England and Wales

Sir William Blackstone, an eminent jurist and professor of law at Oxford University, was the eighteenth century’s leading authority on the development of English common law. The underlying principles of the common law were based primarily on the customs and usages of the society, encompassing the ancient, often unwritten, laws of England, statutory enactments, and the judgments and decrees of the English courts. Blackstone’s monumental four-volume treatise on English Law, Commentaries on the Laws of England was first published in 1765 and was soon recognized as the authoritative guide to English common law. In the thinly settled American colonies, the need for a portable yet definitive guide to the common law made Blackstone’s Commentaries an essential treatise for colonial lawyers and magistrates. Even after the revolution, Blackstone’s work remained a cornerstone of early American jurisprudence, as adapted and edited by the federalist law professor St. George Tucker in 1803.

This book explores the use of the doctrine of good faith in the common law when interpreting contracts and resolving disputes. This doctrine is well-accepted in civil law, is reflected in international commercial law, and is a fundamental aspect of private law in the USA. However, its use in the UK is extremely limited. Inconsistent application has given rise to confusion and uncertainty. This apparent antipathy is somewhat hard to fathom, given its previous widespread acceptance in English law. The book explains in depth the history of good faith in English law, and clarifies its current status in English, Australian and international law. It explores the relationship between good faith within contractual relations and the neighbour principle in tort law, and notes the workability of good faith in the commercial context of insurance. This will be welcomed by contract lawyers in both common law and civil law jurisdictions. A subsequent volume will explore how acceptance of good faith in the law might lead to a re-interpretation of existing contract law doctrine.

Unity, divergence and convergence in the common law of obligations / Andrew Robertson and Michael Tilbury -- The influence of comparative law on the English law of obligations / Andrew Burrows -- Unity, then divergence : the Privy Council, the common law of England and the common law of Canada, Australia and New Zealand / Paul Finn -- A conscious effort to develop a "different" common law of obligations : a possible endeavour? / Goh Yihan -- A common law of tort : is there a European rift in the common law family? / Paula Giliker -- A judicial perspective on the development of common law doctrine in the light of statute law / Anthony Mason -- Public actors and private obligations : a judicial perspective / Sian Elias -- The tort liability of public authorities : a comparative analysis / Peter Cane -- We'll meet again : convergence in the private law treatment of public bodies / Niamh Connolly -- How to have a common private law : the presuppositions of legal conversation / Allan Beever -- The philosophies of the common law and their implications : common law divergences, public authority liability and the future of a common law world / Dan Priel -- Obligations, governance and society : bringing the state back in / TT Arvind -- Divergent evolution in the law of torts : jurisdictional isolation, jurisprudential divergence and explanatory theories / James Gouldkamp and John Murphy -- Common law values : the role of party autonomy in private law / Sarah Worthington

