Part II Formation, 4 Certainty

2021 ◽  
Author(s):  
Andrews Neil
Keyword(s):  
Case Law ◽  
Good Faith ◽  
English Law

A requirement in English law is that an agreement must have sufficient commercial certainty. The extensive case law is examined closely, with instances being cited of numerous cases where the courts have either concluded that the certainty requirement has been satisfied, or that the transaction is void for lack of fundamental clarity. An agreement to agree is not valid, nor an agreement to negotiate reasonably or in good faith. These restrictions are examined closely. An interesting exception has emerged, requiring a party to adhere to an undertaking to negotiate in an amicable and constructive way as a preliminary to commencing arbitration.

Contract Law in Practice

2021 ◽  
Author(s):  
Andrews Neil
Keyword(s):  
Common Law ◽  
Case Law ◽  
Detailed Examination ◽  
Contract Law ◽  
Good Faith ◽  
Fair Dealing ◽  
Freedom Of Contract ◽  
Compensation Principle ◽  
The Common ◽  
English Law

This book is a detailed examination of the general doctrines of English law of contract. Cases are analysed precisely, providing quick access to the major authoritative passages in the leading judgments. The coverage is comprehensive. It focuses on English law, but it also provides analysis of assistance throughout the Common Law family of legal systems. It provides up-to-date examination of case law developments. There are nearly fifty ‘evaluation’ sections which provide comment on controversial or unclear topics. Six major principles are identified: Freedom of Contract; Objectivity; the Contractual Bond Principle; Estoppel; Good Faith and Fair Dealing; the Compensation Principle.

Non-Signatories in International Commercial Arbitration: Contesting the Myth of Consent

2018 ◽  
Vol 18 (2) ◽  
pp. 59-84
Author(s):  
Slavomír Halla
Keyword(s):  
Case Law ◽  
Good Faith ◽  
Mutual Understanding ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Starting Point ◽  
Professional Audience

Abstract Consent, the final frontier. International commercial arbitration is a dis­pute resolution mechanism embedded in consent of the parties involved. Presentation of such a mutual understanding is done through an arbitration agreement. However, the aim of this paper is to analyse whether its contractual, indeed consensual, nature is the only element which the courts use to identify the subjects who may compel or must be compelled to arbitrate disputes, or whether they employ other considerations as well. The paper will focus on extension doctrines which might be less known even to a professional audience: piercing of the corporate veil, estoppel & group of companies. A review of selected case law leads to a conclusion that consent-finding analysis is defi­nitely a starting point of any analysis. However, at the same time courts and arbitrators do indeed use tools of contract interpretation and the ones based on equity or good faith considerations to establish, and exceptionally force, the implication of consent far beyond what is obvious.

Fiduciary Law, Good Faith, and Publicness

2019 ◽  
pp. 762-779
Author(s):  
Hillary A. Sale
Keyword(s):  
Case Law ◽  
Corporate Law ◽  
Good Faith ◽  
Fiduciary Duty ◽  
Red Flags ◽  
Corporate Development ◽  
Duty Of Loyalty ◽  
Trust Law

This chapter uses corporate law as a case study to evaluate the content of the fiduciary duty of good faith. Tracing its development from Van Gorkom through to the present, the chapter shows how good faith, though part of the duty of loyalty, has become a gap filler, policing the space between generally exculpated breaches of care and the more obvious breaches of loyalty. This chapter also surveys good faith case law to show the most common “red flags” for which corporate officers and directors should be monitoring. An analysis of two of the most recent good faith cases—City of Birmingham and In re Wells Fargo—show how the theory of publicness can be used to predict future good faith developments. Finally, the chapter ends by showing that the duty of good faith’s expansion into trust law parallels its corporate development by emphasizing its gap-filler function.

Schemes of Arrangement: Law and Practice

2012 ◽  
Author(s):  
Geoff O’Dea ◽  
Julian Long ◽  
Alexandra Smyth
Keyword(s):  
International Law ◽  
Case Law ◽  
Private International Law ◽  
Sources Of Information ◽  
Foreign Companies ◽  
Pros And Cons ◽  
English Law ◽  
The Law ◽  
The Uk

This new guide to schemes of arrangement draws together all of the elements of the law and practice concerning both creditor and member schemes. Member schemes of arrangement have become the preferred method of implementing takeovers in the UK. Creditor schemes of arrangement are increasingly used in restructuring matters and the trend in their usage in foreign companies is likely to continue as many credit documents across Europe are arranged and underwritten in London under English law. The book considers the effect given to an English scheme in foreign jurisdictions, and other Private International Law issues. A major issue for those considering a scheme for creditors is whether a scheme or CVA (Company Voluntary Arrangement) is more appropriate and this book assists the reader by including an analysis of the pros and cons of schemes and CVAs. There are very few sources of information on schemes of arrangement and the area takes much of its substance from case law. This book, addressing the law and practical issues faced by practitioners on a day-to-day basis, is a first in the field.

