scholarly journals The mysterious case of the successful appeal and the missing costs award: Competition and Markets Authority v. Flynn Pharma Limited

2020 ◽  
Vol 19 (4) ◽  
pp. 151-161
Author(s):  
Sophie Lawrance ◽  
◽  
Aimee Brookes ◽  
Keyword(s):  
Standard Approach ◽  
Starting Point ◽  
Court Of Appeal ◽  
Award Competition

In May 2020 the Court of Appeal gave judgment in Competition and Markets Authority v. Flynn Pharma and Pfizer, which adjusted the starting point for costs awards following successful appeals of Competition and Markets Authority decisions. Following this judgment, such awards by the Competition Appeal Tribunal must start from the position that no order as to costs should be made against the CMA, rather than the standard approach of ‘costs follow the event’ that had been the CAT's established practice. This article examines the rationale for the CAT's past practice, the basis for the Court of Appeal's judgment altering that approach, and considers the potential implications the judgment may have.

scholarly journals There is no Such Thing as a Sham Trust

2013 ◽  
Vol 44 (1) ◽  
pp. 115
Author(s):  
BoHao (Steven) Li
Keyword(s):  
New Zealand ◽  
Legal Issues ◽  
Starting Point ◽  
Bilateral Transaction ◽  
Appeal Decision ◽  
The Law ◽  
Trust Law ◽  
Court Of Appeal ◽  
Law Commission

The Court of Appeal decision in Official Assignee v Wilson is the leading New Zealand case on "sham trusts". Obiter, O'Regan and Robertson JJ held that for a sham trust to exist, the settlor and trustee must have a common intention to not create a trust. Post-Wilson, debate continues over the precise elements that render a trust a sham. The Law Commission suggested that the sham doctrine, as a means of analysing the validity of an express trust, may not be the best approach. A better starting point would be a return to the certainty of intention requirement. In arguing that the Law Commission's recommendation is correct, this article will discuss three legal issues: whether an express trust is a unilateral or bilateral transaction; whether the excluded evidence has always been part of the objective intention requirement; and whether the legislative and policy factors have made foreign trust law distinct from New Zealand trust law. Finally, this article will expand on the test proposed by the Law Commission.

The Present Law

2015 ◽  
Author(s):  
Michael Ashdown
Keyword(s):  
Supreme Court ◽  
Present State ◽  
Active Role ◽  
Starting Point ◽  
The Supreme Court ◽  
The Law ◽  
The Relationship ◽  
Court Of Appeal

The starting point for any consideration of the Re Hastings-Bass rule must now be the Pitt v Holt and Futter v Futter litigation, which culminated in the 2013 decision of the Supreme Court in both cases. The judgment of Lord Walker is the leading exposition of the rule, and is likely to remain so for some time. However, it is not helpful to read Lord Walker’s judgment in isolation. At first instance both Pitt v Holt and Futter v Futter were decided on the basis of law which seemed then to be well settled and entirely orthodox. However, unlike in any of the Re Hastings-Bass rule cases which preceded them, Her Majesty’s Revenue and Customs played an active role in the proceedings, and after the taxpayer succeeded at first instance in each case, obtained permission to appeal to the Court of Appeal. The present state of the law owes its shape largely to the judgment in that court of Lloyd LJ, in the first appellate decision on the Re Hastings-Bass rule, which reformulated the rule so as to accord with important principles of English equity and trusts concerning the relationship between trustees and beneficiaries, and the supervision of the court.

