by outlining information about ‘Golden Shares’ before setting out numerous prominent ECJ case law pertaining to ‘Golden Shares’. Finally, in the Conclusion, the work shall sum up the findings.

Golden Shares

A ‘golden share’ is a shareholding which derives from a former state-owned company, in which a government of a Member State may reserve, subsequent to its privatization. Such shares carry with them special rights which the government shareholder can enjoy. Albeit the government, despite being a minority shareholder, often wields rights which permit it to exercise undue influence over the company. This usually exceeds the percentage of the stake the government owns in the company. The special rights in question can come in the form of: power to veto certain actions by the company in question; limiting the size of other shareholdings; blocking foreign shareholdings; and a right to control the appointment of directors. Whilst being a relatively common practice in Member States, the EC feels that the practice is undesirable and has therefore sought to tackle such shareholdings. For instance, in 2003, the ECJ found that the UK government failed in its duty to fulfill its obligations in accordance with Article 56 of the EC Treaty, namely in respect of the principle of the free movement of capital.

In addition, Spain was also held to have upset the ECJ by holding golden shares in numerous companies, such as: Repsol, an energy company; Telfoncia, telecommunications company; Tabacalera, tobacco company; Argentaria, banking group; and Endesa, electricity company. Again the ECJ held that the shareholdings held by the Spanish government in this regard were inconsistent with EC principles as they restricted the free movement of capital throughout the EC. The result of the ECJ’s judgment was that the Spanish government was compelled to change its relationships with the companies in question.

The ECJ has illustrated, however, that its decision are thoroughly thought through before outlawing such shareholdings. For instance, the ECJ found that a Member State can derogate from the obligations under Article 56 EC Treaty of ensuring the free movement of capital, on the basis of retaining special rights as the holder of ‘golden shares’, on grounds of national security, and in applying the principle of proportionality, when it decided that Distrigaz, a Belgian energy firm, was permitted to retain its ‘golden share’ because it was a ‘legitimate measure designed to promote the general national interest in terms of the security of the national gas supplying times of emergency’.

However, the general consensus within the ECJ appears to be one of ruling such shareholdings to be inconsistent with EC principles. For instance, in 2006, the ECJ proved once again that it would not shy away from ruling that a Member State had infringed the principle of free movement of capital when the Netherland’s government was found to have breached the principle by retaining special rights (golden shares) following the privatization of the national postal, Koninklijke KPN NV (‘KPN’), and telecommunications companies TNT Post Groep NV (‘TNG’).

The shares themselves permitted the government to, inter alia, give prior approval of specific management decisions. The ECJ accordingly held such rights to be disproportionate to the rights enjoyed by ordinary shareholders. It was accordingly felt that such shares could potentially discourage investors from other Member States from investing in the company.

Conclusion

The ongoing campaign by EC institutions, particularly the ECJ in this regard, in seeking to eradicate any impediments to greater liberalisation of the EC Member States’ markets, is clearly not complete. It is therefore highly likely that the eradication of government owned ‘golden shares’ is likely to continue unabated. That is that there appears to be no room for ‘golden shares’ in the EC’s agenda. Whilst this may impact hard on the corporate structures of many Member States, the harmonization of the rules shall undoubtedly result in an increase in cross-border mergers, which includes former state owned companies in which the government hitherto held ‘golden shares’. This may call for a shake-up of the current corporate structures in this regard, but the closer cooperation of Member States can only enhance and improve the corporate structures.

Bibliography
Text Books:

P. Craig and Grainne De Burca, EU Law: Texts, Cases and Materials, 2008, Oxford University Press
P. Richards, Law of Contract, 8th Edition, 2007, Pearson Longman
R. Goode, Commercial Law, New Edition, Penguin

Cases:

Commission v. Belgium C-503/99
European Commission IP/03/1753
Commission v. Kingdom of Spain Case C 463/00
Commission v. United Kingdom Case C-98/01

Journals:

Ivan Kuznetsov, The Legality of Golden Shares under EC Law, Vol. 1 No. 1 2005, Hanse Law Review

Omar Shah and Scott Campbell (Latham & Watkins), End of the Golden Age ? The European Courts Move to Promote Greater Free Movement of Capital Within the EU by attacking ‘Golden Shares’, World Trade Executive –

www.wtexecutive.com

Philip Martinius and Matthias von Oppen, ECJ Delivers New Judgments Concerning “Golden Shares”, mondaq, http://www.thefreelibrary.com/ECJ+Delivers+New+Judgments+Concerning+%22Golden+Shares%22.-a0102820963

R. Zimmermann and S. Whittaker, Good Faith in European Contract Law, 2000, Cambridge University Press

R. Madelin (Director General for Health and Consumer Protection European Commission), European Contract Law: Moving Forward Together, Conference of the Network of Stakeholder Experts on the Common Frame of Reference in the Area of European Contract Law (CFR-net), Charlemange Building, Meeting Room S2,15 December 2004

Structuring European Acquisitions, Reorganisations, and Investments : Third Edition, Reprinted with permission by World Trade Executive, inc. www.wtexecutive.com)

Weil, Gotshall & Manges LLP, Comparative Study of Corporate Governance Codes Relevant to the European Union and it Member States, On behalf of the European Commission, Internal Market Directorate General , Final Report & Annexes I-III, , January 2002

Additional Materials:

Consumer Sales Directive 99/44
The Principles of European Contract Law 1998, Parts I and II – (Parts I and II completed and revised)
Unfair Contract Terms Directive 93/13

Internet Sources:

http://www.cbs.dk/departments/law/staff/ol/commission_on_ecl/members.htm

http://ec.europa.eu/consumers/rights/gen_rights_en.htm#gar

http://europa.eu.int/rapid/pressReleaseAction.do?&language=EN&reference=IP/03/1753

(15.3.2005)
http://www.eu-consumer-law.org/index.html
www.google.books.com
www.lexmercatoria.org

http://webh01.ua.ac.be/storme/CECL.html

Under Article 2.102, a party’s intention to be bound by the contract shall be discerned from the statements or conduct of the parties.

The Directives in question are: the Doorstep Selling Directive 85/577; the Package Travel Directive 90/314; the Unfair Contract Terms Directive 93/13; the Timeshare Directive 94/47; the Distance Selling Directive 97/7; the Price Indication Directive 98/6; the Injunctions Directive 98/27 and the Consumer Sales Directive 99/44.

See pg. 69, Omar Shah and Scott Campbell (Latham & Watkins), End of the Golden Age ? The European Courts Move to Promote Greater Free Movement of Capital Within the EU by attacking ‘Golden Shares’, World Trade Executive –

www.wtexecutive.com

Commission v. United Kingdom Case C-98/01

Commission v. Kingdom of Spain Case C 463/00

Commission v. Belgium C-503/99

Ibid

See European Commission IP/03/1753. Available at:

http://europa.eu.int/rapid/pressReleaseAction.do?&language=EN&reference=IP/03/1753

(15.3.2005)

This work was produced by one of our professional writers as a learning aid to help you with your studies

Every European country controls a distinct system of judicial enforcement and labour legislation. This is most often closely related to the process of collective bargaining and arrangements of social partner consultation. Traditionally, collective labour law adopts the body of rules which govern the relationships between the collectivity of the employees and the employer of a group of employers. One may think of following laws, in this context:

The right to trade freedom of union

The right to workers’ participation within the company in decisions affecting their interests

The right of employees and employers to establish an organization at their own choosing from the perspective of promotion of their professional concerns

The right to autonomous collective bargaining

The right to conclude collective agreements.

Furthermore, the rules relevant to economic welfare, including strikes and lockouts as well as several measures that aim at preventing the settlement of collective labour conflicts, come under the collective labour law. It can be clearly stated that these issues have stayed within the national jurisdiction. And the collective measures that are proposed for the United States and Canada are mostly so contradictory and controversial that the consensus among the Member Stated and among both sides of industry seems to be almost impossible.

The purpose of this research paper is to show the management a brief comparison of Canadian and US labour law, because people would assume that the labour laws in the US are similar to those in Canada.

When it comes to depicting Canadian law firms, terms like small, medium and big do not make much sense today. The fact being complex and rapidly evolving landscape, with firms structured around changing client demands. That means a few international outposts or a lot of lawyers having parallel training in applied sciences or business. Whatever be the size of the law firms, legal specialization still remains the common dominator all over these firms thereby permitting practitioners to nurture their selected crafts to an art form. By recognizing the rapidly growing size and sophistication of several of the country’s top-level boutiques, mainly in areas that need multiple areas of expertise like technology law and intellectual property, Canadian Lawyer magazine has extended its definition of the size constituting a ’boutique’. Furthermore, 52 law boutiques have been identified across nine practice areas widely seen as the “go-to” experts by their colleagues. Of course, litigation boutiques are a class of their own. Admiralty and transportation law has been a specialized niche in Canada, unlike the USA, that belongs to the boutique model. An area covering marine insurance law, shipping law, and related litigation, together with the marine component of Canadian offshore for oil and gas activities, this practice is rapidly expanding along with Atlantic Canada’s booming offshore oil industry. Most of these firms work as Canadian legal counsel for various international protection and indemnity clubs, cargo, hull and machinery. This also includes general insurers across the world. Canada’s bankruptcy and insolvency bar is minor, where same players turn up frequently in most of the significant cases. Moreover, several boutique founders have said that their business fills a niche produced by the need of servicing clients of larger firms during conflict cases, which is considered as a significant source of work referrals.

Several firms that were set up as business law boutiques initially specializing in securities law have morphed into full-service firms by creating newer practice areas as they grow. Of course, nowadays, the boundaries for any business law practice has grown hazy, with clients demanding the skill of a deal maker, consummate negotiator, litigator, contacts expert, competition law expert, etc. together with the well-established cross-border affiliations with law firms located within the United States and overseas.

Canadian employment and labour law poses several potential conflicts for full-service law firms with most firms being reluctant to risk sacrificing a future corporate authorization for a one-off employment file. Furthermore, many of Canada’s most remarkable labour and employment boutiques are sub-sets of bigger firms. As far as the United States is concerned, it is equipped with the Employee Free Choice Act which is undoubtedly among the most significant and controversial bills confronting the new Congress. Opponents of EFCA have tried to portray the bill as an undemocratic, radical and dangerous piece of legislation that may deprive the voting rights of millions of American workers, thereby destroy an already fragile economy. Indeed, one of the country’s biggest management law firms has stated that it requires revolutionary changes to labour law, unlike the one in Canada, while other opponent has attempted to harm its radical approach towards first contract bargaining. However, in reality, it has by far been the modest piece of legislation that establishes rights for recognition and bargaining for US workers, weaker than those enjoyed by the Canadian workers.

Recent developments in some emerging economies describe how far US lags other democracies with respect to the protection of bargaining and recognition rights. Among developed economies, USA is the only nation that possesses a sophisticated industry worth thousands of millions of dollars annually dedicated entirely to assisting management resist collective bargaining. Nonetheless, many US union avoidance firms have sought international markets for their expertise. One such large firm operating in Canada, proving to clients that it enjoys an international reputation to eliminate union incursions, has carried out many high profile union avoidance campaigns with considerable effect.

