Congruence between official Action and Declared Rule

  • Most complex of all desiderate.  Sponsored by Dentist Calgary NW
  • This congruence can be destroyed in many ways: mistaken interpretation, inaccessibility of the law, lack of insight into what is required to maintain the integrity of a legal system, bribery, prejudice, indifference, stupidity, and drive towards personal power.
  • Thus, procedure to maintain congruence takes on many a form.
    • Umbrella of “procedural due process”, standing to raise constitutional issues.
  • In US, judges entrusted with safeguarding this, has advantages, but also disadvantages. It makes correction of abuses dependent of willingness and financial ability of the affected party to take his case to litigation.
  • Where law is judge made, though lower courts can impart congruence between law and official action, supreme court cannot because it makes the law. ..but not, because can make tune undanceable, inter alia, frequent changes, retroactivity, etc.
  • Most subtle issue: interpretation.  What are the Principles of interp.?  Best general answer I know is
    • When Baros of the Exchequer met in 1584:
      • 1. What as common law before making of act?
      • 2. what was mischief and defect for which common law did not provide_
      • 3. what remedy the Plt hath resolved and appointed to cure the disease of commonwealth?
      • 4. The tru reason of the remedy; and then the office of all Judges is always to make such construction as shall suppress the mischief and advance the remedy.
    • Fuller thinks it should have 5th point “How would those who must guide themselves by its words reasonable understand the intent of the act, for the law must not become a snare for those who cannot know the reason for it as fully as do the Judges.”

References for exams

BIBLIOGRAPHY

Legislation

  • Trade Marks Act 1994 c. 26

Case Law

  • Perry v. Truefitt, 5 Beavan 66 (1842)
  • Consorzio del Prosciutto di Parma v Marks & Spencer, 1991 R.P.C. 351, 368
  • Francis Day & Hunter Ltd v Twentieth Century Fox Corp Ltd 1940 A.C. 112
  • Cadbury Schweppes Pty Ltd v Pub Squash Co Pty Ltd [1981] 1 W.L.R. 193
  • Och-Ziff v Och Capital [2011] F.S.R. 11
  • Arsenal Football Club Plc. v Elite Sports Distribution Ltd [2002] EWHC 3057 (QB)
  • Case C-63/97 Bayerische Motorenwerke AG v Deenik [1999] E.C.R. I-905
  • Case C-519/12 P Bimbo SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
  • Skyscape Cloud Services Ltd v Sky Plc. [2016] EWHC 1340 (IPEC)
  • Regina v Johnstone [2003] UKHL 28
  • CHEETAH Trade Mark [1993] F.S.R. 263
  • Cable & Wireless Plc. v British Telecommunications Plc. [1998] F.S.R. 383

 

Articles

 

  • David I. Bainbridge “Smell, sound, colour and shape trademarks: an unhappy flirtation?” J.B.L. [2004 Mar]
  • Alice Blythe “Internal company emails: should the inclusion of trade marks be regarded as use in the course of trade or a private matter?” E.I.P.R. [2014] 36(2)
  • Dr Jasem Tarawneh “A new classification for trade mark functions” I.P.Q. [2016] 4

Online Resources

  • UK Intellectual Property Office – Official website: <https://www.gov.uk/government/organisations/intellectual-property-office > Accessed: 27 March 2017

Other Materials

Lis pendens rule and choice of court agreements

The formalism of the lis pendens doctrine under the previous Regulation[1]  in the context of choice of court agreements allowed the possibility of ‘torpedo’ proceedings. [2] The lis pendens rule states that the court seized second will be obliged to stay the proceedings until the first court establishes whether it has jurisdiction.[3] In such a case, should a designated court be seized second, it had to wait until the court first seized established or declines jurisdiction.[4] This undermined the effectiveness of choice-of court agreements, which could be disregarded by a party acting in bad faith by taking advantage of the so-called ‘Italian torpedo’ action.[5]

The ‘Italian torpedo’ is a situation where an individual to a dispute intentionally brings forth an action before a court in a jurisdiction which is notoriously slow[6] in order to bar unwanted court action.[7] As Alavi[8] argues, this only negates the effectiveness of party autonomy[9] and the purpose of having exclusive jurisdiction.[10] In respect to lis pendes,[11] this helped ensure that there was effective legal protection as it aimed to prevent parallel proceedings and irreconcilable judgements.[12]

The lis pendens doctrine rule was established in Gasser vs MISAT[13] which was met with a lot of criticism and instigated the reform.[14] In this case it was held that the lis pendens rule shall be interpreted by of concluding that any court subsequently seized, even if it happens to be the one indicated in the valid choice-of-court agreement, shall stay the proceedings until the court first seized establishes whether or to it has jurisdiction. The ECJ also expressly stated that this rule cannot be derogated from for the sole reason that the court system of the court first seized is excessively slow. A similar reasoning was followed in the Websense vs ITWAY[15] case. In 2009, the European Commission expressed its concerns that this provision had led to delays, increase in costs and a race to the courts prematurely to ensure their choice of court agreements were effective. [16] Ratković[17] argues, the Gasser judgment is thought to support bad faith litigation and delaying tactics.[18]