Cartesian Circles and the Analytic Method

2020 ◽  
Vol 60 (4) ◽  
pp. 393-409
Author(s):  
Thomas Feeney ◽  
Keyword(s):  
Standard Approach ◽  
Analytic Method ◽  
Starting Point ◽  
Original Argument ◽  
Cartesian Circle

The apparently circular arguments in Descartes’s Meditations should be read as analytic arguments, as Descartes himself suggested. This both explains and excuses the appearance of circularity. Analysis “digs out” what is already present in the meditator’s mind but not yet “expressly known” (Letter to Voetius). Once this is achieved, the meditator may take the result of analysis as an epistemic starting point independent of the original argument. That is, analytic arguments may be reversed to yield demonstrative proofs that follow an already worked-out order of ideas. The “Cartesian Circle,” for example, is circular only when Descartes’s original analytic argument is mistaken for the demonstration that it enables. This approach to Cartesian Circles is unlike the standard approach, which attempts to show that Descartes’s original arguments do work as demonstrations after all.

PRIVATE AUTONOMY AND MARITAL PROPERTY AGREEMENTS

2010 ◽  
Vol 59 (3) ◽  
pp. 571-603 ◽  
Author(s):  
Anne Sanders
Keyword(s):  
Comparative Approach ◽  
Relationship Analysis ◽  
Starting Point ◽  
Contractual Relationships ◽  
Marital Property ◽  
Financial Consequences ◽  
English Law ◽  
Private Autonomy ◽  
Court Of Appeal

AbstractAfter the Court of Appeal decision in Radmacher v Granatino, the question whether English law should introduce enforceable pre-nuptial or marital property agreements came into focus again. Taking the decision as a starting point, the article argues in favour of introducing such agreements. Adopting a comparative approach, the article explains how such agreements are used in Germany and demonstrates that the idea of private autonomy, which has been regarded as the basis of pre-nuptial property agreements in Germany since the 19th century, can explain why couples should be allowed to make their own decisions with respect to the financial consequences of the breakdown of their relationship. Analysis of the different notions of contract in German and English law as well as comparing marriage with partnerships and other long-term contractual relationships illustrates not only the historical reasons why such agreements have not been allowed so far, but also helps to understand what safeguards the legislator and the judiciary could apply to ensure that parties do not abuse their freedom.

scholarly journals LA TRADUCTION DES NOMS COMPOSÉS JURIDIQUES ANGLAIS EN -ING DANS LES LANGUES ROMANES

2017 ◽  
Vol 30 ◽  
pp. 107-125
Author(s):  
Corina VELEANU
Keyword(s):  
Linguistic Analysis ◽  
Romance Languages ◽  
Contrastive Analysis ◽  
High Court ◽  
Languages In Contact ◽  
Compound Nouns ◽  
Starting Point ◽  
Hands On ◽  
Target Languages ◽  
Court Of Appeal

The aim of this paper is to analyse the behaviour of -ing compound nouns in the process of their translation into Romance languages. The starting point of this analysis is our research into the entry of -ing simple nouns in the legal vocabulary of Romance languages, which we presented at the 10th International Days of the Lexicology, Terminology and Translation Network (University of Strasbourg, 2015). The method of the present research consists in a contrastive analysis of the entry of English compound nouns containing the morpheme -ing in the legal vocabulary of French, Romanian, Italian, Spanish and Portuguese, in order to assess both the translating differences in terms of perception between the simple and compound -ing structures, and the degree of permeability of the legal target-languages in contact with the legal English terms. One of the practical purposes of the present research will be offering a linguistic analysis basis to legal translators, as we founded our work on our hands-on experience as a legal translator and interpreter with the Tribunal de Grande Instance (High Court) of Lyon and the Court of Appeal, as well as a lecturer in legal English and translation.

scholarly journals THE NEW INTERNATIONAL CHAMBERS OF THE PARIS COURTS – INNOVATIVE WAY FOR RESOLUTION OF COMMERCIAL DISPUTES

2018 ◽  
Vol 28 (1) ◽  
pp. 241-246
Author(s):  
Ljuben Kocev
Keyword(s):  
Dispute Resolution ◽  
Recognition System ◽  
Point Of View ◽  
The European Union ◽  
Economic Point ◽  
Starting Point ◽  
Rules Of Procedure ◽  
Council Regulation ◽  
Court Of Appeal ◽  
The Eu