On the other end of the scale, the Canadian system based on industrial relations is widely similar to that of the US. Moreover, the labour laws in many Canadian provinces have had similar kind of provinces as those of the EFCA. But the Canadian labour law is different than its US counterpart in two essential aspects:

Firstly, it id decentralized having only about 10 % of employees that is covered by federal labour law; most of the remaining 90% belong to 0 different provincial laws. By contrast, US law is highly centralized, with a rigid and broad federal pre-emption doctrine that restricts all but the most marginal policy experiment at the local and state levels throughout the past decades.

Secondly, the Canadian labour law is much more responsive to political alignments in comparison to its US counterpart. That is, whenever there is modification in provincial government, a significant reform is often seen in the province’s labour law. This does not hold true in the United States, wherein the need to obtain a super majority of about 60 votes in the Senate in order to overcome a filibuster presented a formidable hurdle in the path of reform proposals for labour law in recent decades.

Furthermore, Canadian labour law also offers an interesting comparison with the US since the policy debate is very different, even though the labour policy issues are very similar to the ones on the United States. labour law reform in Canada, for the most part, is not accompanied by litigious considerations regarding the need to secure the sanctity of the “secret ballot”, but only a recognition that, even with Canada with its rapid elections and strict adherence to deadlines, limitations on employer electioneering, and tougher punishments for unfair management practices, majority signing up makes organizing easier for workers, whereas contested representation elections make organizing much more difficult. Therefore, by employing the central government practice, the adoption majority sign up and several other reforms come at the forefront, but when the political arrow points towards the opposite direction, contested elections are reintroduced. Presently, five Canadian jurisdictions employ laws that have majority sign up processes. These jurisdictions are the federal jurisdiction, Quebec, Prince Edward Island, Manitoba, and New Brunswick.

Opponents of the EFCA within the United States have been repeatedly pointing towards Canada as a country wherein, as direct outcome of their experience with majority sign-up, policy makers and law makers identify the supremacy of mandatory elections. Nine in ten Canadian provinces have used majority signup in the 1980s, while only four in ten use it nowadays. Moreover, about two decades ago, majority sign up was employed by 90% of Canadian employees; today, however, these same provisions cover approximately 40% of Canadian employees. However, claims regarding majority sign being discredited in Canada and replaced by United States-style elections are totally misleading. Firstly, as aforementioned, union elections in Canada are totally different from management-dominated NLRB elections. Secondly, five Canadian jurisdictions having large and influential ones like Quebec and the federal jurisdictions, still use majority sign up. Lastly, the policy position is way beyond static and Canadian laws that are more malleable that their US counterparts. For instance, in May 2008, the Ontario Legislature took introduced a bill in order to reintroduce majority sign up. Hence, majority sign up may once again become a standard in Canada.

Toward that end, Canada’s experience with majority sign up is intimately related to the current US debate in a rather more direct way. Furthermore, the primary refrain of employer groups who opposed to majority sign up is that it would expose employees to intimidation and coercion by unprincipled union organizers. So what does the Canadian experience suggest? Till the time the Conservative Harris government had ceased using majority sign up in 1995, this system of union recognition had functioned in Ontario for almost half a century. Yet the leading scholar for the Canadian labour law, Professor Harry Arthurs, lately said that he was unknown of a single case in which the employer complained that union illegally coerced workers into forming a union. As a result of its protection for bargaining and recognition rights, bargaining coverage in Canada is more than double of the US level; nearly 31.5% overall, from over 39% in Quebec to below 25% in Alberta.

The passage of the North American Free Trade Agreement (NAFTA) has made it very common for US businesses to expand into Canada, either by entering into contractual collabouration with firms already settled in Canada or by establishing international subsidiaries. Some managers assume that NAFTA entails that common employment and labour laws apply in all two countries; however, that is not the case. Though NAFTA comprises of a side agreement known as the North American Agreement on labour Cooperation, NAALC that needs all two countries to promote the same eleven basic rules, any business running internationally must still abide by the labour laws in effect in the country of operation. Therefore, as US firms grow, it becomes essential for them to the aware of the Canadian law, particularly the laws governing employment and labour.

Specifically, the focus is given on the most significant differences between the labour laws in those two countries in seven areas, namely:

Union security.

Certification processes

First contract arbitration

Latest technologies

Successorship

Strike replacements, and

Employee participation programs

These seven areas are essential because with every area, there is empirical work that addresses the issue and their effects. Therefore, management must be aware of how the laws involved these areas can have an impact in their businesses. These seven topics are discussed in the order in which they might take place within a business, that is, a union must be certified before the management can bargain. The Canadian experience is typically instructive. Canada has more or less the same type of economy, similar employers and has undergone the similar changes that have been previously described with respect to the United States. In fact, there are major differences between the National labour Relations Act and the labour laws in Canada. There is a procedural dissimilarity between the labour laws of Canada and the US which should be mentioned concerning the jurisdiction of the federal labour statutes in the two countries. In the US, the NLRA includes the wide majority of the nation’s private sector employees. However, in Canada, the Canada labour Code covers below 10 % of the nation’s employees. Next, in Canada, labour legislation is mainly a provincial matter and the discussion concerning the Canadian labour law will actually be about the provincial laws across Canada.

Certification procedures

It is common knowledge that the private sector unionization rate within the USA is gradually degrading since a number of decades. According to the latest figures available, nearly 10.4 per cent of the US labour force or 9.5 million private sector workers in the US belonged to unions in 1994. Comparatively, the unionization rate in Canada has been constant at 33 % or greater since 1976. Furthermore, the membership trends within the two countries, comparing the decrease in the percent managed in the US with the increase in Canada during the past 20 years.

Most of the decline in the percent managed by the US is assigned to the incapability of unions to win the right to indicate newer units of employees during representation elections. Additionally, many researchers blamed the dismal union success rate during representation elections on the NLRA and reported that Canadian labour law is more favourable for unions that attempt to organize new units of employees. Indeed, the traditional organizing campaign throughout the US is renowned:

The union tries to get signatures on authorization cards from the employees within a bargaining unit;

Once the signatures are received from at least 30 % of the eligible employees, a petition if filed for election with the National labour Relations Board (NLRB). Then, the board conducts a hearing in order to resolve procedural questions with respect to the election

Then, a long and contentious pre-election campaign is organized

Finally, the election is held.

Each of these steps occurs in that order in almost every union organizing campaign in the US.

Furthermore, there are chances for employers to make it even more difficult for unions to persist in representation elections at every one of these steps. The certification/ organizing process is very different across Canada. Even though the particular certification procedures vary from one province to another, the laws governing union certification in Canada usually make it easier for unions to be selected for representing a unit of employees in ways more than one.

Bibliography

Abraham, S 1997, ‘Relevance of Canadian labour law to US firms operating in Canada’, International Journal of Manpower, Available at .

Aaron, B 1993, International Labour Law Reports, Kluwer Academic Publishers, USA.

Canadian Lawyer Magazine 2010, Survey: Canada’s leading law firm boutiques, viewed 12 May, 2010, .

Hore, E 2000, ‘A Comparison of United States and Canadian Laws as they Affect Generic Pharmaceutical Market Entry’, Food and Drug Law Journal, vol. 55, pp. 373-380.

Logan, J 2009, Union Recognition and Collective Bargaining: How Does the United States Compare With Other Democracies?, LERA, viewed 12 May, 2010, .
Harris, L 2001, An Excerpt from Canadian Copyright Law, third edition – comparison of Canadian and American copyright law, Information Outlook, viewed 11 May, 2010, .

Canadian Lawyer Magazine 2010, Survey: Canada’s leading law firm boutiques, viewed 12 May, 2010, .

Ibid.

Aaron, B 1993, International Labour Law Reports, Kluwer Academic Publishers, USA.

Ibid.

Logan, J 2009, Union Recognition and Collective Bargaining: How Does the United States Compare With Other Democracies?, LERA, .

Harris, L 2001, An Excerpt from Canadian Copyright Law, third edition – comparison of Canadian and American copyright law, Information Outlook, .

Ibid.

Hore, E 2000, ‘A Comparison of United States and Canadian Laws as they Affect Generic Pharmaceutical Market Entry’, Food and Drug Law Journal, vol. 55, pp. 373-380.

Abraham, S 1997, ‘Relevance of Canadian labour law to US firms operating in Canada’, International Journal of Manpower, Available at .

Ibid.

Hore, E 2000, op.cit

Canadian Lawyer Magazine 2010, Survey: Canada’s leading law firm boutiques, .

Ibid.

Logan, J 2009, Union Recognition and Collective Bargaining: How Does the United States Compare With Other Democracies?, LERA, .

Ibid.

Abraham, S 1997, op.cit.

Abraham, S 1997 op.cit..

Harris, L 2001, An Excerpt from Canadian Copyright Law, third edition – comparison of Canadian and American copyright law, Information Outlook,

Ibid.

Logan, J 2009, Union Recognition and Collective Bargaining: How Does the United States Compare With Other Democracies?, LERA, .

Logan, J 2009, op.cit.

This work was produced by one of our professional writers as a learning aid to help you with your studies

The CJEU’s reasoning – although not the result – in Keck is unsatisfactory for two reasons. First, it is inappropriate to make rigid distinctions between different categories of rules, and to apply different tests depending on the category to which particular rules belong. Secondly, the exclusion from the scope of Article [34 TFEU] of measures which “affect in the same manner, in law and in fact, the marketing of domestic products and those from other Member States” amounts to introducing, in relation to restrictions on selling arrangements, a test of discrimination. That test, however, seems inappropriate.” Discuss this statement.

Date authored: 03 ^rd September, 2014.

Introduction

The decision of Keck[1] concerns the interpretation of Article 34 of the Treaty on the Functioning of the European Union (TFEU) [2] which is in turn concerned with removing any obstacles to inter-state trade within the EU. In aiming to foster the free movement of goods, this provision shares with numerous others the objective of creating a single, pan-European common market: a foundation of the Community-establishing Treat of Rome 1957 [3]. Keck’s interpretation of Article 34 and its contribution to this wider objective has been the subject of much debate. Here, after a brief summary of the key jurisprudence of the Court of Justice of the European Union (CJEU) leading up to Keck, the specific criticisms made in the given statement – regarding the “rigid distinctions” and “test of discrimination…in relation to restrictions on selling arrangements” to which Keck gave rise – will be discussed. It shall be seen that while both criticisms hold water, they can and have also been countered on various levels, with the conclusion that Keck in fact had an overall positive influence on the law within the area.

Summary of Article 34 jurisprudence leading to Keck

As mentioned above, Article 34’s direct purpose is to foster the free movement of goods by removing any obstacles to inter-state trade, reading: “Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States”. Although the concept of quantitative restrictions is not defined, here it simply means a limitation on the number of goods that can be imported by member states. As regards “measures having an equivalent effect” to quantitative restrictions on imports, again there is no formal definition, however in Dassonville the CJEU propounded a formula widely used since, that all rules within the EU “ capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having an effect equivalent to a quantitative restriction” .[4] Ultimately, Dassonville paved the way for the landmark case of Cassis de Dijon [5] which confirmed that as well as discriminatory measures, Article 34 also captures non-discriminatory measures. The rationale given by the court for expanding Article 34’s scope was that of “disparities between the national laws” of member states. [6] They reasoned that where imported products had to comply with regulations in both their home state and the state to which they exported this represented a disadvantage amounting to an obstruction to inter-state trade. Practically speaking, this distinction meant that regulations which required goods to be altered at the production or designing stage would normally be considered ‘dual burden rules’ whereas regulations concerning how the goods are sold would generally be ‘equal burden rules’, and Cassis suggested that only the latter would be excluded from the scope of Article 34.