The Colour of Copyright

The article analyzes the doctrine of hardship in the contract law of Ukraine, France, Germany, England. The grounds for modify ing or terminating the contract due to a hardship are analyzed. A comparative analysis of the court ’ s powers to modify the contract in connection with a hardship is carried out . In French civil law the doctrine of l’imprévision covers all situations in which a party’s contractual obligations have become harder and more onerous to perform because of an unforeseen event posterior to the conclusion of the contract. The conception of hardship was introduced to Ukrainian Civil Code in 2004 for provide the contractual parties to overcome the negative impact of a change of circumstances that was unforeseeable at the time of the conclusion of the contract and renders performance excessively onerous for one of them . This provision is aimed, on the one hand, to restore the balance of interests in contractual relations and to reduce risks, and on the other hand, to keep the contract, as far as possible, preference given to the adaptation of the contract over its termination. Unfortunately, the case law indicates difficulty in implementing the provision of hardship. In English law doctrine is formed the concept of frustration. The only remedy for frustration in common law is termination of the contract; and termination is permanent – English law does not recognize partial frustration nor temporary frustration. German doctrine of hardship has been conceptualized into three aspects requiring a change of circumstances, the parties would not have concluded the contract if they had been aware of this change, and it would not be equitable for one party to deny the other party any amendment of the contract. German approach has been adopted in many harmonization projects and international instruments of contract law, in particular Principles on European Contract Law, Draft Common Frame of Reference, UNIDROIT Principles of International Commercial Contracts. In French, English and Germany law is established three different approaches to cases of contractual impossibility as an exception to pacta sunt servanda: contractual parties are not discharge unless performance has become impossible; as exception for impossibility to some cases; or as separate exception. The main problem nowadays is the lack of definition of “ significant change of circumstances ” in Ukrainian legislation and case law. Such a rule seems to increase legal uncertainty as the criteria of its implementation are vague and have not yet been firmly and precisely defined by case law. In most cases, the courts do not recognize the change of circumstances referred to by the party as significant. Ukrainian c ivil law doctrine defines “ significant change of circumstances ” as change of circumstances that did not depend on the will of parties and was the result of certain actions from the outside; and contains four features: was unforeseeable at the time of the conclusion of the contract, its duration and inevitability, arise without fault of the parties. The law of many states and international soft law gives courts power to modify or terminate the contract in case of change in circumstances. French Civil Code not contains certain grounds in the event of change in circumstances to modify or terminate the contract. They are the same as in case of contract modification or termination by parties. In contrast, Ukrainian legislator decreases significantly judicial intervention in contractual relations. The power of Ukrainian courts to modify the contract is based on the general principles of contractual freedom, if parties in contractual terms lay down modification the contract in case of change in circumstances that was unforeseeable at the time of the conclusion of the contract renders performance excessively onerous for a party.

Ansel Adams, the celebrated pioneer of landscape photography, observed that ‘not everybody trusts paintings but people believe photographs’. Whereas a painting is subjective, a photograph is accepted almost axiomatically as an accurate depiction of reality, and society’s faith in photography’s veracity has continued through its evolution to film and digital media. Indeed, when referring to the speed of frames shown in motion pictures, French filmmaker Jean-Luc Godard expressed that while ‘photography is truth, cinema is truth twenty-four times per second’. Even as photographers and film studios continue to push the boundaries of visual arts through Photoshop and computer-generated special effects, the public has largely been capable of appreciating the distinction between the fanciful from the factual and the artistic from the authentic. The deepfake video now challenges this paradigm and does so on an unprecedented scale. Some early commentary out of California1 suggests sui generis laws to address deepfakes are not necessary because existing legal doctrines are sufficient if applied correctly. This assertion is supported by the fact that California explicitly recognizes an individual’s legal right to control and commodify the expression of their image. As courts in the UK do not recognize such a right, one may query whether an individual can protect herself against a malicious deepfake under English law.2 From this question stems the idea that the ‘Golden State’ of California may be able to provide a ‘golden’ standard for image rights in the age of the deepfake. While comparisons between American and English image rights are not new, the novelty of deepfake technology warrants a renewed analysis. Furthermore, this article offers a departure from many others on the subject because it measures English laws against those of California specifically, rather than a survey of laws across several American states.

Like in most Western countries, the legal system in Israel is constantly evolving. Israel is a mixed jurisdiction in many respects. Historically, during the time of the Ottoman Empire, the land of Israel was ruled by Turkish law, which was followed by British law during the time of the British Mandate. Today, Israel’s legal system still reflects a mixture of civil law and common law. This mixture is evident, for example, in the combination of codified law and precedent-based law. Several areas of the law were codified, at the time of the British Mandate, in ordinances that remain binding today. However, these ordinances were supplemented and widely interpreted in Israel’s case law, and an “Israeli common law” was created. Today, legislative efforts are being made to codify this new common law. The mixed nature of substantive law in Israel is also illustrated by Israel's constitutional regime. While Israel has no formal constitution, it has a partial bill of rights (the basic laws) enacted by its parliament. In 1995, the Israeli Supreme Court decided, referring to American constitutional law, that it had the authority to invalidate “unconstitutional laws”. In its decision, the Supreme Court relied on a limitation clause, included in the new basic laws and inspired by the Canadian Charter of Rights and Freedoms. Since then, the Israeli Supreme Court has developed a number of constitutional rights from these basic laws, influenced by both the American concept of liberty and the European concept of human dignity. Finally, comparative law plays an important role in Israeli case law. While British common law no longer binds the Israeli judiciary, judges have wide discretion to use comparative law in their decisions. When relevant, referring to foreign law may be of great assistance to a judge by providing inspiration in a difficult case. Utilizing many different sources of law may help to create harmony between various jurisdictions, especially in times of increasing globalization.