The process of the withdrawal of the United Kingdom form the European Union has been discussed predominantly from a political and economic point of view. However, the consequences are more far reaching. With UK on the doorstep of leaving the EU, the decisions issued by its courts would no longer benefit from the recognition system provided in the Brussels Regulation (Council Regulation (EC) No. 44/2001). As a result of this, it is expected that London would no longer be seen as a primary destination for international litigants.In the awaiting of the aftermath from the Brexit, other cities and member state countries of the EU have started the race to position themselves as the next “legal hub”. While other member states have been vocal about offering alternative courts, so far France has been at the forefront of this initiative. On 7 February 2018 two Protocols were signed by the French Minister of Justice, the President of the Paris Bar, and the presidents of the Paris Court of Appeal and the Paris Commercial Court. With the first protocol amendments were made to the already existing International Chamber within the Paris Commercial Court, whereas with the second Protocol a new International Chamber has been created within the Paris Court of Appeal. The aim of the creation of these international divisions within the Paris Court is to create an attractive jurisdictional system which would meet the expectations of the economic actors. Paris has already been one of the most important world centers for dispute resolution as a result of the work of the International Chamber of Commerce and its work in the field of Alternative Dispute Resolution (ADR). However, with this initiative Paris has an opportunity to further strengthen its attractiveness.The adoption of the two Protocols is a groundbreaking move which sets forth innovative rules of procedure, incorporating unique approaches in the field of international commercial litigation. The rules of procedure contain an increased level of flexibility offering the parties a chance for litigations with great similarity to arbitration. Most notably, the new Protocols provide for the usage of English as language in the course of the proceedings, adapted procedure which should better suit the need of the parties, focus on oral testimonies instead of written witness and expert submissions, possibility for cross – examination, broader scope of tools for securing evidence, such as requests for document production, as well as the possibility of non- French lawyers to appear in front of the Courts. The aim of this article is to provide an insight in the new structure of the International Chambers by reviewing the novelties in the two new Protocols. The article reflects on similar initiatives which have been undertaken in other EU members and countries worldwide, and whether this can be the starting point for more drastic and revolutionary reforms in the traditional litigation system.

Principled sentencing for drug supply offences: Revised methamphetamine sentencing guidelines in New Zealand

2020 ◽  
Vol 6 ◽  
pp. 205032452094234
Author(s):  
James A Foulds ◽  
David Nutt
Keyword(s):  
New Zealand ◽  
Mental Health Problems ◽  
Sentencing Guidelines ◽  
Community Based ◽  
Class A ◽  
Law And Policy ◽  
Starting Point ◽  
Mitigating Factors ◽  
Moral Culpability ◽  
Court Of Appeal

Methamphetamine was reclassified as a Class A drug in New Zealand in 2003. This meant harsher sentences for people convicted of its manufacture, importation or supply. Despite this, the number of convictions for methamphetamine-related offending continued to increase. In 2019, the New Zealand Court of Appeal agreed to review the sentencing of people convicted of methamphetamine offences on the grounds that some sentences were disproportionately severe. This resulted in a guideline judgment which lowered penalties for offences involving small amounts of methamphetamine (up to 5 grams). Community-based sentences replaced imprisonment as the lower bound of the starting point for sentence calculation. The Court of Appeal highlighted that the presence of addiction, mental health problems or social disadvantage should be taken into account as potential mitigating factors in sentencing. The Court accepted that these factors diminished moral culpability and reduced the deterrent impact of prison sentences. In this article we review the law and policy background to the New Zealand Court of Appeal proceedings, and discuss the reasoning behind the Court’s judgment.