Following Cassis, a number of issues came to the court, and while the CJEU generally adhered to the Cassis analysis as understood above [7], in several cases it did not.[8] One important example of the latter is the case of Torfaen Borough Council, [9] where the CJEU held that rules restricting shops from opening on Sunday could potentially be prohibited under Article 34, even though such a measure would clearly be an equal burden rule. Due to this such cases, and ultimately the divergence between these decisions and those found on the basis of the dual/equal burden distinction[10], many became concerned that the breadth of the Cassis test was too wide, that it was being abused, and effectively being utilised simply to protect the commercial freedom of traders rather than preclude obstacles to intra-community trade as such. [11] Keck attempted to rectify[12] this by explicitly propounding a further distinction between so called ‘product rules’ “such as those relating to designation, form, size, weight, composition, presentation, labelling, packaging” which it deemed to be prohibited by Article 34 and “selling arrangements” which it deemed prima facie would not. [13]

The distinction between ‘product rules’ and ‘selling arrangements’

The appropriateness of the distinction between ‘product rules’ and ‘selling arrangements’ is what the given statement calls into question., and this can only be assessed on the basis of its practical efficacy. In many cases the Keck distinction has been a success, dealing with complaints cogently. In Dinamic Medien[14], where the court held a rule in Germany placing restrictions on the sale of image storage media to young persons via mail order unless they had been reviewed as suitable and obtained a sticker to certified this was a ‘product rule’. They thus held it was prohibited by Article 34, reasoning that because it was a packaging requirement and also due to the fact imported goods of this nature would have to undergo a similar examination process in their home state such goods would be the subject of a dual burden. Similarly successful was Keck’s use in Familiapress [15], where an Austrian rule which precluded the sale of magazines containing prize competitions was argued to fall within Article 34. Despite the argument that the prize was simply a selling arrangement, the CJEU contended that it would require changes to made to the product itself and therefore impose a dual burden on imports, notwithstanding the fact the rule was not directly discriminatory.

However the problems with Keck can be seen where a rule does not seem to fit comfortable into either ‘rigid’ category. The case of Morellato [16] concerned a rule imposing a requirement that ‘bake-off bread’ (partially-baked bread, which needed a final cooking period before sale) be packaged and labelled before sale. As this requirement was binding prior to the sale, it was evidently not a selling arrangement. Nevertheless, the court found that the rule was not prohibited by Article 34 on the basis that it simply was not a product rule, due to the product itself not needing to be altered before the sale. Similarly, but resulting in a different conclusion, was the case of Alfa Vita. [17] Also involving bake-off bread, the rule under discussion here required the product to be prepared only in traditional bread making environments (including facilities redundant to the specific process such as a flour store and kneading equipment). Despite the fact that the restriction of the sale of a product to a specific environment is an archetypal selling arrangement, [18] the court found this to fall outside of Article 34 on the basis of it clearly not being a product rule, requiring the product to be altered in substance.

This shows that the assertion in the above statement is at least to some extent accurate. While the outcome of both Morellato and Alfa Vita is intuitively correct in terms of not preventing obstacles to inter-state trade, the court’s judgements and reasoning were effectively shoehorned into the Keck distinctions in a way not envisaged in the initial articulation. Many have criticised Keck [19] in these terms and ultimately claimed the distinction between the rules to be overly formalistic, too little attention paid to the effect of rules and too much to their form. This argument certainly has some traction, although it perhaps neglects to appreciate the fact that the distinctions, while formal, are premised on conclusions concerning the effect of rules.

The ‘Keck proviso’

The second part of the given statement refers to a section of the Keck formulation exclusively concerning selling arrangements, often referred to as the ‘Keck proviso’. This condition qualifies the presumption that selling arrangements should fall outside of Article 34’s scope by stating that this should be the case only providing that “ those provisions…affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States”

.

This condition effectively “amounts to introducing, in relation to restrictions on selling arrangements, a test of discrimination” as per the essay statement under analysis. In itself, this would not be a big development considering discriminatory measures are a priori captured in any case; however by stating “in fact” Keck propounds a wider test of indirect discrimination as regards selling arrangements.

The necessary investigations into fact resulting from the Keck proviso mean that often, the CJEU will defer to the national court after making an initial determination of whether or not a provision may fall within Article 34 should evidence be found. [20] Where the court considers itself to have a sufficient amount of market knowledge, it has decided on questions of fact, finding selling arrangements to fall within Article 34 by virtue of the Keck proviso. [21] In many cases however, a selling arrangement will be intrinsically discriminatory and will require little investigation by the court; such as cases where there is a restriction imposed on sales based on proximity, as other Member States will automatically be at a disadvantage. [22]

Whether the Keck proviso is ‘inappropriate’ as contended in the essay statement is unclear. Clearly, there are situations where selling arrangements rightfully fall within Article 34 and it makes good sense for this to be provisioned for. On the other hand, Advocate-General Jacobs, in his Opinion in case Leclerc-Siplec [23], opines that the element of discrimination, as reintroduced by Keck, is irrelevant because if a rule “hinders inter-state trade” it does so regardless of its effect on domestic trade. The issue with this is that hindrance to inter-state trade, as Jacobs refers to it, is difficult to define, this being the reason for some of the difficulties giving rise to Keck: that is, individuals using Article 34 to protect their commercial freedom as traders. Jacobs furthermore claims that irrespective of discrimination, selling arrangements will often have an effect on intra-community trade and that the difference between them and product rules was one of degree, not substance, dismissing the efficacy of the ‘rigid distinction’ approach. He thus proposes a test of“substantial hindrance to market access” [24]. This concept started to gain a following in the academic world, [25] and over time began emerging as a term in a number of cases in the area, culminating in the Motorcycle Trailers Case. [26] Rather than replacing the tests of Keck, Cassis and Frankovic, through the Motorcycles case the CJEU appeared to merely supplement them with the following: “any other measure which hinders access of products originating in other Member States to the market of a Member State is also covered by that concept” .[27] The notion of market access, while approved of by many has been unequivocally and comprehensively rejected as an improvement by others, Snell arguing that it adds nothing to the existing framework, collapsing to encapsulate either economic freedom or anti-discrimination. [28] The fact Bernard, in supporting the notion of market access, even goes so far as to concede measures such as “extreme limits on opening hours may well substantially hinder access to the market and so should breach [Article 34)”, illustrates the danger that the concept effectively takes the law back to pre-Keck days where Article 34 is effectively used to protect commercial freedom. [29]

Conclusion

Through the above analysis, it can be seen that while the given statement makes general criticisms of Keck that can be substantiated from one perspective, upon deeper evaluation, it is by no means a certainty that Keck’s tests are inappropriate. While its distinctions and proviso leave something to be desired and thus room for development, they represented a significant step forward in making the CJEU’s analysis and reasoning more cogent, if not drastically changing the likely outcomes of specific cases.

Bibliography

Bernard C, Fitting the Remaining Piece into the goods and persons jigsaw (2001) 26 ELRev. 35

Chalmers D, European Union Law, Text and Materials (Cambridge University Press 2006)

Chambers D, ‘Repackaging the Internal Market-The Ramifications of the Keck Judgment’ (1994) 19 ELRev. 385

Craig P, EU Law Text Cases and Materials (4^th edn OUP 2008)

Gormley L, “Reasoning Renounced? The Remarkable Judgement in Keck and Mithouard’ (1994)

EBLRev. 63

Snell J, The Notion of Market Access: A Concept or a Slogan?‘ (2010) 47 Common Market Law Review 437

Weatherill S, After Keck: Some thoughts on how to clarify the clarification‘, (1996) 33 Common Market Law Review 885

White E, In Search of the Limits to Article 30 of the EEC Treaty‘, (1989) 26 Common Market Law Review 235

Cases

Joined Case C-267, 268-91, Keck and Mithouard [1993] ECR I-6097

Case 8/74, Dassonville [1974] ECR 837

Case 120/78, Rewe-Zentrale AG v. Bundesmonopolverwaltung fur Branntwein [1979] ECR 649 (‘Cassis de Dijon’)

Case 75/81, Blesgen [1982] ECR 1211

Case C-23/89, Quietlynn [1990] ECR I-3059

Joined cases 60 and 61/84, Cinetheque [1985] ECR 2605

C-145/88, Torfaen Borough Council v B&Q plc [1989] ECR 3851

Opinion of Advocate-General Tesauro in case C-292/92 Hunermund [1993] ECR I-6787 Paragraphs 25-28

Case C-244/06, Dynamic Medien [2008] ECR I-505

Case C-368/95, Familiapress [1997] I-3689

Case C-368/95, Familiapress [1997] I-3689

Joined cases C-158 and 159/04 Alfa Vita [2006] ECR I-8135

C-391/92, Commission v Greece (“Infant milkaˆY) [1995] ECR I-1621

Joined cases C-34,35 & 36/95 De Agostini [1997] ECR I-3843

Case C-405/98, Gourmet International Products [2001] ECR I-1795

Commission v. Germany (Hospital Medical Supplies) [2008] ECR I-6935

Case C-322/01 DocMorris [2003] ECR I-14887

C-412/93 Leclerc-Siplec ([1995] ECR I-179

Opinion of AG Kokott in case C-142/05 Mickelsson and Roos [2009] ECR I-4273

This work was produced by one of our professional writers as a learning aid to help you with your studies

Five 600 word essays on business (Property) skills.

1. A Short essay (600 words) on commercial property leases explaining: “The most important points to note in a commercial lease”. (this is designed to develop your understanding of commercial property leases).

The first quality which should be present in any commercial property lease is synergy between the purposes permitted under the terms of the lease, (or that for which it has been used for ten years), and the planning permission which pertains to the property. The landlord should be able to prove the appropriate planning permission exists, whilst the tenant will be liable for bringing the premises into a state compliant with any contingent planning requirements, i.e. those introduced during the lifetime of the lease. (Freedman and Steele 1998: p.119) Considering the contemporary trends towards environmental control and improvement, this is no small consideration. The differences between a new lease and an existing lease should also be considered: generally speaking, a completely new lease is likely to generate less costs, fewer complications, and be contingent upon a shorter timeframe than an existing one. Further to this, the issues arising out of Security of Tenure must be carefully weighed: basically, this will determine whether or not the tenant will have the automatic right to a new lease when the existing one expires. The 1954 Landlord and Tenant Act prescribes protection for the tenant on satisfaction of the relevant conditions, i.e.,

• There must be a tenancy in the legally defined sense of that status – not a licence. • The tenant must occupy at least part of the leased premises. • Any such occupation must be, at least in part, for the purposes of the tenant’s business, as prescribed by the lease. However, if such occupation is only partial, the effect of this will be to limit the tenant’s new tenancy rights to those specific parts of the premises. (Lamont et al. 2005: p.4).