This case is one of several types of legal claims that occurred due to the bankruptcy of H Shipping, which had a major impact on the shipping industry in South Korea. Among them, there are various issues such as the determination of the governing law for the claim for damages in relation to the termination of the contract due to the commencement of the rehabilitation procedure in time charters, the issue of the claim for the return of residual oil at the time of redemption in time charters, and the issue of the application of off-set under English law. Among the main issues related to this, we will look at the problem of the residual oil return bond according to the time charters’ forms. In the case where the governing law is designated as the English law of a foreign law, it is expected that the issue of off-set will be reviewed. First of all, there are many differences between the use of the NYPE 1946 and 1993 forms and the use of the NYPE 2015 forms. When using the former forms, it is necessary to supplement the ‘rider clause’. Especially, it is necessary to recognize that the residual oil return bond due to the termination of the time charter contract, which is the core of this case, is excluded from the NYPE 1946 form, but is included in the NYPE 2015 form. Next, there is the issue of off-set the termination of the contract under English law. The position of the English and Korean Courts are that set-off under common law and set-off under common law have a substantive nature in the application of set-off under the equitable law. Under English law, the problem of set-off for premature termination lies in the application of set-off under common law and set-off under equitable law. The judgment of the English court and the Korean court is that set-off under the common law is applied because it has a substantive law nature. Although it is a reasonable judgment, when the English law is applied as the governing law, there are cases where the position on the permissible off-set by the cause of the voyage charter party and the time charter party is different in carriage of goods by sea, so additional review is necessary. Based on these results, it is hoped that they will serve as practical references in the future.

The relationship between the Bill of Rights in the South African Constitution of 1996 and the common law is analyzed in this paper. "Common law" is understood broadly to include not only the Roman-Dutch law, but also the wide variety of legal sources and traditions which make up South African law, including African tradition, Muslim practice and the English law heritage.
 Firstly an exposition of the chief characteristics of the hybrid system of South African common law is given. It is shown that the common law is not codified; that it is a living and organic system of law constantly under legislative and judicial review; that its sources vary from judicial precedent to civilian authorities, English, indigenous customary and Muslim law; that the style of litigation and adjudication is English rather than Continental in Character and that when a common law rule is modified, it is done retrospectively in conflict with principles of legal certainty.
 Secondly the chief constitutional provisions relating to the relationship between the Constitution and the common law are considered. The supremacy clause (section 2) renders a common law rule which is inconsistent with the Constitution invalid from the date of the Constitution unless a court gives a different ruling in accordance with justice and equity. Courts have the inherent power to develop the common law, but the Constitutional Court may do so only in constitutional matters. Two forms of constitutional normative effects may be distinguished: direct (as in sections 2 and 8(1)) and indirect (as in section 39(2)). In terms of the latter the spirit, purport and objects of the Bill of Rights are to guide the development of the common law.
 Thirdly the interaction between the common law and the Constitution is thoroughly explored with reference to common law rules that are in conflict with the Constitution as well as where the common law already provides protection for the rights provided by the Bill of Rights. These matters are explored with reference to a number of recent judgments of the Constitutional Court, in some of which the common law was effectively developed.
 It is concluded that the firm normative thrust of the Constitution may well prove to be a rich source of principle for the development of the common law and that the flexibility of the common law may facilitate a cross-pollination between it and the Constitution.

