Showing posts from 2022

What is the Trade and Cooperation Agreement (TCA) and how does it achieve the goals of Brexit?

Brexit is a highly discussed topic in general media. What is less discussed is the TCA – the agreement which legally determines the relationship between the UK and EU.  What is the TCA?  The TCA is a bilateral free trade agreement. Adoption of this arrangement ended the UK’s membership to the single market and customs union, allowing the UK to negotiate trade with third parties. The agreement provides for free trade in goods and limited mutual market access in services with the EU. It also provides for cooperation mechanisms in a range of policy areas and transitional provisions on sensitive areas (such as fisheries in the UK context). Most importantly for the UK’s goals of ‘taking back control’, it ends free movement of persons, most of the EU’s law enforcement and security cooperation with F and the ECJ’s authority in dispute resolution.  Analysis of the TCA Positives of the TCA include i) regaining greater sovereignty through the limited influence of the ECJ, free trade with third p

How the Job Retention Scheme demonstrated the failings of British Labour Law?

The Job Retention Scheme (JRS) is a perfect case study to highlight the failings of British Labour Law. This article will focus on how such failures were evident in regards to i) lack of unfair dismissal protection, ii) lack of collective bargaining for workers and; iii) lack of protection for precarious workers.  What are the fundamental failings of British labour law? In order to determine the failings of British Labour law, it is important to first establish the normative standard it should be held to. It is best to look to the normative framework established by ILO Constitution. In its most recent form, the ILO reinforced the importance of social justice, and social dialogue in contributing to the ‘overall cohesion of societies’, while being ‘crucial for a well-functioning and productive economy’.  British labour law has failed to live up to this standard. It has been largely stripped of its traditional function of protecting workers from various abuses of employer power. The pre-p

As a result of its intense focus on the state of the defendant’s conscience, does equity fail to strike a fair balance between the interests of beneficiaries and third-party recipients of trust assets?

The doctrine of unconscionability distinguishes equity law from the common law. As such, an intense focus on the state of conscience is a defining feature of equity’s operations. However, its operation in knowing receipt has led to uncertainty as to when a recipient is liable, failing to strike a fair balance for both beneficiaries and third parties who are left without clarity as to their rights. It is argued there is no balance to be struck between a third-party gaining asset she should never have gained, against the equitable proprietary interest of the beneficiary. The third party should account for gain regardless of conscience or knowledge. Therefore, conscience does not cause equity to fail in striking a fair balance, but rather attempts to strike a balance where one should not be found.  Intense focus on conscience? Conscience underlies the roots of equity law, historically enabling the Court of Chancery to intervene where the rigidities of the common law would cause inequitabl

Is there a single explanation which adequately captures the nature of a beneficiary’s rights under a trust?

No traditional explanation in English law adequately captures the nature of beneficial rights under a trust. Traditionally, Roman law categorised rights into rights in personam and in rem. However, equity has made these terms unsuitable for modern property law, where beneficial interests under a trust has gradually changed from purely personal rights to something close to property rights. In reality, the nature of beneficial rights are best captured as sui generis rights, where rights are not attached to property but flow from the rights of the trustee. This explanation is adequate in theory, but may be difficult to advance in practice.  Problems with existing explanations 1) Personal rights  There are three key demonstrations that the rights under a trust (beneficial rights) are stronger than personal rights. Firstly, beneficial rights bind anyone to whom the property is transferred, except for bona fide purchasers for value (BFP). Maitland suggests that this simply demonstrates a u