The tenant also has to consider the intensity, i.e. the continuity of their use of the premises: if the latter is not constant, they may be obliged to prove unbroken use through a prescribed legal test. (Lamont et al., 2005: p.14). The conventional commercial issues will also need to be considered, i.e. the length of the lease, the rent, whether or not a rent bond or guarantor is required, and whether or not Value Added Tax is chargeable on it. This will depend upon whether or not the landlord has elected to waive VAT exemption, in agreement with HMRC. (Freedman and Steele 1998: p.33)

Other key issues include responsibility for insurance(s), the presence of a ‘break’ clause allowing the landlord an early cessation of the lease, whether or not the premises may be underlet, and the intervals of any integral rent reviews. All of these sub-considerations need to be weighed carefully against the tenant’s future plans: for example, a clause permitting the user the assignation or subletting the premises does not completely absolve them from reference to the landlord. They may still be entitled to withhold their consent, even if the core purpose of the sub-lessee is in keeping with the original terms of the lease. (Freedman and Steele 1998: p.116)

The prospective tenant may need to pursue incorporation of the appropriate Schedule of Condition, taking into consideration any existing issues with the maintenance of the property: this is the means of avoiding the responsibilities contingent upon a ‘full repairing’ lease. This is, in itself, insufficient to ensure that all future maintenance liabilities are avoided, as they may also be incorporate into service charge clauses. It should also be borne in mind that, as long as they have complied with the regulations on the preconditions of liability, a landlord may be able to commute service charges into additional rent, and pursue recovery in the usual manner, i.e. through the courts. (Freedman and Steele 1998: p.50) As a tenant, you must also establish if the property provides you with everything you require in its unaltered state, or allow you the facility of making such changes as you may consider necessary, i.e. through variations or ‘licenses to alter’ within the lease? Yielding Up covenants may require that anything added to the premises during the lease is either left in place, or removed: either contingency may involve additional losses for the tenant. (Freedman and Steele 1998: p.103).

2. A Short essay (600 words) outlining the various approaches to Alternative Dispute Resolution and a reflection on its advantages in today’s UK market. (This is designed to assess your understanding of the range of methods available for resolving property disputes).

In discussing the various approaches possible within Alternative Dispute Resolution in the UK, it is first necessary to recognise the framework and developments which have informed the contemporary arrangements. The market for ADR services was prompted by the desire for – or necessity of – avoiding formal litigation. As such, the associated frameworks were given additional definition by the Civil Procedure Rules of 1998, as a result of which, ‘…ADR was specifically recognised for the first time at the heart of civil justice procedure, as a tool of active case management…’ (Mackie et al 2007: p.4). Through this means, ADR accrued much of its value to end users, in terms of cost reduction, flexibility, and timescale of operation. However, it should also be borne in mind that this same flexibility is reflected in the diffuse, protean, and comparatively informal or unstructured nature of many of the available ADR options: as Mackie et al. express it, there are ‘…many ways of defining ADR’. (2007: p.8). The more prominent may be identified as…

• Mediation, or a structured dispute resolution procedure, incorporating third parties, without a legally binding resolution, i.e. (Mackie et al. 2007: p.8).

• Evaluative Processes, such as Early Neutral Evaluation (ENE), Judicial Appraisal, or Expert Opinion: all of these are designed to clarify the issues involved at an early stage, and, if they cannot provide resolution, offer initial indication(s) of the likely outcome(s) of any further processes. (Mackie et al. 2007: p.13).

• Adjudicative Processes, ranging from the non-binding judgments of third parties, the use of applicable Ombudsman schemes, (to which both parties in the dispute agree), through to actual litigation.

• Hybrid Processes, i.e., Executive Tribunals, Mini-Trials, and Med-Arb. As Mackie et al. explain, ‘…Arb-Med may also be attempted, where the third party makes an arbitral decision but keeps it in a sealed envelope while switching to mediation, only revealing the decision if the mediation does not result in settlement.’ (Mackie 2007: p.14).

The nature of ADR with specific regard to property continues to evolve in proportion to the demands of the market, and the established precedents. For example, the repetition of similar kinds of disputes under Mobile Homes Act 1983 has led to their transfer to the Residential Property Tribunals as of April 2010. The intermediate status of the latter is illustrated by the fact that its decisions imply no enforcement powers: instead, possible contingent actions through the County Courts are at the discretion of the plaintiff party. As the convening Tribunal Service itself explains regarding its sub-committees, ‘…they are quasi-judicial bodies, which means that housing legislation has given them the powers to settle some disputes which would otherwise have to be dealt with by the Courts. They provide an easier and generally cheaper alternative to the Court system. (Residential Property Tribunal Service 2009).

In conclusion then, the advantages of ADR in the contemporary market may be regarded as those of…

• Cost: considerably lower, in comparative terms, than those of litigation. • Timeframe: shorter and considerably more flexible than those implied by involvement with the courts. This may be a major issue for parties involved in commercial, i.e. income-contingent outcomes. • Control: in ADR, both parties have the facility of involvement and intervention in the process, rather than being locked into the pre-defined procedures – and outcomes – of formal court proceedings. • Damage Limitation: the adversarial nature of litigation may permanently destroy relationships between parties which might otherwise been of commercial value in the future. • Self-Determination: both parties have the possibility of helping to construct creative and flexible solutions. • Confidentiality: the proceedings of a court hearing are a matter of public record, so sensitive commercial details cannot be protected.

3. A Short essay (600 words) identifying the nature of professional ethics together with examples of instances where these might be compromised. Include comment on problems outlined by speaker. Include a reflection as to how standards and attitudes have changed over the past 50 years. (This is designed to test your IT skills and to develop a sense of ethical standards and consumer protection).

Any reflection upon professional ethics undertaken at present, it is fair to argue, has to take account of two intersecting and conflicting pressures. In the first instance, there are the growing pressures for commercial organisations to act within the boundaries of corporate social responsibility and sustainability. In the second instance, there are the more recent developments to consider, i.e. the pressure for organisations and individuals to return to older protocols of profit maximization in the face of a recessionary downturn. When these two factors are combined, it becomes apparent that there are no simple answers as to what constitutes an appropriate system of professional ethics; in fact, it is likely that the definition would vary widely, depending on who was asked to provide it.

There can be no question about the fact that the bar has been raised immeasurably in terms of ethical expectations over the last fifty years. The number of FTSE 100 companies who publish their own standalone corporate responsibility reports continues to rise, indicating that professional ethics must not only be exercised – but be seen to be exercised. (Brewster 2007). In addition, organisations in sectors tinged by ethical lapses have begun to appoint ‘ethics officers’, both as a source of in-house expertise, and stakeholder reassurance. (Arnold 2007). Unfortunately, it is also the case that catastrophic ethical failures remain a feature of the corporate landscape, and in fact have become even more damaging. As Rosenthal indicates, these frequently extend to agencies who are responsible for the maintenance of standards. (Rosenthal 2007). However, if the history of ethical attitudes tells us anything of which we may be certain, it is that such attitudes are subject to constant change. As Conroy and Emerson point out, ethical attitudes have followed cyclical patterns, varying slightly from longer term trends, in a manner similar to the economy itself. Within this, attitudes are alternately decreasing, increasing, or changing in terms of their tolerance of un-ethical behaviour. (Conroy and Emerson 2008: p.907). In the present environment, it remains to be seen which side of the ethical equation dominant attitudes will support, i.e., the continual raising of standards, or a return to earlier protocols, such as caveat emptor. As Vickers has argued, it is likely that any new thesis will be followed, inevitably, by an antithesis, in ethical terms. (Vickers 2005).

It remains the case that professionals themselves, operating within real organisations and real business pressures, must themselves deliberate between all of the theoretical ethical models available to them. Altman, for example, is clear on the fact that, in terms of Kantian ethics, a corporation, or its officers, should have no other responsibilities than the raising of shareholder value. (Altman 2007: p.261). Fisher and Lovell meanwhile remind us that there are two basic categories of ethics: the ‘Consequentialist’, and the ‘Non-Consequentialist’. In the former, the ethical quality of any action is judged through its outcome; in the latter, the action is judged on its own virtues or merits. (Fisher and Lovell, 2006: p.101). If a ‘Consequentialist’ position is taken, then the individual must decide whether to pursue the general good, such as the best median outcome for the whole of society, or simply a good, such as the best business outcome for their organisation, regardless of the wider societal repercussions. (Fisher and Lovell 2006: p.131) However, if a ‘Non-Consequentialist’ position is adopted, then the professional must act according to whatever ‘Virtue’ ethics demands, i.e., judge what is right or wrong from ‘…predetermined principles and standards…’, regardless of the outcome. (Fisher and Lovell 2006: p.101). Ultimately, each professional practitioner and organisation must balance their own priorities and perspectives somewhere within this nexus of possibilities, judging what is right for their businesses and society as a whole.

4. A short essay (600 words) titled “The Current Property Market in the UK and Europe”.

Although it can justly claim to be the victim of forces beyond its control, the property industry in the UK and Europe is not entirely blameless with regard to the current malaise of the market. Before the collapse of the US sub-prime market, the European market for mortgage backed securities – dominated by the UK, was starting to see issues with securitisations amongst non-prime creditors, for example in the buy-to-let sector. (Davies 2006). Halifax Bank of Scotland alone successfully marketed ?500 million worth of mortgage-backed bonds during 2008. (Davies and Croft 2008).

More realistic lending practices and revenue expectations now appear prevalent: as Johnson reports, the average gross loan-to-value ratio was 24.1 per cent during 2009, down from 29.8 per cent in the previous year. (Johnson 2010). It remains debatable, however, whether property values or industry practices yet reflect a more sustainable outlook across the sector. As many analysts have indicated, current property prices are being maintained by two intersecting factors: a low rate of supply, and commensurately low interest rates. However, upward adjustments of the latter will, in all probability, place downward pressure on overall prices. (Leunig et al. 2010). Predicting the final trajectory of asking prices in the immediate future will also depend upon what happens to real disposable incomes, and in this respect, the portents are less than healthy. Although asking prices may begin to rise, it may also be the case that, with less money in general circulation, there will be a flattening out of historical trends in price-earnings ratios, and the cost of property will actually fall in real terms. The lenders’ preferred solution to this kind of impasse, i.e. the offering of ever higher loan to earnings ratios, may no longer be available: even though some banks are again offering six times salary advances, a return to the days of eight-multiple products appears unlikely. (Leunig et al. 2010).

Meanwhile, large property companies, such as Great Portland Estates, are seeing the effects of a UK recovery gradually appearing on their balance sheets: the latter’s ?1.2 billion portfolio saw an 8.7 per cent rise during the final three months of 2009, the best quarterly return for the company in three years. This has facilitated an 11.6 per cent growth in net asset value per share to 251 pence, whilst new purchases in the final quarter of 2009 have already accrued a 14.4 per cent increase in value, or 9.5 per cent net of costs. (Thomas 2010).

Despite such successes – notably in the capital and other select, higher value enclaves, the overall picture is a more complex one, with divergent trends and contrasting future prospects. For example, according to the IPD monthly property index, the UK commercial property market realized total returns of 22.2 per cent during 2009. (Thomas 2010) However, this encouraging statistic masks significant regional and sectoral differences in fortunes, of which the situation in retail property furnishes but one example. According to DTZ, one fifth of all UK shopping developments, with a combined tag of ?10.1 billion, is currently at risk of defaulting on credit agreements, due to a combination of falling earnings and values. (Thomas 2010). In fact, DTZ’s Mark Williams asserts that a mere one hundred of the UK’s eight hundred and forty retail developments could currently be regarded as ‘prime’ in real estate terms: he attributes this to a ‘huge overhang’ of poorer quality centres – a legacy of the 1980’s boom in development. With their twenty year leases nearing expiry, and outdated facilities becoming less attractive to hard-pressed retailers, their prospects are diminishing. (Thomas 2010) This situation exemplifies a number of similar situations in sub-sectors of the property market, where value and demand differ wildly: as Thomas expresses it in the Financial Times. ‘…There is a large and growing gap between the so-called secondary or tertiary real estate that fills the towns and urban areas of the UK, and the prime stock of well-located modern property producing income on a long lease that is the exception, rather than the norm.’ (Thomas 2010).