Orams V. Apostolides: A Case Study on the Application in English Law of the Brussels I Regulation in the Light of the Act of Accession 2003

2007 ◽  
Vol 14 (2) ◽  
pp. 119-146
Author(s):  
Phoebus Athanassiou
Keyword(s):  
Test Case ◽  
The European Union ◽  
Court Of Justice ◽  
European Court ◽  
Starting Point ◽  
The Status ◽  
Recognition And Enforcement ◽  
The Impact ◽  
First Time ◽  
Court Of Appeal

This article uses a recent ruling of the High Court of Justice of England and Wales as the starting point for an enquiry into the interpretation of Protocol no. 10 to the Act of Accession 2003 and, more particularly, into its effects on requests for the recognition and enforcement of Cypriot court judgments formulated on the basis of the Brussels I Regulation. The High Court's ruling is of some significance, not only because Protocol no. 10 becomes, for the first time since its adoption, the subject matter of judicial interpretation but, also, because of its value as a test case on the European judiciary's perception of the impact of the reforms wrought by the Brussels I Regulation on the status quo ante in this field and as an illustration of the wider legal complications inherent in the participation in the European Union of a de facto divided Member State. This article also anticipates some of the arguments that the Court of Appeal and, eventually, the European Court of Justice and the European Court of Human Rights might be faced with in deciding how best to address the broader legal issues that this case raises.

Mosaic-Based Relevance Feedback for Image Retrieval

2011 ◽  
pp. 837-841
Author(s):  
Odej Kao ◽  
Ingo la Tendresse
Keyword(s):  
Image Retrieval ◽  
Relevance Feedback ◽  
A Priori ◽  
Standard Approach ◽  
Content Based Image Retrieval ◽  
Query Image ◽  
Starting Point ◽  
Image Ranking ◽  
Image Query ◽  
Similar Sample

A standard approach for content-based image retrieval (CBIR) is based on the extraction and comparison of features usually related to dominant colours, shapes, textures and layout (Del Bimbo, 1999). These features are a-priori defined and extracted, when the image is inserted into the database. At query time the user submits a similar sample image (query-by-sample-image) or draws a sketch (query-by-sketch) of the sought archived image. The similarity degree of the current query image and the target images is determined by calculation of a multidimensional distance between the corresponding features. The computed similarity values allow the creation of an image ranking, where the first k, usually k=32 or k=64, images are considered retrieval hits. These are chained in a list called ranking and then presented to the user. Each of these images can be used as a starting point for a refined search in order to improve the obtained results.

scholarly journals Eyes Wide Shut: The Alberta Court of Appeal’s Decision in R. v. Arcand and Aboriginal Offenders

2011 ◽  
Vol 48 (4) ◽  
pp. 987
Author(s):  
Jonathan Rudin
Keyword(s):  
Appellate Court ◽  
Correctional Facilities ◽  
Lower Court ◽  
General Deterrence ◽  
Sentencing Decisions ◽  
Starting Point ◽  
The Supreme Court ◽  
Court Mandated ◽  
Aboriginal Offenders ◽  
Court Of Appeal

R. v. Arcand was no ordinary sentence appeal.  It was a reconsideration of four previous Alberta Court of Appeal sexual assault decisions.  It was an opportunity to discuss the significance of starting point sentences - essentially appellate court mandated starting points to be followed by lower court judges when issuing sentences for specific sub-categories of offences.  The decision also purports to provide a clear-eyed assessment of the problems with sentencing in Canada since the passage of Bill C-41 in 1996 and a way out of the morass of unprincipled sentencing decisions by lower judges that have eroded Canadians’ faith in the justice system itself.  However, there is something missing in the decision.  The force of the reasoning advanced in Arcand is strongly diminished by the Court of Appeal’s failure to advert to the Supreme Court of Canada's decision in R. v. Gladue and to the realities of Aboriginal overrepresentation in Canadian and, more specifically, Alberta correctional facilities.  Recognition of Gladue should lead to a reconsideration of the conclusions in Arcand on the issues of proportionality, Aboriginal concepts of sentencing, circumstances of the Aboriginal offender, general deterrence, and the way sentences reflect harm to victims.

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