References

BIBLIOGRAPHY

 

LEGISLATION

  • Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters, 1968 OJ L 299, 31.12.1972
  • Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matter [2007] OJ L339/3
  • Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958
  • Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters
  • European Convention on International Commercial Arbitration 1961
  • Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) – Dentists near me

 

CASE LAW

 

  • Case C-116/02 Erich Gasser GmbH v. MISAT Srl, European Court of Justice [2003]
  • Case C-148/84 Deutsche Genossenschaftsbank v Brasserie du Pecheur EU:C:1985:280; [1985]
  • Case C-185/07 Gasser GmbH v. MISAT Srl [2003] ECR I-14693
  • Case C-185/07Allianz SpA and Generali Assicurazioni Generali SpA v West Tankers Inc. EU: C: 2009:69; [2009] 1 A.C. 1138.
  • Case C-190/89 Marc Rich & Co. AG v. Societa Italiana Impianti PA, Court of Justice of the European Communities [1991]
  • Case C-281/02 Owusu v. Jackson [2005] ECR I-1383]
  • Case C-394/07 Gambazzi v. DaimlerChrysler Canada [2009] ECR I-2563
  • Case C-7/98 Krombach v Bamberski [2000] ECR I-1395
  • Commerzbank Aktiengesellschaft v Liquimar Tankers Management Inc. [2017] EWHC 161 (Comm)

 

ARTICLES

 

  • Mario Franzosi, “Worldwide Patent Litigation and the Italian Torpedo”[1997] 19 (7) European Intellectual Property Review p. 382 at 384
  • Alavi, Hamed, Khamichonak, Tatsiana, “A STEP FORWARD IN THE HARMONIZATION OF EUROPEAN JURISDICTION: REGULATION BRUSSELS I RECAST”, Baltic Journal of Law & Politics 8:2 (2015): 159–181, DOI: 10.1515/bjlp-2015-0023
  • Storskrubb, Eva “Gazprom OAO v Lietuvos Republika: a victory for arbitration?” Case Comment, E.L. Rev. [2016], 41(4), 578-589
  • Cook, Justin, “Pragmatism in the European Union: Recasting the Brussels I Regulation to Ensure the Effectiveness of Exclusive Choice-of-Court Agreements”, Aberdeen Student Law Review, 2013
  • Grenfell, Sarah, Gandhi, Kushal, McKenna Cameron “Legislative Comment, The Brussels Regulation (recast)”, Comp. & Risk [2016], 5(1), 12-15
  • Philippe Hovaguimian The enforcement of foreign judgments under Brussels I bis: false alarms and real concerns, Journal of Private International Law, (2015) 11:2, 212-251, DOI: 10.1080/17441048.2015.1068001
  • Paul Beaumont; Emma Johnston “Can Exequatur be Abolished in Brussels I Whilst Retaining a Public Policy Defence?”, Journal of Private International Law, (2010) 6:2, 249-279 – http://www.abogadosaccidenteskp.com
  • Ahmed, Mukarrum, Brexit and English Jurisdiction Agreements: The Post-Referendum Legal Landscape (September 15, 2016). M Ahmed, ‘BREXIT and English Jurisdiction Agreements: The Post-Referendum Legal Landscape’ (2016) 27 European Business Law Review 989. Available at SSRN: <https://ssrn.com/abstract=2839342>

 

 

ONLINE RESOURCES

 

  • Press release, “Recast of the Brussels I regulation: towards easier and faster circulation of judgments in civil and commercial matters within the EU”, Brussels, 6 December 2012, 16599/12, PRESSE 483
  • Štanko, Andrej “Cross-Border ‘Torpedo’ Litigation”, Common Law Review 2017, <http://www.commonlawreview.cz/cross-border-qtorpedoq-litigation#ref-7> Accessed: 2 March 2017
  • Osborne Clarke LLP “Arbitration and the Brussels Regulation I Recast, Anti-Suit Injunctions and now… Brexit” [2016] Publication No. 0000000 p.3 <http://www.osborneclarke.com/wp-content/uploads/2016/11/Arbitration-and-the-Brussels-Regulation-I-Recast-Anti-Suit-Injunctions-and-now…-Brexit.pdf> Accessed: 2 March 2017
  • Archive – <https://www.gov.uk/government/topical-events/eu-referendum> Accessed: 5 March 2017