5. A short essay (600 words) explaining the basic principles of negotiation – “getting to yes”. (IT skills again – otherwise hopefully self-explanatory).

The idea that there are ‘principles’ which may be aggregated together to form a ‘best practice’ within negotiation is one forwarded by commentators such as Fisher, Ury, and Patton in Getting to Yes: Negotiating Agreement without Giving in, (1983). This in turn is predicated upon the ideas of ‘principled negotiation’ as developed by the Harvard Negotiation Project. (Fisher et al. 1983: p.xii). The collective trope which draws the principles together lays in the idea that purely positional negotiation, i.e. that conducted through the definition and defence of one’s own ‘position’, is ultimately a poor negotiating technique, and one likely to be counterproductive: ‘…As more attention is paid to positions, less attention is devoted to meeting the underlying concerns of the parties…’, and consequently, ‘…Any agreement reached may reflect a mechanical splitting of the difference between final positions rather than a solution carefully crafted to meet the legitimate interests of the parties.’ ((Fisher et al. 1983: p.5). The subsequent principles set out the means to avoid such a scenario through…

• Separating the people from the problem. • Focusing on interests rather than positions. • The invention of options for mutual gain. • The establishment of objective criteria.

The separation of the people from the problem does not quite equate to the ‘depersonalizing’ of the negotiating process: rather, it implies application of the appropriate relationship management skills. In simple terms, ‘…If negotiators view themselves as adversaries in a personal face-to-face confrontation, it is difficult to separate their relationship from the substantive problem.’ (Fisher et al. 1983: p.39). However, the exclusion of personal animosity is only part of this principle. The rest is composed of consciously maintaining the appropriate emotional responses, of understanding all of the related perceptions, the development of a relationship, and above all, the establishment of some degree of trust. As J.S. Mill proposed, somebody who knows only their own side of any debate or negotiation, knows little enough of that. (Mill 1843 Ch.2) In other words, achieving a negotiated solution relies upon the understanding of why and how the others’ position was established.

This leads into the next principle of negotiation, i.e. the need to focus on interests, rather than positions. Once the elements which are constructive of the other party’s position are understood and disaggregated, it is far more feasible to reach point of mutual agreement. As Fisher et al. point out, ‘…Fighting hard on the substantive issues increases the pressure for an effective solution; giving support to the human beings on the other side tends to improve your relationship and to increase the likelihood of reaching agreement.’ (Fisher et al. 1983: p.57). It is also the case that the clarification of issues is supportive of the next stage in the process, i.e. the invention of options for mutual gain. This involves considering the issues holistically and creatively, assembling all of the objective third party perspectives which might have some bearing, and, where expedient, involving a detached intermediary to assist in the facilitation of the negotiating process.

The fruition of these cumulative stages lays in the establishment of objective criteria through which agreement can be reached. By this stage, any emotional stand-off should have been neutralized, so that the participants know they are discussing issues, rather than their respective personalities: moreover, the real issues have been identified, and unhelpful or generalized positions have been deconstructed. Any unnecessary pressure or compulsion should also have been qualified out of the scenario, leaving only the most desirable and achievable solutions to suggest themselves. As Fisher et al. conclude, ‘…Shifting discussion in a negotiation from the question of what the other side is willing to do to the question of how the matter ought to be decided does not end the argument, nor does it guarantee a favourable result. It does, however, provide a strategy you can vigorously pursue without the high costs of positional bargaining.’ (Fisher et al. 1983: p.96).

Bibliography

‘ADR Now’ Website, (2009), [online]. Available at http://www.adrnow.org.uk/go/Section_1.html [Accessed 2nd February 2010]

Altman, M.C., (2007), ‘The Decomposition of the Corporate Body’, Journal of Business Ethics, Vol.74, No.3, pp.253-266, Springer, USA.

Arnold, M., ‘Private equity chief in warning on code.’ , Financial Times, November 18 2007, [online] (Updated 18 Nov 2007). Available at http://www.ft.com/cms/s/0/067ae5a2-9605-11dc-b7ec-0000779fd2ac.html , [Accessed 2nd February 2010].

Brewster, D., ‘Sustainability Report Seeks the Facts’, Financial Times, aˆ?Published: Dec 09, 2007, [online] (Updated 9 Dec 2007) Available at http://search.ft.com/ftArticle?queryText=sustainability&y=4&aje=true&x=13&id=071209000018&ct=0&page=2, [Accessed 2nd February 2010].

Conroy, S.J., and Emerson, T.L.N., (2008), ‘Ethical Cycles and Trends: Evidence and Implications’, Journal of Business Ethics, vol.81, pp.905-911.

Davies, P.J., ‘Traders refuse to be spooked as spreads on mortgage backed bonds hold steady’, Financial Times, 27 Sept 2006, [online], (Updated 27 Sept 2006] Available at http://www.ft.com/cms/s/0/2da00a4e-4e4f-11db-bcbc-0000779e2340.html [Accessed 30th January 2010]

Davies, P.J., and Croft, J., ‘HBOS returns to mortgage-backed bond market’, Financial Times, 21 May 2008, [online] (Updated 21 May 2008] available at http://www.ft.com/cms/s/0/80a77a04-26b8-11dd-9c95-000077b07658.html Accessed 30th Jan 2010]

Fisher, C., and Lovell, A., (2006), Business Ethics and Values: Individual Corporate and International Perspectives, 2nd Edition, FT/ Prentice Hall, London.

Fisher R., and Ury, W., and Patton, B., (1983), Getting to Yes: Negotiating Agreement without Giving in, Hutchinson, London.

Freedman, P., and Steele, K., (1998), Interpreting and Enforcing Commercial Leases, Jordan, Bristol.

Johnson, S., ‘UK property funds up 10 per cent’, Financial Times, 24 Jan 2010, [online] (Updated 24 Jan 2010] Available at http://financial-times.org/ [Accessed 30th January 2010]

Lamont, C., Seifert, A., and Stacey, M., (2005), Lease Renewal, RICS Books, Coventry.

Leunig, et al., ‘Property: Are residential property prices now fairly valued? Financial Times, 4 Jan 2010, [online] (Updated 4 Jan 2010) Available at http://financial-times.org/ [Accessed 30th January 2010]

Mackie K., Miles, D., Marsh, W., and Allen, T., (2007), The ADR practice guide: commercial dispute resolution Tottel, Haywards Heath.

Mill, J.S., (1843), On Liberty, Penguin, London.

Mintzberg, H., Ahlstrand, B., and Lampel, J., (1998), Strategy Safari: The Complete Guide Through the Wilds of Strategic Management, Prentice Hall, London.

Residential Property Tribunal Service Website, (2009), [online]. Available at http://www.rpts.gov.uk/our_services/services.htm [Accessed 30th January 2010]

Rosenthal, L., ‘LETTER TO THE EDITOR, Ratings agencies need to learn lessons from Enron’, Financial Times 27 Jun 2007, [online]. (Updated 27 Jun 2007) Available at http://search.ft.com/ftArticle?queryText=enron&y=2&aje=true&x=10&id=070627000938&ct=0&page=3 [Accessed 3rd February 2010]

Roubini, N., ‘Light at the end of the tunnel after a year of stagnation’, Financial Times, 23rd Dec 2008, [online]. (Updated 23 Dec 2008) Available at http://www.ft.com/cms/s/0/745b4f46-d090-11dd-ae00-000077b07658.html [Accessed 2nd February 2010]

Thomas, D., ‘Great Portland underlines property market recovery’, Financial Times, 21 Jan 2010, [online]. (Updated 21 Jan 2010) Available at http://financial-times.org/ [viewed 2nd February 2010]

Thomas, D., ‘Failing properties pose danger for market’, Financial Times, 25 Jan 2010, [online]. (Updated 25 Jan 2010). Available at http://financial-times.org/ [Accessed 2nd February 2010].

Vickers, M.A., (2005), ‘Business Ethics and the HR Role: Past, Present, and Future’, in Human Resource Planning, vol. 28, [online]. Available at http://www.questia.com/googleScholar.qst?docId=5009356449, [Accessed 2nd February 2010]

This work was produced by one of our professional writers as a learning aid to help you with your studies

The crime of breach of the peace in Scottish criminal law will be explained and it will be shown why the crime has been redefined in recent years. In doing so, various case law and academic opinion will be assessed and it will be shown whether there is a clear definition of such crime or whether it is rather confusing and difficult to establish because of the array of case law that has attempted to define such activity. It will be shown that the law in this area is somewhat ambiguous and produces many problems because of the broad definition of breach of the peace; however it is apparent that much of the case law has attempted to define such activity. Nevertheless, because of the differing decisions which have been produced finding that the offence has been committed it is somewhat difficult to identify whether a particular activity is a breach of the peace or not. Thus, it is apparent that more is needed so as to elaborate on the current definitions stating what should and should not amount to such a crime.

Scotland’s criminal law relies heavily upon the common law, including the public order offence of breach of the peace. This offence was created in order to remove violent offenders immediately from a scene so as to ensure that they keep the peace. It has been noted by Christie that; “so far as offences against society are concerned, breach of the peace is perhaps the most broadly defined and frequently used” and that “it covers almost any kind of anti-social behaviour, so long as it is likely to create fear, alarm, annoyance or upset among the general public.” Nevertheless, such a broad definition of breach of the peace causes many problems and difficulties within this area of the law and it is uncertain whether a particular activity will be an offence or not, thus the person who is committing such an offence may not be aware that they are doing so. This evidentially causes much ambiguity and creates harsh debates on this topic.

In accordance, it seems that in many instances the offence of breach of the peace contravenes with ones Human rights under article 6 of the European Convention on Human Rights. Thus, it is provided in this article that the accused must be “informed, promptly, in detail and in language which he understands of the precise nature of the charge against him.” Yet, because of the broadness of the offence it is questionable whether art 6 can be ascertained. Nevertheless, it was argued in the leading case of

Smith v Donnelly

that the offence was also a breach of article 7 which provides that “no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law.” However it was held in this case that the offence of breach of the peace did not in fact contravene with this article. Here it was stated by Lord Coulsfield that; “there are many ways of committing breach of the peace and it is neither possible nor desirable to derive a comprehensive definition, yet the accused must be shown to have engaged in conduct serious enough to alarm ordinary people and threatened to cause serious disturbance in the community.”

Still, it is apparent that regardless of the attempts which are made to define the offence, because of the wide ranging scope, it is clear that there will be some uncertainty and confusion in this area. What’s more, it is questionable how a person can be guilty of such an offence where they are not aware of doing so. However, the extensive case law over the years have gave some inclination of what kind of activity would amount to breach of the peace which gives some sort of idea what it shall consist of. In

Saltman v Allan

it became understandable that swearing and shouting would amount to such an offence as also in the case of

McMillan v Normand.

