This paper will examine the structure of the defendant-sided unjust factors, by which I mean duress and undue influence. The paper first argues that undue influence is based on abuse of deferential trust placed in the defendant and duress on an illegitimate threat leading to the claimant's lack of consent. The paper distinguishes undue influence from the unconscionable bargains doctrine. The paper then models the effect of that on the claimant's intentional agency by reference to Michael Bratman's influential theory of intention. It suggests that while mistake can be modelled by way of the failure of a condition on his intention, meaning that the claimant's intention does not cover the facts as they actually turn out to be, defendant-sided factors are based on the defendant's having improperly inveigled himself into the claimant's practical reasoning. It suggests that this happens either by way of the defendant's illegitimate structuring of the claimant's choice or by way of the claimant's deferring his judgment to that of the defendant. The claimant's intentions have, in philosophical language, agential authority, but the claimant was ‘in the grip of a norm’; the essay explores what this concept might be.

Jurisdiction clauses commonly feature in high-value international contracts. Recently, these clauses are also increasingly utilised in international trust instruments. At common law, a contentious issue vis-à-vis exclusive jurisdiction clauses in trust deeds has been whether they should be upheld in the same way as their contractual equivalents. In obiter remarks in Crociani v Crociani, in 2014, the Privy Council stated that these clauses should be afforded less weight in trusts than in contracts. However, as this paper seeks to demonstrate, the reasoning underpinning the treatment of exclusive jurisdiction clauses in trust deeds in this manner is questionable. The paper's key contention is that exclusive jurisdiction clauses in trust deeds should be enforced in the same way as those in contracts. Accordingly, an exclusive jurisdiction clause in a trust instrument should be upheld, unless the claimant can establish a strong cause why the matter should be litigated elsewhere.

Socio-legal scholarship in contract maintains that the classical law is ineffective in regulating commercial agreements, and that the law should be more attentive to the role played by relational norms of cooperation and implicit understandings in business dealings. This paper explores the extent to which the parties' own narratives about their business relationship, as presented to a judge through testimony, can be both a source of information to judges about how business is conducted and a corrective to the classical contract law mindset, which favours the operation of individualist over cooperative norms in the resolution of commercial disputes. The paper examines a body of ‘law and narrative’ scholarship which underlines narrative's power to subvert traditional legal norms. It also considers some of the difficulties with relying on party narratives as evidence of the implicit dimensions of commercial agreements, but concludes that such narratives may have a role to play in the development of a more relationally constituted contract law and are thus worthy of closer scrutiny.

The High Court created by Australia's 1901 Constitution first sat on 6 October 1903. A century on, it is an apt time to consider how the record of the Court can contribute a different perspective to the debate over a possible Supreme Court for the United Kingdom. Of course, it cannot be assumed that common views are held of this record. Indeed, the role of the High Court and its place in the Australian political system remains hotly contested.

Members of the senior judiciary have expressed concern about the ‘over-judicialisation’ of welfare in the context of homelessness decision-making and adjudication. This paper examines how those fears have been manifested and makes a link with the concept of proportionate dispute resolution (PDR). It argues that the statutory scheme incorporates elements of PDR and judges should therefore refrain from introducing additional layers. The courts’ denial of the application of Article 6 of the European Convention on Human Rights to the homelessness context is disputed, and the paper makes the case for continuing rigorous judicial oversight of front-line decision-making, recommending that attention is focused on assessing procedural safeguards rather than disputing the ambit of Article 6.

The tendency of lawyers these days is to deny much of a place to Roman Law and this is reflected not only in a widely held view that since the eighteenth century legal innovation has been so great as to have left the Corpus Juris Civilis a ‘mere antiquarianism’: it is also reflected in the fact that fewer and fewer law schools in the West insist on Roman law as a compulsory subject. Indeed, the number of law faculties or departments in England offering the subject as even an optional course can probably now be counted on the fingers of, if not one hand, then two.

