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Sanctity of contracts in a secular age : equity, fairness and enrichment
\"The phrase 'sanctity of contracts' implies that contracts should always be strictly enforced. But when this objective is relentlessly implemented ruinous burdens are sometimes imposed on one party and extravagant enrichments conferred on the other. Despite recognition of the need to control highly unreasonable contracts in various particular contexts, there remain many instances in which the courts have refused to modify unreasonable contracts, sometimes with extravagant results that are avowedly 'grotesque'. In the computer age assent may be inferred from a click on a screen in the absence of any real agreement to the terms, which are often very burdensome to the user. In this book, arguments are advanced in favour of recognition of a general judicial power to relieve against highly unreasonable contracts, not only for the benefit of the disadvantaged party, but for the avoidance of unjust enrichment, and for the avoidance of anomalous gaps in the law\"-- Provided by publisher.
Book
Competence-Competence in the Face of Illegality in Contracts and Arbitration Agreements
Competence-competence and corruption have, for different reasons, been mainstays of international dispute resolution thought and practice for the longest time. In the last few years, their intersection has become increasingly important and problematic. These lectures seek to define the problem and to provide acceptable solutions where possible. They attempt to derive support from both a stringent dogmatic approach and pragmatic attention to real-life expectations and conduct. More so than in other areas of private international law, the intersection between the powers of the arbitrator and the illegality of the subject matter or the parties' conduct poses a particular challenge. That challenge is to postulate proper solutions under the law, including principles of transnational or international law, to conduct which can take on a multiplicity of appearances owing to conflicting cultural understandings of what is and is not legal in commercial life. The statement that bribery and corruption offend transnational or international public policy does not relieve the arbitrator from the burden of scrutinizing that statement doctrinally and exploring its consequences in a period of ever-increasing globalization of economic activity and investment.
eBook
A Comparative Viewpoint on Illegal Contracts: In Favor of Flexibility and Proportionality
In today’s society, a dense network of laws and regulations presides the actions of all people. And it is so extensive that any number of activities – including the formation of contracts – is capable of breaking the law. This is why it is even more important, nowadays, to reconsider the issue of contracts that violate legal rules. The trend in favor of flexible remedies reveals that the rigidity of the more traditional solutions might not be the best choice in this day and age.
Journal Article
Fraudulent transactions affecting employees: Some new perspectives on the liability of advisers
Fraudulent phoenix activity and sham contracting are well-recognised issues in the context of protecting employees' remuneration entitlements, both during the life of a company and after it has collapsed through insolvency. To date, much of the emphasis in dealing with these problems has been on the businesses' controllers. This paper takes a different approach and ponders whether at least some of these improper and illegal arrangements could have been devised and executed without some expert advice. It asks whether a more effective approach might be to target those advisers. Several cases have considered the liability of advisers as accessories to the company's or directors' breaches of legislation. While these are useful starting points, the lack of other actions against advisers, coupled with a general failure of professional bodies to caution against these illegal and improper behaviours, undermines the continued effectiveness of these decisions. A concerted effort - by regulators, courts and professional bodies - is required to ensure that advisers are persuaded that advocating these sorts of fraudulent schemes is simply not worth the risk.
Journal Article
Fraudulent transactions affecting employees: Some new perspectives on the liability of advisers
Fraudulent phoenix activity and sham contracting are well-recognised issues in the context of protecting employees' remuneration entitlements, both during the life of a company and after it has collapsed through insolvency. To date, much of the emphasis in dealing with these problems has been on the businesses' controllers. This paper takes a different approach and ponders whether at least some of these improper and illegal arrangements could have been devised and executed without some expert advice. It asks whether a more effective approach might be to target those advisers. Several cases have considered the liability of advisers as accessories to the company's or directors' breaches of legislation. While these are useful starting points, the lack of other actions against advisers, coupled with a general failure of professional bodies to caution against these illegal and improper behaviours, undermines the continued effectiveness of these decisions. A concerted effort - by regulators, courts and professional bodies - is required to ensure that advisers are persuaded that advocating these sorts of fraudulent schemes is simply not worth the risk.
Journal Article
Fraudulent transactions affecting employees: Some new perspectives on the liability of advisers
Fraudulent phoenix activity and sham contracting are well-recognised issues in the context of protecting employees' remuneration entitlements, both during the life of a company and after it has collapsed through insolvency. To date, much of the emphasis in dealing with these problems has been on the businesses' controllers. This paper takes a different approach and ponders whether at least some of these improper and illegal arrangements could have been devised and executed without some expert advice. It asks whether a more effective approach might be to target those advisers. Several cases have considered the liability of advisers as accessories to the company's or directors' breaches of legislation. While these are useful starting points, the lack of other actions against advisers, coupled with a general failure of professional bodies to caution against these illegal and improper behaviours, undermines the continued effectiveness of these decisions. A concerted effort - by regulators, courts and professional bodies - is required to ensure that advisers are persuaded that advocating these sorts of fraudulent schemes is simply not worth the risk.
Journal Article
Minimum Contract Justice
The collapse of the Rana Plaza in Bangladesh (2013) is one of many cases to invoke critical scrutiny and moral outrage regarding the conditions under which consumer goods sold on our markets are produced elsewhere. In spite of abiding moral concerns, these goods remain popular and consumers continue to buy them. Such transactions for goods made under deplorable production conditions are usually presumed to count as ‘normal’ market transactions, ie transactions that are recognized as valid consumer-contracts under the rules of contract law. This book challenges this presumption of normality. It explores the question of how theories of justice bear on such consumer contracts; how should a society treat a transaction for a good made under deplorable conditions elsewhere? This book defends the position that a society that strives to be minimally just should not lend its power to enforce, support, or encourage transactions that are incompatible with the ability of others elsewhere to live decent human lives. As such, the book introduces a new perspective on the legal debate concerning deplorable production conditions that has settled around ideas of corporate responsibility, and the pursuit of international labour rights.
eBook