Yet, in

Rafaelli v Heatly

peering in at lighted windows was found to be an offence and in

Wyness v Lockhart

stopping people in the street and asking for money was. Arguably, it does however seem that the extensive array of cases do not exactly give a definition per se as it seems that any type of behaviour can amount to breach of the peace. What’s more, begging in the street is not an offence, yet asking for money is which is rather absurd and creates further uncertainty.

Still, it is felt by many that the offence of breach of the peace is essential in ensuring that there is adequate protection available for the public. This was exemplified by Black who argued that; “private rights are balanced against the general interest of the public since there would be chaos if individuals were allowed to do what they pleased.” Yet it was also said that; “these breach of the peace decisions illustrate that various public rights affect the privately owned solum of roads.” In effect, this suggests that although it is vital that the public are protected by having breach of the peace offence, it must also be ensured that individual’s rights are protected who are in their own private areas. Whether this is effectuated however remains doubtful and it seems that any activity can amount to breach of the peace and it seems to be a matter for the courts to decide upon by a case by case basis.

Nevertheless, the law in this area is certainly better than it was previously and it seems that there has been a redefining of the definition over the years. Whether this has in fact worsened things, nonetheless is arguable since it seems to have caused much confusion and uncertainty. Historically it was apparent, however that for an offence of breach of the peace “it was not necessary to be alarmed in the sense of personal fear, but alarm lest if what is going on is allowed to continue it will lead to the breaking of the social peace” as in

Ferguson v Carnochan.

Accordingly, it is evident that the definition of breach of the peace has changed over the years, yet it is also apparent that the law still produces uncertainty. What’s more, it is somewhat difficult for the mens rea element in this offence to be established and in many instances it cannot be. This is because persons may not have believed that they were committing an offence because of the wide scope of its application and so the mens rea may not be present, yet they can still be convicted of the offences. Thus, it has been noted by Bonnington that; “Many academic commentators doubt if there is any need for proof of mens rea in a prosecution for breach of the peace. The normal approach of the Scottish courts is that mens rea can be inferred from all the facts of the case. There need not be specific proof about the accused’s motives or intentions.” This does not however seem plausible and unless there is a clear definition of what will and will not amount to a breach of the peace, there will continue to be ambiguity and uncertainty produced in this area of the law.

Overall, it is apparent that the crime of breach of the peace has been redefined over recent years, yet it seems that the law in this area is still in a state of disarray. This is because it is unclear whether a particular form of activity will be an offence of breach of the peace or not. As such, it seems rather unconscionable in situations where a person is lacking the mens reas because of the fact that they were not aware that they were committing an offence, yet they are criminally liable. In effect, it seems that more definition is needed on this offence so persons can have a greater idea of what will constitute the offence. Although, the case law gives some inclination, it seems far too wide ranging to give an adequate view and as such it seems that much is needed so as to ensure clarity and certainty within this area of the law.

Bibliography

Books

Christie. Introduction to Scots Criminal Law, Longman, (2003).

Journals

Black. A, Establishing Public Passage Rights, Journal of the Law Society of Scotland, (1991) 36JLSS 158, (April, 1991).

Bonnington. A, Stalking and the Scottish Courts, New Law Journal, 146 NLJ 1394, Issue 6761, (27 September, 1996).

Cases

Ferguson v Carnochan
McMillan v Normand
Rafaelli v Heatly
Saltman v Allan
Smith v Donnelly
Wyness v Lockhart

This work was produced by one of our professional writers as a learning aid to help you with your studies

Critically analyse the way the courts have developed and limited the law in relation to claims for psychiatric harm by secondary victims

Introduction

There has been judicial comment in Australia that in relation to claims for psychiatric harm, the law has progressed haphazardly or pragmatically rather than logically or scientifically: [1]

“The ways in which the law of liability for nervous shock has been developed by courts in England and here, and extended to new situations, have been empirical, with results and limitations that appear as pragmatically rather than as logical applications of principle.”

The development of the common law in Australia in relation to secondary victims, particularly under the law of negligence, has seen a gradual liberalising or expansion of the categories for recovery in recent years, most notably in the High Court decisions of Tame and Annetts

[2]

and Gifford

[3]

. This has, to some extent, been in response to a traditional reluctance by the Courts to allow secondary victims to recover for mental due to a perceived flood of imaginary claims. [4]

The view used to be held that ‘nervous shock’ without physical symptoms was not compensable at law, but it has long been recognised that mental harm has the same status in torts law as physical harm. [5] A secondary victim is understood in this context to mean a person who suffers a ‘recognisable psychiatric injury’, [6] typically as a consequence of perceiving injury to another, but not necessarily at the impact scene or its aftermath.

The fear of an avalanche or flood of mental harm cases led to policy restrictions or control mechanisms being imposed, including that the secondary victim must suffer ‘sudden shock’, be a witness to the accident scene or its aftermath’, or be in a relationship having close ties of love and affection with the primary victim.

The view that that the conditions for recovery have been unduly restrictive and led to arbitrary decisions seems to have been exacerbated by a lack of predictability in the common law applying said control mechanisms, as well as by a lack of uniformity on the part of the State and Territory legislatures in responding to the ‘insurance crisis’ of 2002, which sparked fears that the law was moving too fast to award damages to new classes of plaintiff. [7]

The foregoing matters will be discussed under the following headings:

1. Requirement of Sudden Shock

2. Requirement of Proximity

3. Requirement of Relationship

4. Foreseeability – Person of ‘Normal Fortitude’

5. Statutory Restrictions

Conclusion.

1.
Requirement of Sudden Shock

The first control mechanism restricting recovery for both primary and secondary victims is the requirement that there can be no liability in the absence of a sudden shock to the nervous system. [8] The limitation can be traced back to Brennan J’s interpretation of the case law in Jaensch v Coffey [9] and has been applied in numerous subsequent decisions. [10] However, there are exceptions to the general principle such as the ‘work stress’ cases [11] and ‘fear for the future’ cases. [12] The shock must in reality be a psychiatric illness of a lasting and clinical nature. It is clear that from the 1970s judges have required plaintiffs to be suffering a ‘recgonisable psychiatric illness”, [13] (although McHugh and Callinan JJ in retain the use of “nervous shock” in Tame and Gifford [14] ), in order for the harm to be compensable. Medical consensus suggests that lasting damage does not occur in ‘normal’ individuals. [15] It is therefore inappropriate to insist that an immediate reaction such as a sudden sensory perception be a prerequisite to recovery. This was the conclusion reached by a majority of the High Court in Tame. [16] However, the sudden shock rule remains relevant as a factor in determining whether psychiatric injury was reasonably foreseeable, as subsequently confirmed by the Civil Liability Acts. [17] The sudden shock rule is perhaps a striking example of the pragmatic and unscientific development of the common law. It is possible that this principle may yet operate to deny recovery or at least will operate unpredictably, turning upon the particular facts and evidence of each case.

2.
Requirement of Proximity

The common law has, however, gradually relaxed the restriction that, in order to recover, the plaintiff be present at the impact scene. [18] That process began in 1925 with Hambrook v Stokes in which a mother recovered for shock she suffered from fear for her own and her children’s safety from a runaway lorry. [19] The requirement that the plaintiff had to be present at the scene and witness the accident was gradually extended to witnessing the aftermath at the scene, extended to witnessing the aftermath at hospital during the immediate post-accident treatment. [20] The High Court suggested in Jeansch [21] that absence by the relative from the accident scene might not be a bar to recovery. In Annetts, [22] the Court finally removed the direct perception requirement as a bar to recovery. The aftermath requirement would always be a limitation in borderline cases, penalising family and friends who are too affected by shock and grief to go to the scene or a bar where there is no aftermath or no scene to perceive (as in Annetts, in which the body was not discovered at the time of the shocking event). [23]

However, the gradual innovation of the common law has been complicated by the legislative response to the insurance crisis of 2002. The Civil Liability Acts (and variants) were legislated in each jurisdiction as a response to perceptions that the common law was moving too fast to allow new classes of plaintiffs to recover, including secondary victims. [24] Earlier legislation [25] provided that family members (other than parents, spouse and close family) were required to be within sight or hearing of the accident in order to recover. [26] Under the common law, that requirement was effectively removed as a condition for recovery by the High Court in Annetts and Gifford. At the time of the Gifford decision the Civil Liability Act 2002 took effect which excludes compensatory recovery for a person who is not a witness at the scene nor a close family member. [27] Yet similar provisions of other States do permit recovery for a plaintiff who witnessed the immediate aftermath [28] , or who was ‘present at the scene.’ [29] The civil liability provisions differ across jurisdictions creating disunity and much less predictability across Australia for secondary victims who suffer mental harm.

3.
Requirement of Relationship

Another limiting factor is that the plaintiff must have a close tie of relationship or care with the primary victim. Relationship is likely to lead to a conclusion in which there was foreseeability (which appears to be the predominant view in the UK authorities). [30] However, it is just as foreseeable that a harm could be suffered by those unrelated to the primary victim. Thus in Australia, Deane J in Jaensch was of the view that close ties of love and affection should override the direct perception limitation on reasonable foreseeability. [31] It is clear from Gifford that the absence of a pre-existing relationship is not a bar to recovery. [32] Involuntary participants is another category in which the shock stems from an apprehension that the plaintiff is the involuntary cause of injury to another. [33]

Legislative reforms introduced as a result of the insurance crisis of 2002 has complicated the picture. For example, the Civil Liability Act 2002 (NSW) restricts the class of plaintiffs to a “close member of the family” (parent, spouse, partner, child, stepchild, brother, sister, half-brother, half-sister, step-brother/sister) [34] , in contrast with earlier legislation which said that the defendant’s liability extended to those cases, and also to “any other member of the family” who saw or heard the plaintiff injured or put in peril. [35] Yet, somewhat haphazardly, the categories of potential claimants differ across jurisdictions. In Victoria, for example, the plaintiff must be or have been in “a close relationship with the victim”. [36] Yet “close relationship” is not defined, leaving it open for the courts to interpret the categories more expansively beyond family relationships to perhaps those with “close ties of love and affection” [37] as giving rise to a duty of care.

4.
Foreseeability – Person of ‘Normal Fortitude’

The doctrine that the shock must have been foreseeable to a person of normal fortitude acts as a control mechanism against unduly burdening human activity by indiscriminate claims of exposing others to the risk of mental harm. Such claims could interfere with otherwise tolerable conduct, such as making a loud noise which could cause a person peculiarly vulnerable to suffer shock. [38] Yet the onus of proving a special vulnerability lies on the defendant [39] who takes the victim as they are found. [40] However, the normal fortitude test has been criticised as unscientific and impracticable to apply, as it depends upon arbitrary judge-made distinctions as to what is ‘normal’ along a ‘slippery slope’ of psychiatric abnormality. [41] Yet under negligence law the foreseeability test is necessarily concerned with a balancing exercise by the Courts to assess whether a reasonable person would recognise an act or omission as posing an unreasonable risk of harm to a normal person [42] . The Courts do not insist upon foreseeing the specific kind of psychiatric damage, rather, if compensable mental harm is foreseeable, the predisposition is necessarily included. [43] Thus the High Court in Tame clarified the fortitude principle by establishing that the test is merely one consideration within reasonable foreseeability. [44] Whilst that consideration did not alter the outcome in Tame, it seems a sensible solution to a complex problem.