 

OFFICIAL REPORTS

 

  • Report [29 June 2010] on the implementation and review of Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters 2009/2140(INI)
  • European Parliament, Report [29 June 2012] on the implementation and review of Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (2009/2140(INI)), doc. No. A7-0219/20

part 3 of debate

Hussman Manufacturing Ltd v Weir 1998 IRLR 288 –

Madam Chairman, with regards to the Hussman case cited by my learned friend opposite, I would be inclined to infer that whilst the application of the rationale of that case, to the case in question is accurate; only in so far as the established facts of the case, being that the tribunal was correct in deriving at such a decision as the plaintiff in that case had an expressed term within the contract and was made aware of such changes.

Conversely, it cannot then be deduced that such a comparison can be made to the current case as my client was not given sufficient notice, there was no expressed term in her contract nor had given any form of consent. Thus, the deduction is still deemed to be unlawful and in violation of Section 13 of ERA 1996

An employer will only be able to make a unilateral change in the number of hours worked if the contract expressly permits him to do so. This mirrors the case in London with the mechanic. Their clause was deemed unacceptable in the case of defendant vs Mobile mechanic London website.  Clauses allowing variations in hours will not be enough as stated previously in the Potter v Hunt case- as they permit a reorganisation of existing hours, not an increase or decrease.

The EAT held  that as the contract permitted this change, the employee could not claim that the consequent reduction in pay through loss of unsocial hours payments amounted to an unlawful deduction from wages.

 

 

Felthouse v Bindley ‘Conduct Argument”

Felthouse v Bindley ‘Conduct Argument”

Madam Chairman, with regards to the Pename case cited by my learned friend opposite I would like to point out that; the notary public of London is not in favour.

In respect to deduction from wages, this does not enable an employer to make a deduction based on the conduct of the worker.

This is highlighted in Section 13 (5) where it states that:

For the purposes of this section a relevant provision of a worker’s contract having effect by virtue of a variation of the contract does not operate to authorize the making of a deduction on account of any conduct of the worker, or any other event occurring, before the variation took effect.

And under Subsection 6; it concludes the same principle of law but; For the purposes of an agreement or consent signified by a worker.

Thus, A deduction cannot be made based on conduct, Irrespective of whether worker has consented to such deductions.

Additional (full subsection 6 )

For the purposes of this section an agreement or consent signified by a worker does not operate to authorize the making of a deduction on account of any conduct of the worker, or any other event occurring, before the agreement or consent was signified.

 

 

How to rebuttal the employment argument

Discount Tobacco & Confectionary v Williamson 1993  –

Madam Chairman, with regards to the Discount Tobacco case cited by my learned friend opposite, I would like to make clear that  

The Employment Appeal Tribunal on 12 January 1993 dismissed the appeal.

 

The EAT held: The Industrial Tribunal had not erred in holding that the appellants were in breach of the Wages Act 1896 in offsetting monies due to the respondent employee on his dismissal against stock shortages, notwithstanding that the employee had given written authorization for the employers to make deductions from his wages in respect of such losses.

 

The Tribunal had correctly concluded that, having regard to the provisions of s.1(4)(b) of the Wages Act, the employee’s authorization did not render the deductions lawful because the losses in question had occurred before the authorization was given. 

 

Therefore, my claim still stands that the deduction is unlawful based on the findings from both Tribunals.

 

additional info –  Sub Section 5 and 6 Prevent pressure.