[1] Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, Article 27

[2] Mary Keyes & Brooke Adele Marshall, ‘Jurisdiction agreements: exclusive, optional and asymmetrical’ Journal of Private International Law 345

[3] This concerned also those proceedings that were wrongfully initiated in a non-designated court regardless of the existence of a choice-of-court agreement between the parties to a dispute

[4] Trevor Hartley, ‘Choice-of-Court Agreements and the New Brussels I Regulation” (2013) Law Quarterly Review 309

[5] Mary Keyes & Brooke Adele Marshall, ‘Jurisdiction agreements: exclusive, optional and asymmetrical’ Journal of Private International Law 345

[6] Council Regulation (EC) No 44/2001 of 22 December 2000 on abogados de accidentes de carro jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, Article 21

[7] Hamed Alavi, ‘A step forward in the harmonisation of European jurisdiction: Regulation Brussels I Recast’ (2015) Baltic Journal of Law and Politics 159

[8] ibid

[9] Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, Article 23 – this allowed parties to agree on their own rules so long that they did not conflict with the laws in force in their chosen member states.

[10] ibid

[11] ibid, Article 29

[12] Hamed Alavi, ‘A step forward in the harmonisation of European jurisdiction: Regulation Brussels I Recast’ (2015) Baltic Journal of Law and Politics 159

[13] Erich Gasser GmbH v. MISAT Srl, European Court of Justice (2003, C-116/02)

[14] Ian Bergson, ‘The death of the torpedo action? The practical operation of the Recast’s reforms to enhance the protection for exclusive jurisdiction agreements within the European Union’ (2015) Journal of Private International Law 1

[15] Websense International Technology Limited v. ITWAY Spa, Irish Supreme Court (2014, IESC 5)

[16] Ian Bergson, ‘The death of the torpedo action? The practical operation of the Recast’s reforms to enhance the protection for exclusive jurisdiction agreements within the European Union’ (2015) Journal of Private International Law 1

[17] Tena Ratković & Dora Zgrabljić Rotar, ‘Choice-of-Court Agreements

under the Brussels I Regulation (Recast)’ (2013) Journal of Private International Law 245-268

[18] ibid

Part 2

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Veil piercing within the corporate group cuts across the categories already considered. Each of the grounds of fraud, sham and agency might provide a basis for piercing the corporate veil within the group. The degree of control exerted by the parent company over the subsidiary has been treated as a crucial factor in determining liability, although not decisive in itself.[1] But the reality is that the kind of close control that has been influential in finding liability in cases involving relatively modest corporate groups,[2] is less likely to be present in cases of involving companies of real size and scale which give rise to the kinds of mass tort problems with which this article is concerned. Even where it is present, control has not been seen as a legitimate basis for veil-piercing.[3]

The asbestos cases, to be considered below, might be seen as exceptional in this respect, courts having on a number of occasions found evidence of parental decision-making and control as regards the operation of subsidiary companies. But these cases have complications of their own. Thus, in CSR v Young,[4] the New South Wales Court of Appeal found that the subsidiary company Australian Blue Asbestos Ltd had appointed its parent company CSR as its agentto enter into transactions on its behalf in management of its business and in the sale and distribution of its products. So, although control was present, this was pursuant to a kind of inverted agency agreement. Decision-making by the parent for the subsidiary was at the behest of the subsidiary and, moreover, was subject to terminationby the subsidiary.[5] And it was not an unusual case. Nominating the parent as agent reflects a desire to avoid duplication of major management roles in companies below the parent. Arrangements of this kind are to be found even amongst the largest of corporate groups.[6] In such circumstances, agency theory tells us that the subsidiary is liable and the agent (the parent company) ‘drops out’.

Continue reading “Part 2”

The question on, lifting the corporate veil

In recent times, veil-piercing has been frequently pleaded in cases where claimants have sought to create liability in a parent company or other shareholders. Under this doctrine, a court ostensibly has the power to disregard the separate legal personality of the company and create liability in wrongdoing shareholders. Given that Corporations Act 2001 (Cth) s 516 creates limited liability for the shareholders in a company, a question arises as to the basis upon which courts have created an exception to this provision that appears contrary to its intention. The truth appears to be that veil piercing doctrine involves a surprising disregard of the statute.[1] Unless empowered to do so by legislation, it is arguable that judges cannot ignore the separate legal personality of the company created by registration under the Corporations Act 2001

 

[1] See Dimbleby & Sons Ltd v National Union of Journalists [1984] 1 WLR 427, 435, where Lord Diplock stated that ‘one would expect that any parliamentary intention to pierce the corporate veil would be expressed in clear and unequivocal language’. With respect, this must be correct.