Having established in a broad comparative survey what caused the preponderance of judge, legislator or jurist in Europe, I now intend to return to my starting point, the difference between the English common law and the rest of Europe. The reason why the English judiciary played such an exceptional role has been established, but this fact does not by itself explain why the English common law is so different. One can very well imagine an English, judgemade variant of a common European law. Thus one hears that at the present time the same European Community rules are not interpreted similarly on the Continent and in the United Kingdom. Judges' law in one country and legislators' law in others would normally have produced some differences, but these might have been technical only, without involving the substance of the law. To put it in more concrete terms: one can imagine a situation where the substance of European feudal law remained common to all countries, even if its development in the course of the later Middle Ages was the task of the judiciary in some countries and of the legislature in others. Equally one can imagine that more progressive laws corresponding to an urban and commercial society would have arisen through the action of judges in some countries and of kings and estates in others. The difference between common law and continental law goes much further than that: they were not only developed by different organs, their very substance was different, the one being traditional, native and feudal, the other new, foreign and Roman.

Re-Examining the Constitutionality of Remittitur Under the Seventh Amendment

Building on its success and reputation as a leading reference work on the English law and practice of commercial arbitration, this new edition reflects a sea of change within the arbitration field over the past decade. A new, more user-friendly structure takes the reader through each step of the arbitration process from start to finish, whilst retaining the first edition's unique comparative perspectives of arbitration law and practice in other common law and civil law jurisdictions. The book explains the application of provisions under the Arbitration Act 1996, as reformed by the Arbitration Act 2025, and documents the latest institutional rules affecting the arbitration process including the ICC Arbitration Rules 2021, the LCIA Arbitration Rules 2020, and the latest provisions from the Arbitration Act 2025. It provides detailed analysis on the latest legal authorities, including significant developments to the applicable law to the arbitration agreement, the arbitrator's duty of disclosure, and the granting of anti-suit and anti-arbitration injunctions, and discusses the current and potential future impact of wider societal developments such as Brexit and the use of technology and artificial intelligence. The book is an ideal reference point for the judiciary, professionals working in commercial arbitration, and an essential primer for academics, students and researchers looking for comprehensive coverage of English arbitration law and practice with an international comparative perspective.

This chapter provides an introduction to the English Legal System. Specifically, it explains the meaning of the terms ‘English’, ‘legal’, and ‘system’. It first provides an overview of the constituent parts of the United Kingdom of Great Britain and Northern Ireland, namely England, Wales, Scotland, and Northern Ireland. It describes the types of law that exist and attempts to define what law is. It then discusses the English legal system, which is based on common law and is an adversarial system.

While there has been no paucity of theoretical discussion on the law of contract, there has, in English law at least, been little clear evidence from the courts themselves which particular jurisprudential approach is favoured.' This is not surprising, given the rather formal nature of the English legal system.3 Herein, perhaps, lies a clue that English law in general and its contract law in particular are generally oriented towards so-called 'black letter law'; or, to be more precise, that the generally favoured conception of law is that of positivism.4 As already mentioned, however, there has been little express acknowledgement of this approach by the courts. This is why two important cases decided by the Court of Appeal5 merit consideration. Each of these decisions has had (for the time being at least)6 a profound influence upon its own particular area of the English common law of contract. The first, Kleinwort Benson Ltd v Malaysia Mining Corp Bhd,7 concerned the legal effect of a specific clause in a letter of comfort; the second, Bank of Nova Scotia v Hellenic Mutual War Risks Association (Bermuda) Ltd, The Good Luck,8 was a lengthy

As a result of common recognition and judicial adoption, all public law is based on English law. Lacunae are addressed by reference to English law. The same happens in cases of private international law where the English common law is directly applied as the law of Malta unless otherwise prescribed by law or judicial dicta. All laws and other official communications are issued in English and Maltese, whereas most commercial and banking documents are drawn in English. Commercial law is heavily influenced by English law. The foundations of the Maltese Companies Act 1995 lie in the British Companies Act 1985 and the Insolvency Act 1986. On the other hand, the Maltese financial services legislation package (consisting of fourteen Acts including the Investment Services Act (Chapter 370), Banking Act (Chapter 371), Prevention of Money Laundering Act (Chapter 373), Insurance Business Act (Chapter 403), is consistent with European Union (EU) directives. During its accession negotiations with the EU, Malta screened its laws together with the European Commission and reviewed them in line with European law. Following Malta’s accession to the EU, directives and regulations issued by the relative European institutions find concrete application within the local legal system.