International law, as expressed in treaties and in customary law, is of growing importance in municipal jurisdictions throughout the world. Some barriers to the use of international law in national courts are identified. Occasionally, they include scepticism and even hostility about this body of law. However, the past 60 years have witnessed a remarkable change in judicial attitudes in final courts in most Commonwealth countries.

In the UK, the impact of Europe has helped create an ‘incoming tide’. In South Africa, India and Canada, constitutional provisions have stimulated the change. New Zealand is now affected by its Bill of Rights Act. But, in Australia, none of these forces was available and decisional authority adhered for decades to strict dualism.

The changing pace of utilisation of international law in the UK and Australia are described. In the UK, the Human Rights Act 1998 now consolidates a trend already happening in the courts. In Australia, the Mabo decision in 1992 effectively endorsed the Bangalore Principles on the municipal application of international human rights norms. This paper describes the contrasting case-law. In the foregoing countries, it concludes with a response to criticisms of judicial utilisation of international law and a suggestion of the proper jurisprudential basis that can be identified to sustain a judicial process that is now well advanced in the countries surveyed.

Striking the right balance between the protection of competition law and intellectual property rights is of utmost importance, especially in the pharmaceutical sector; affordable generic drugs are as important as new innovative drugs. Pay-for-delay settlements take place at exactly this intersection. They end patent infringement litigation but, at the same time, delay entry of generic drugs by means of a substantial payment from the brand company to the generic. Whereas the US Supreme Court opted for a rule of reason approach that requires an analysis of the potential anticompetitive effects, the European Commission regarded such settlements as restriction by object, finding an infringement without the need for an effects-based analysis. This approach is criticised and a novel ‘structured effects-based’ approach is proposed allowing the authority to effectively scrutinise such settlements while striking the right balance in order to protect the innovative process and the exercise of intellectual property rights.

Reservations of title clauses have enjoyed mixed fortunes in recent times at the hands of the courts in Britain. On the one hand, the House of Lords has upheld the validity and effectiveness of an ‘all-liabilities’ reservation of title clause. On the other hand, claims on the part of a supplier to resale proceeds have been rejected in a string offirst instance decisions. Reservation of title has however been viewed more favourably as a phenomenon in New Zealand. In the leading New Zealand case Len Vidgen Ski and Leisure Ltd u Timam Marine Supplies Ltd. a tracing claim succeeded. Moreover in Coleman u Harvey the New Zealand Court of Appeal gave vent to the view that the title of the supplier is not necessarily lost when mixing of goods, which are the subject matter of a reservation of title clause, has occurred. There are now a series of more recent New Zealand decisions, some of them unreported, dealing with many aspects of reservation of title.

Ethnic and cultural diversity within the UK has ensured that English courts regularly have to resolve cultural conflicts. This paper concentrates on cultural conflicts in the courts where there is an international dimension to this issue and where persons not resident in the UK seek the help of the English courts. The paper does this by reference to two areas of law, asylum and child abduction, which also allows a comparison between the approach to human rights by judges in the public and private law spheres. The paper aims to highlight the in consistency of the approach among judges in child abduction cases, where the role of human rights is unclear. It contrasts this with the judicial approach in asylum cases and English law in general, where we argue human rights are increasingly influencing the attitudes to various practices justified on a cultural or religious basis.

Why is food regulated separately from, and differently to, other consumer products? This paper attempts to examine the different regimes for the regulation of food and general product safety, and examines the economic, social and cultural reasons for the separation. Finally, the paper considers whether the separate nature of the regimes is necessary, or whether food should be regulated within a ‘product safety’ framework.

Court decisions concerning the life and death of patients become more and more frequent in the context of medical practice. One of the most controversial decisions in this area in recent years has been the decision of the Court of Appeal in Re A (Conjoined Twins: Medical Treatment), authorising the separation of conjoined twins. This paper will argue that the decision was flawed both on legal and moral grounds and that its potential implications for future cases are more far-reaching than the judgment itself suggests.