Showing posts from 2021

The Legal Transplant Doctrine and Comparative Jurisprudence

Introduction “[T]he law does not exist in a vacuum” - a maxim chanted by many when looking to implement legislative reform. 1 The legal transplant doctrine is one way in which reform can be brought about by adopting the legal systems other jurisdictions. This essay begins by presenting a brief introduction to the legal transplant doctrine, in particular by looking at two competing and polarised interpretations presented by two equally distinguished scholars. It then considers how the case of Leyla Sahin v Turkey 2 ( Sahin ) reflects upon the interpretations of legal transplants; also presenting a brief comparison with subsequent case law in a different contextual and societal setting. It is concluded that the case law has preferred a wider approach to the legal transplants doctrine.  The Legal Transplant Doctrine When looking to reform old laws or implement new ones lawmakers rarely start on a blank canvas. Instead, it is common practice to look to the laws of other juris

The Doctrine of Frustration: Development and Limitations under English Contract Law.

INTRODUCTION Pacta sunt servanda is a fundamental and universally accepted concept of contract law. As a matter of principle, each party must adhere to the letter of the agreement. Lord Hope recently expressed the opinion that “the maxim pacta sunt servanda [...] lies at the root of the whole contract law”. 1 Since effective economic activity is not possible without reliable promises, the importance of the precept is indeed paramount. 2 Nonetheless, the principle of sanctity of contract is not considered to be absolute. Practice has demonstrated that strict application of the doctrine might lead to an immensely impractical and wholly outrageous result. Situation existing at the conclusion of an agreement might have subsequently changed so significantly that any reasonable party would not have entered into the contract or would have stipulated for a different one, had it known the future occurrence. 3 In response to the need for a feasible solution, the English system has develop

Free Movement of Persons under EU Law: Merits and Demerits.

One of the reasons behind the founding of the European Union 1 was to reduce the prospects of recurrent military action, the past examples of which worked to crumple once powerful states; it was envisaged that greater economic reliance amongst the relations the States would make their leaders think twice before deploying their armies. 2 It could be argued that the threat of war between European States is no longer nearly as prevalent as it was; however, the economic element clearly subsists. European law now caters for four freedoms of movement: persons, 3 capital, 4 services, 5 and goods; 6 which make up the foundations of the internal market. The aim of this essay is to focus on the first of those mentioned, the freedom of movement of persons, to compare the historical and current rationale behind such a freedom and evaluate the tension such freedom can cause against the Member States’ 7 who will, particularly in light of the current economic climate and pressures facing public insti