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Showing posts from March, 2021

Case Analysis of Royal Brunei Airlines v Tan, an important Equity and Trusts law case on breach of trust and liability for dishonest assistance.

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In Royal Brunei Airlines v Tan 1 , Lord Nicholls of Birkenhead, delivering the advice of the Privy Council, marked a significant shift away from the requirement of knowledge as a necessary ingredient of a claim against a person who assisted in a breach of trust. Instead, a concrete foundation for judicial development of a civil law test based on dishonesty was laid down. Even though the decision was merely of persuasive authority, it was welcomed by both practitioners and academics, as disposing of the “tortuous convolutions” which had thus far characterised the “knowing assistance” jurisprudence. 2 Nonetheless, what appeared to be a straightforward definition of “dishonesty” was unnecessarily tampered with in subsequent case law. This paper seeks to provide an analysis of the judgment with particular emphasis being placed upon the meaning afforded to the crucial concept of dishonesty.  In brief, the defendant, Philip Tan, was the managing director of Borneo Leisure Travel (BLT), a tra

What justifications are there for the Woolmington principle? To what extent has this principle now been eroded?

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The Woolmington principle primarily asserts that in criminal cases the burden of proof shall lie with the prosecution. It has been championed in and by courts as the golden thread of the English legal system, receiving classic formulation 1 in the case of Woolmington v DPP 2 . Viscount Sankey put it in the following words that surface time and again in judgments and journals: "Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt...". 3 .  In essence, this establishes that the burden of proof shall lie with the prosecution to prove its case; in the same case the standard of proof required from the prosecution was also reiterated – i.e. one satisfying the jury beyond reasonable doubt that the defendant is guilty. The Woolmington principle is more or less ubiquitous insofar as its content is found in almost every jurisdiction that respects one’s right to a fair trial. Two c

Would it be lawful in international law for a state to take military action to prevent another state from developing technology that can be employed to develop nuclear weapons?

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International law recognizes no such right and any action by a State would be illegal. This is because international prohibits all use of force through Article 2(4). While, as discussed before, this does not include self-defence, which remains the legitimate right of all States, no such argument could be made in this scenario. The development of nuclear technology, even for military purposes, remains a legal right of States. The development of nuclear weapons is not an act of aggression, rather it is the sovereign prerogative of every state to develop and maintain armaments for defence purposes subject only to the legality of those weapons. Only a threat or actual use of force by a State would violate the line drawn by Article 2(4).   On a practical note, in order for such a rule to be created in international law that would permit the use of force under such circumstances, either an international agreement or a new custom would be required. The democratic