5.
Statutory Restrictions

However, statutory law has returned to the old test in respect of ordinary fortitude. At the time of the Tame decision in 2002 there was a nationwide concern as to the way in which the law of negligence was operating in personal injury cases, with the effect of driving up insurance premiums and making it difficult to obtain liability cover (eg. in the practice of medicine). The Commonwealth Government appointed a panel to review the law of negligence and the resultant report recommended greater restrictions to recovery in some areas. In the area of foreseeability of mental harm to primary and secondary victims the panel urged that:

“a person (the defendant does not owe another (the plaintiff) a duty to take care not to cause the plaintiff pure mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances, suffer a recognised psychiatric illness if reasonable care was not taken.” [45]

Civil liability legislation in six Australian jurisdictions subsequently adopted a general principle which closely resembled this formulation. [46] The principle that if the defendant knows or ought to know that the plaintiff is a person of less than normal fortitude is specifically preserved. However, the re-formulation by eh High Court in Tame is pointedly ignored. The change in the law effected is to limit the principle that where a plaintiff suffers personal injury, there can be recovery for all consequential harm, physical or mental. That limitation had not previously been imposed by the common law and is viewed as a way of reducing the size of damages awards. [47] The result of these legislative reforms in response to the insurance crisis is that Australian personal injury law restricts recovery to claimants previously classified by the common law as deserving in a range of situations, but in a way which is far from consistent across jurisdictions.

Conclusion

In many ways, the common law has developed incrementally in the area of psychiatric harm by showing innovation. For example, in Tame and Gifford in removing the proximity requirement and focussing more on the relationship between primary and secondary victim as the touchstone for reasonable foreseeability. In that sense, the common law has come a long way since the Coultas decision in recognising the particularly devastating nature of psychiatric injury. However, such developments are coloured by the response of the legislatures to the insurance crisis of 2002. The Civil Liability Acts across the Australian jurisdictions are characterised by a lack of consistency and uniformity in approach, and in some cases went beyond the recommendations of the panel Report. For example, seemingly outdated legal rules such as the ‘sudden shock’ requirement persist, and a person unrelated to the plaintiff present at the aftermath may be permitted to recover damages for psychiatric harm in Tasmania, but not in New South wales. This disunited and unsatisfactory state of Australian law will await a legislative solution in the future, and will continue to pose challenges for the Courts as they proceed “step by cautious step” to develop the foregoing policy considerations in ways which will deliver appropriate and just outcomes for deserving secondary victims.

Bibliography

Butler, D. A ‘Kind of Damage’: Removing the ‘Shock’ from ‘Nervous Shock’. Torts Law Journal, 5, 255-275.

Butler, D., Identifying the Compensable Damage in “Nervous Shock” Cases. Torts Law Journal, 5, 67 – 87.

Butler, D. 2002. Employer liability for Workplace Trauma. Aldershot, UK. Ashgate.

Dietrich, J. 2003. Nervous Shock: Tame v NSW; Annetts v Australian Stations. Torts Law Journal, 11, 1-9.

Foster, N. 2004.Psychiatric Injury Following Workplace Trauma or Death: Actions by Fellow Workers and Relatives in New South Wales. Tort Law Review, 12, p. 59.

Handford, P. (2006) Mullany and Handford’s Tort Liability for Psychiatric Damage. Sydney. Lawbook Co.

Handford, P. 2012. Wilkinson v Downton: Pathways to the Future? Tort Law Review. 20(1) 145-162.

Hilson, C. 1998. Nervous Shock and the Categorisation of Victims. Tort Law Review, 6, 37-55.

Luntz and Hambly 2006. Torts: Cases and Commentary. Chatswood. LexisNexis Butterworths.

Mendelson, D. 1998. The Interfaces of Medicine and Law: The History of the Liability for negligently caused Psychiatric Injury (Nervous Shock). Aldershot. Ashgate.

Mendelson, D. (2010). The New Law of Tort. South Melbourne. Oxford University Press.

Sappideen, C. and Vines, P. 2011. Fleming’s The Law of Torts. Sydney. Lawbook Co.

Teff, H. 1996. The Requirement of ‘Sudden Shock’ in Liability for Negligently Inflicted Psychiatric Damage. Tort Law Review, 4, 44-61.

[47] The statutory preference for the term ‘recognised’ rather than ‘recognisable psychiatric illness’ is a further

This work was produced by one of our professional writers as a learning aid to help you with your studies

Scenario:

The Herbert City Council owns a Olympic Pool and Training Centre which is managed by a Mr Samuel Phlipper. Until February 18, 2011 the facility had been used by both the Under Water Hockey Federation of Australia and the National Synchronized Swimmers’ Association. This has been possible because, up to now, the national teams of the respective associations have not made heavy use of the only available time in which the pool is closed to the public, that is, from 6:00am to 8:00am. Both groups have now decided to use Herbert as the base for their Games training programmes and, as a consequence, they are claiming the right to the full two hour session every day. Both parties assert that priority usage agreements have been signed with the Herbert City Council. Mr Phlipper is not willing to extend the hours at which the pool is open because this would incur excessive . overtime costs and any variation of hours would not only inconvenience him but would impact on the use of the pool by the general public. In addition to the dispute over the use of the pool itself, the two groups have become increasingly antagonistic. The all male Under Water Hockey Squad objects to the ‘bee-bop’ music played by the synchronized swimmers and claim that discarded hair pins and dislodged nose pegs left on the floor of the pool have caused the hockey players to sustain minor injuries during practice. For their part the women swimmers have taken offence to pictures of scantily clad females which have been placed in communal areas by the Hockey Squad and at the frequent remarks with sexual innuendo made by the Hockey Squad members. The men also have a record of leaving equipment around the pool and expecting the women to clean up at the end of the training sessions.

Question 1

Identify the parties’ issues and interests. The two teams nominate a representative to attempt a resolution of the issues through direct negotiation. The President of UWHF, Chuck Fitzpatrick, is concerned not to appear sexist, and is very keen to appease the women’s team. The representative of the non-hierarchical swimming squad, Ms Georgia Douglas, has been democratically elected because she is a person who can be relied on to hold firm to an agreed position. She does not intend to move from her bottom line. Her team must be guaranteed priority usage and all the offensive material must be removed from the pool complex.

This factual matrix revolves around a dispute between the key parties, the Under Water Hockey Federation of Australia, the National Synchronized Swimmers’ Association and the Herbert City Council and its manager Mr Samuel Phlipper. It arises over the two teams’ assertion to use the pool in the two hour time slot that it is closed to the public, each claiming a contractual priority right to the pool at this time.

Additionally, just as with most disputes, alongside the major issue there are secondary issues arising either directly out of the major issue or as a result of the antagonism between parties. These include having the pool closed for more than two hours in the morning [Mr Phlipper’s concern]; the ‘bee-bop’ music and discarded hairpins and dislodged nose pegs [The Hockey Squad’s concerns]; the pictures of scantily clad women placed in communal areas, the sexual innuendo and leaving pool equipment to be put away by the ladies [concerns by the Swimming team about the men’s behaviour] and last but not least the antagonism between the teams and the attitude of the Swimming team and their representative to the Dispute Resolution process. The pool’s public clientele are also a party, albeit minor. Though they do not have an ‘issue’ as such, they none the less have an interest which should not be completely ignored.

The aim here as with any form of negotiation, is to reach a solution as satisfactory as possible for all, within the attendant resource boundaries. Quintessentially, “[N]egotiating is a basic means of getting what you want from others. It is back and forth communication designed to reach an agreement when you and the other side have some interests that are shared and others that are opposed.”¹ Note that the operative word here is ‘interests’. That is, not what the parties want, but why they want it.

Aside from a concern for the public interest noted already, Mr Phlipper’s personal interest is in avoiding excessive overtime fees and the inconvenience of having the pool open for longer. The Under Water hockey Squad’s interests are impliedly, a desire to maintain an attitude and behaviour of male superiority and /or the area as totally their own, avoid minor injuries and it would seem common sense that Chuck [as the team’s President] would have an interest in maintaining the Squad’s reputation and/or want damage control on behalf of the Squad. The Synchronised Swimmers interests are not to have to deal with the Hockey Squad’s sexist attitude and behaviour and expectations.

Just as with the President of the UWHF, the representative of the Swimming Squad also has an interest however her interest is in being positional. That is, she is focused on making sure that a certain outcome is achieved rather than in fulfilling the interests of the team. This is clear since it is stated that “Ms Georgia Douglas, has been democratically elected because she is a person who can be relied on to hold firm to an agreed position. She does not intend to move from her bottom line.”² As mentioned above, this creates a tangential issue, interalia, because of the difference in power that can be created by the differing approaches to the negotiation.

As noted earlier, a vital, almost inherent component to any successful negotiation is a concentration on the parties’ interests. Mackie in his book reviewing different negotiation strategies notes clearly that although there are different personality types resulting in different negotiating strategies and some more productive than others, position bargaining really has no place in negotiation . ³ “Ineffective competitives, however were described as irritating, headstrong, unreasonable, arrogant and obstructive, lacking the perceptiveness and realism of the effective competitiveness – ‘The problem of the ineffective/competitive is relatively easy to define: he is obnoxious’”. ⁴

Question 2

Advise Chuck on negotiation strategy and how he might deal with Georgia. The negotiators make little progress, so the two representatives decide to request a meeting with Samuel Phlipper. The sticking point appears to be that both teams must have 1 ? hours each in order to prepare, train and shower afterwards.

A brief discussion of the different types of negotiation techniques available to Chuck in the circumstances, with their possible outcomes and recommendations, will be undertaken, in order to more thoroughly advise Chuck on the strategy he might use to deal with Georgia.

There is no ‘one and only way’ to negotiate. Since personalities differ, negotiation styles and their adjunct strategies will also differ. Whether shy, competitive, demanding, accommodating, compromising, bullying or retiring, all of these will affect the way in which we deal with others and so too the way we negotiate. In essence however, these can be boiled down to two main approaches as very briefly alluded to earlier, the competitive adversary and the co-operative problem solver.⁵

Following the style of the problem solver, the Principled Negotiation concept and its accordant strategies, which arguably changed the landscape in the area of Alternative Dispute Resolution, was introduced by Fisher and Ury in the 1980’s.⁶ This system has been tested and found to have a higher success rate with 59% of negotiators using this manner being effective whilst effectiveness with the adversarial model was only 25%.⁷ Furthermore, a follow up study found time the effectiveness of adversarial bargaining continuing to decline, being only 9% at the time the later study was conducted a decade later. ⁸

There are five founding principles to this approach. The first step is to deal with the problem, not the people. The parties should direct any frustrations at the problem not each other and work together rather than being distracted by misdirected emotions and communication. The problem should be ‘the bad guy’ not the other party. The second and arguably most important point is, as was already explained, looking at the parties’ interests – what is behind what they ask for? Concentrating on this allows step three to almost flow naturally, that is, brainstorming to arrive at win/win situations instead of demanding certain outcomes. The fourth element is important to ensure that all parties are confident that the outcome was fair and this can be achieved through solutions based on objective standards. Lastly but by no means least is the BATNA – ‘Best Alternative To a Negotiated Outcome’. This simply means doing the requisite preparation and knowing exactly what your bottom line is before you go in. As opposed to a positional stance, this is not what is brought in at the start and demanded but rather something each party is aware that beyond this point any agreement would be unworkable.