English Foundations of American Law, 1500s–1776

2018 ◽  
pp. 48-74
Author(s):  
John B. Nann ◽  
Morris L. Cohen
Keyword(s):  
Eighteenth Century ◽  
Common Law ◽  
Case Law ◽  
Case Finding ◽  
Colonial Period ◽  
Legal Issue ◽  
Good Case ◽  
American Law ◽  
English Law ◽  
The Law

This chapter describes current sources and techniques useful for finding seventeenth- and eighteenth-century laws of England and introduces some methods an attorney in England in the seventeenth and eighteenth centuries might have used. Before researchers can find the law, they must know what was considered to be the source of law in the period being investigated. Reporting, publishing, and finding cases has been important in English law for centuries. Parliamentary enactments during the colonial period also play an important part in the framework surrounding any particular legal issue. Meanwhile, English law is built on a foundation of common law, which is built on case law. As such, finding cases that relate to a particular topic is critical in research. A good case-finding option is a digest of cases; these have been written over the centuries, as have abridgments and treatises on particular areas of law.

scholarly journals Development of the Principle of Good Faith and the Institute of Pre-Contractual Liability in Light of the Reform of French Legislation on Obligations

10.12737/2243 ◽  
2014 ◽  
Vol 2 (2) ◽  
pp. 91-100
Author(s):  
Ирина Мутай ◽  
Irina Mutay
Keyword(s):  
Case Law ◽  
Good Faith ◽  
Legal Doctrine

On the materials of project of reforming of law of obligation in France the author researches law positions of French courts and legal scholars on good fair and pre-contractual responsibility, explaines importance of legislative basis of proposals on pre-contractual responsibility and its development by case law, makes conclusions of necessity of taking into account of achievements of foreign legal doctrine during formation of Russian case law.

THE LEGAL STATUS OF CENTRAL BANK INVESTMENTS UNDER ENGLISH LAW

1998 ◽  
Vol 57 (2) ◽  
pp. 374-390 ◽  
Author(s):  
WILLIAM BLAIR
Keyword(s):  
Legal Status ◽  
Case Law ◽  
Central Banks ◽  
The Public ◽  
State Immunity ◽  
The Us ◽  
English Law ◽  
The Uk ◽  
Special Provision ◽  
Made In

Central banks have enormous sums of money in various forms of investments. When claims are made either against the banks themselves, or against other governmental bodies, issues arise as to whether these assets can be attached, and made available to satisfy judgments. The article explains how central banks are treated in English law. It explains the special provision made in respect of their assets under the State Immunity Act 1978. There is wide immunity from attachment, though questions can arise as to the ownership of such assets. The UK legislation is, in some respects, wider than its counterpart, the US Foreign Sovereign Immunities Act 1976. Recent case law is described in which the English courts have recognised that the public responsibilities of central banks have to be taken account of when determining the extent of their liability to attachment.

The role of the principle of integrity in copyright protection

2021 ◽  
pp. 12-25
Author(s):  
Olena Shtefan
Keyword(s):  
Case Law ◽  
The United States ◽  
Fair Use ◽  
Good Faith ◽  
Scientific Article ◽  
Anglo Saxon ◽  
Fair Dealing ◽  
Applicable Law ◽  
Principle Of Justice

Shtefan O. The role of the principle of integrity in copyright protection.The article is devoted to the disclosure of the essence of the principle of good faith as the quintessence of all principles of law, universal principle, which applies both in procedural and material law. Directly in the article, the principle of good faith is revealed through the prism of the analysis of controversial legal relations arising in copyright relations.The application of the principle of fair use of works is aimed at establishing a balance between the interests of authors of works and the interests of society regarding their use, while sometimes it is used to expand the monopoly of copyright.Analysis of the legislation and case law of Canada, Australia and other countries allows us to define the principle of «fair dealing» as a way to protect («affirmative defense ») from copyright infringement and restrictions, rather than as a statutory right to use someone else’s work. Otherwise, the defendant would be burdened with proving that: 1) the use corresponds to one of those listed in Art. 29 goals (for example, research, criticism or news); 2) the use was «fair» and 3) there were references to the original source.According to the results of the study in the scientific article it was concluded that the existence in the Anglo-Saxon legal family of two conceptually different in the application of doctrines of fair use «fair use» and «fair dealing» and understanding the free use of works in Ukraine, as in other countries in continental Europe, closer to the doctrine of «fair dealing», which implies a statutory list of actions that are classified as fair use, than to the doctrine of «fair use», which operates in the United States. Although it is possible to trace some similarities between the understanding of free use in the Civil Code of Ukraine, the Law of Ukraine «On Copyright and Related Rights» and the doctrine of «fair dealing» (given the statutory list of restrictions on copyright), it is necessary to take into account case law and, accordingly, a more «free» interpretationof the applicable law when the courts decide whether the use is a violation of exclusive rights or is an activity within the framework of free (fair) use. Keywords: copyright, illegal use of copyright objects, the principle of justice, thedoctrine of «fair use», the doctrine of «fair dealing».

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