Given the success rate of the problem solving approach to negotiation, Chuck should normally be advised to take this approach. However, despite its success rate and as mentioned previously, sometimes there are obstacles, and in this case it is Georgia’s adversarial approach. Numerous authors who commend the work of Fisher and Ury none the less state that different strategies need to be employed when a co-operative negotiator must deal with an adversarial party, making the playing field uneven.⁹

It is the opinion of this author that Principled Negotiation should still form the foundational strategy of Chuck’s approach since ultimately this technique also aims to ensure satisfaction as much as is possible for both sides, and as such is most likely to mean a more enduring solution.

However rarely are negotiations purely co-operative and to do so here is, paradoxically, likely to be naive and counter-productive. ¹⁰ Therefore it is recommended that some further strategies also be employed. Wade points out in his article on strategies for difficult negotiations that the party making the first offer and the content of that offer are two very vital considerations. ¹¹ It is suggested here that Chuck’s desire to appease the women’s team, well intentioned as it is, not be allowed to result in Chuck’s premature agreement. This is pivotal; a certain amount of delay may be necessary to allow room for thought.

Given that they are both in training, it seems likely that a competition of some sort is approaching for both teams and therefore possibly suggesting to Georgia that her unwillingness to even discuss ‘her position’ could cost them both a great deal of time, may also help. McLean when discussing difficult people posits that “[A] helpful strategy is to agree with the superficial complaint but then direct attention to the matter of costs and that perhaps there is something to be gained by compromise”. ¹²

McLean also notes that it might also be important for Chuck to consider a way of allowing Georgia ‘to save face’ without letting go of anything that falls below the teams bottom line.¹³ Since the sticking point is the actual time required to use the pool it seems that the Under Water Squad may be willing to amend the ‘offensive’ behaviour and this could be used by Chuck as a sign of compromise and allows Georgia the opportunity to show she has still managed to at least secure part of the girls ‘demands’. ¹⁴

Question 3

Samuel is faced with a number of impasses and at least one difficult person. Identify them and suggest strategies he might use at the meeting.

The Impasses and People

The impasses seem to ultimately be that both parties need use of the pool for at least an hour and a half but it is only open for 2 hours each morning. A change in the behaviour of the men’s team and the nose pegs, hairpins and bee-bop music of the women’s team were an issue but these seem to be negotiable since we have been told that the ‘sticking point’ is the time for use of the pool so it seems these are no longer impasses. Opening the pool for longer will affect Samuel and the public interest and incur excessive overtime costs and though this is not a major impasse, it none the less still needs consideration and last but not least as pointed out earlier, Georgia is demanding that her team have priority use of the pool making her a more difficult person to deal with.

The Strategy

Samuel is brought in for a meeting with the two teams. His strategy will be largely determined by his role. If we are to take this scenario at face value, then Samuel would not be considered a neutral party since he does have an interest in and to a great extent, power over, the outcome of the dispute. Therefore the most obvious role of just mediator is highly unlikely. NADRAC,¹⁵ the main governmental body overseeing Alternative Dispute Resolution in Australia explains that Mediationis a process in which [T]he mediator has no advisory or determinative role in regard to the content of the dispute or the outcome of its resolution , but may advise on or determine the process of mediation whereby resolution is attempted. ¹⁶

Therefore Samuel is most likely to be acting in a hybrid process described by NADRAC as follows,

Combined or hybrid dispute resolution processes are processes in which the dispute resolution practitioner plays multiple roles. For example, in conciliation and in conferencing, the dispute resolution practitioner may facilitate discussions, as well as provide advice on the merits of the dispute. In hybrid processes, >such as med-arb, the practitioner first uses one process (mediation) and then a different one ( arbitration).

The strategy therefore is likely to be one of combined mediation, negotiation and quazi adjudication, the last role arising out of the power he has to determine the other two parties’ contractual rights giving him the power essentially to ‘adjudicate’ the matter. In Capolingua v Phylum, costs were not awarded to the winning party despite the rule that costs follow the event because of the winning party’s unnecessary protraction of the matter. ¹⁷ One important factor about the inclusion of Samuel and his adjunct authority is his ability to control the outcome by taking Georgie’s power to insist on her position out of her hand whilst simultaneously helping her ‘save face’.

Samuel’s best plan considering the interest of both parties could be to try to negotiate separately with each party first to see if they are willing to do alternate days, which would avoid Samuel having to keep the pool open for longer with its consequent problems. Should this fail, he could suggest the option that the pool be open for an extra hour at the end of every day for the public, in place of keeping it open for the extra hour required in the morning to accommodate both parties. This would be on the basis that both parties are willing to share the extra cost and inconvenience of having the pool open and possibly opening it themselves. As noted earlier, if no agreement could be reached, Samuel is in opposition to make a final determinative decision.

References

This work was produced by one of our professional writers as a learning aid to help you with your studies

A Brief Literature Review and Self-reflection on the Critical Period Hypothesis

Introduction

Is there really an ideal age at which second language learning should begin? Is there only a slim chance for an adult learner to master a second language? These thought-provoking questions arising from the Critical Period Hypothesis, as well as the interesting phenomena relating to the hypothesis that occurred during my life as a teacher make it the focus of discussion of the essay.

The Critical Period Hypothesis: A highly debatable issue

One prominent proponent of the Critical Period Hypothesis (CPH) was Eric Lenneberg (1967), who based his hypothesis on neurological development. He explained that there is a maturation process called cerebral lateralization, during which the brain loses its plasticity as it gradually matures.

This process, starts at around two, is supposed to be completed at puberty, after which it is very difficult or even impossible for a learner to successfully acquire a new language. The CPH has been widely discussed in the area of second language acquisition (SLA) and has aroused much controversy.

The CPH is most closely linked to the acquisition of the phonological system. As put forward by Scovel (1988), it is not possible for learners beyond the age of 12 to attain a native-like pronunciation though they might be able to master the syntax and vocabulary of a second language.

A similar view regarding phonological attainment was propounded by Flege and Fletcher (1992, p.385). They concluded from their studies that ‘a foreign accent first emerges at an age of L2 learning of between 5 and 8 years’, which probably implies, in the domain of phonology, that the ‘critical period’ ends even earlier than what Lenneberg proposed. This coincides with later studies conducted by Krashen (1973), who claimed that lateralization is completed at around age 5.

Mark Patkowski (1980) conducted a study on how the age factor is related to the acquisition of linguistic features other than accent. The findings further supported the CPH as the results indicated that the age factor is very important in a sense that it limits the learner’s development of a native-like mastery of various linguistic features of a second language. Jacquline Johnson and Elissa Newport (1989) also carried out a study relating to the rules of English morphology and syntax and found that those earliest starters got the highest scores on the grammaticality judgement test.

Despite some clear evidence that supports the CPH, a remarkable research undertaken by Catherine Snow and Marian Hoefnagel-Ho_hle (1978) provided evidence against it. The findings revealed that both adolescent and adult learners could surpass the children learners by making enormous and rapid progress in a wide range of language knowledge. White and Genesee (1996) also revealed in a grammaticality judgement task that late starters are able to achieve near-native proficiency.

Robert Dekeyser (2000) done something along the line of Johnson and Newport and found that adult and children might have different way in learning language.

Insights gained from the CPH: A Self-reflection

Taking into account what I have explored from the literature review, I do believe that the evidence for CPH is somewhat mixed, especially when I reflected upon the L2 learners I taught in a secondary school in Hong Kong. In all my years of teaching, I have had a chance to teach a fairly large number of L2 learners who are immigrants from the Mainland. They are of diverse backgrounds in terms of age, gender, financial condition, etc.

Very importantly, not all of them started learning English at the same age. There are a few cases which impressed me most. Two girls who first came to Hong Kong at the age of 17 joined my S4 class. Both of them started learning English at the age of around 12 when they were in the mainland. What was so remarkable was that both of them could write very fluently with highly accurate grammar and a variety of sentence patterns. Their performance in writing and reading even surpassed their local counterparts who started taking up English in kindergarten.

This can somewhat be taken as counter-evidence to the CPH. Both girls revealed that they had an extraordinary strong motivation to improve their English and to catch up with their classmates. These social-psychological factors did play a part in their success of L2 acquisition. As discussed in Lightbown (2006), learners beginning at primary school level might not have an absolute advantage over adolescent learners in attaining greater proficiency in the long run.

This is especially true when learners, confining to a classroom setting, receive just a few hours of training every week. Interesting enough, despite extra tutorials to improve the girls’ oral skills, they carried a rather strong foreign accent. In fact, they do speak Cantonese (a different dialect) with an accent, let alone English, a language which is far different from their mother tongue. This seems to support findings demonstrating that it is very unlikely for late starters to attain native-like pronunciation.

Conclusion

As an experienced and sensible teacher, I believe that one should not constrain ourselves too much in any one of the theories or models. If a teacher is a true believer of the CPH, it would somehow affect their expectation on their students who are beyond the puberty period. This in turn would also lead to a lower expectation of the students themselves even though they are not aware of the fact that their teachers assume that they have already gone beyond the optimal period of learning a second language.

Instead we should be flexible and reflective enough to cater to our learners’ needs and facilitate their learning regardless of their age. Though I am convinced that the age factor does play a part in affecting SLA, I concern more in how I could adjust my teaching methods to suit the needs of learners at different ages.

It is no doubt that the hypothesis should not be oversimplified and overgeneralized and to be indiscriminately applied to our students because second language learning is a really complicated process in which a lot of factors can be intermingled to affect how successfully a person can learn a second language.

To conclude, there has been no overwhelming evidence showing that young learners have absolute superiority over their adult counterparts. Despite the difference in the research findings, there seems to be a general consensus that there are a number of factors interacting to affect SLA, and it is possible that late learners might achieve success in SLA, most likely via a different route from children learners, as discussed by Krashen (1975); (Dekeyser 2000). I believe it is also due to this reason that a lot of other factors cognitive, psycholinguistic and socio-cultural that come into place as to how a learner acquire a second language.

References

Lightbown, P. & Spada, N. (1993). How Languages Are Learned. Oxford University Press

Robertson, P. (2002) The Critical Age Hypothiseis, The Asian EFL Journal (On-Line) http://www.asian-efl-journal.com/marcharticles_pr.php

Flege, J.E. and Fletcher, K.L. 1992, talker and listener effects on degree of perceived foreign accent. Journal of the Acoustical Society of America 91, 370-89.

Daniels, D. and Moos, R.H. (1990). Assessing Life Stressors and Social Resources among Adolescents: Applications to Depressed Youth. Journal of Adolescent Research, 5, 268-289.

Erikson, Erik H. (1980). Identity and the life cycle. W.W. Norton & Company, Inc.

Hall, J.A. (1987). Parent-Adolescent Conflict. An Empirical Review. Adolescent, 22, 767-789.

Montemayor, R. (1986). Family Variation in Parent-Adolescent Storm and Stress. Journal of Adolescent Research, 1, 15-31.

Ormrod, J.E. (2000). Educational psychology: developing learners (3^rd ed.). London: Prentice Hall.

Rice, F.P. (1993). The adolescent: Development, relationships, and culture (7^th ed.). Boston: Allyn and Bacon.

The concept of critical period was initially introduced by Wilder Penfield and Lamar Roberts (1959). As summed up by Hong and Morgan (2005), they proposed that the relatively higher plasticity of a child’s brain, as compared to that of an adult, enables a child to learn a language more easily.