 

Section 1(4)(b) Wages Act 1986 requires that an employee’s written agreement or consent to the making of a deduction from wages must have been given before the conduct or event giving rise to the deduction.  now Section 13 (2)

 

An Industrial Tribunal upheld his complaint and argued the cell phone repair Austin company  employers’ action amounted to unlawful deductions from wages under the Wages Act. The Tribunal found that the authorization of 14 March was not such as to render the deductions legal.

 

On appeal, it was submitted for the employers that under s.1(4)(b), a deduction is legal if the employee’s written consent was given after the conduct or other event had occurred but before any deduction was made.

 

Carriage of Goods

Carriage of Goods

Goods have to often be transported considerable distance, whether at the instance of seller por buyer and a carrier is often employed to effect that transport. In essence, it is being hired to carry goods safely from A to B in own vehicle.  3 forms of common carriage; Land, Sea and Air.

LAND – A carrier will either be private or a common carrier. Construed as making a continuing offer to carry open to acceptance by anyone i.e. service available to public see. Barr & Sons v Caledonian Railway (1890)

Most carriers expressly contract out of common carrier status – relationship is then regulated by contract. Deemed to make a continuing offer to carry which can be accepted by anyone. If refuse to carry = damages (unless refusal justified). Bound by any advertised rates. Strict liability for loss/damage to goods various exceptions to strict liability exist such as;

  • No capacity in vehicle; – Spillers & Bakers v GWR [1911]
  • Goods not delivered in time for loading; – Garton v Bristol & Exeter Ry Co (1861)
  • Carriage of goods dangerous; – Barnfield v Goole & Sheffield Transport Co [1910]

If no advertised rate, must charge reasonable rate. Carrier strictly liable for damage to goods (AKA edictal liability). Except: Act of God; Act of Queen’s enemies Inherent vice of goods; Fault of consignor But, liability will still arise if carrier contributed to loss. Strict liability, Carriers Act 1830 s1, no common carrier shall be liable for loss or injury to parcels containing certain articles exceeding £10.

Exclusion of liability Unfair Contract Terms Act 1977 applies to all contracts of carriage -for Scotland – s15 (2) (c) carriage contracts. Contract term will have no effect insofar as it excludes liability: if it was not fair and reasonable to incorporate the term in the contract, s16 (1) (b). Any limitation clauses are construed contra Proferentem. Graham v Shore Porters Society 1979 SLT 119

AIR – Amended by 1995 Hauge Protocol and 1975 Montreal Convention 1999. The convention contemplates that the consignor deliver a document known as an air waybill – which is a record of cargo receipt. It should be signed by all parties.  Article 18 –The carrier is liable for damage sustained in the event of the destruction or loss of or damage to, cargo. Condition – that the event which caused the damage took place during the carriage by air. Again series of exemptions in art 18. Not liable if Act of war, inherent defects, act of public authority.

SEA – Under strict liability at common law, same as road Wood v Burns 1839. Hague-Visby Rules; If the loss or damage is not apparent, the notice must be given within three days of the delivery of the goods. The notice in writing need not be given if the state of the goods has, at the time of their receipt, been the subject of joint survey or inspection.  Art 4 Neither the carrier nor the ship shall be liable for loss or damage arising or resulting from unseaworthiness unless caused by want of due diligence on the part of the carrier to make the ship seaworthy and to secure that the ship is properly manned, equipped and supplied

Unforeseen challenges… Ebola virus – the legal challenges 129 September 2014By Edward Hicks

Rights in Security QUASI – SECURITY

Rights in Security QUASI – SECURITY

Heritable securities granted by third parties are envisaged by Conveyancing and Feudal Reform (S) Act 1970. No personal obligation by owner, debt due only by debtor. Many small business funded by banks. Require security over family home. Where owned jointly spouse required to grant security

The standard security held over any land or real right in land may be registered in the register of Sasines or land register in Land reform 1970 act. Once it is registered the security will have a real right.

This is not caution. Sterilising use of family home as security would inhibit commerce. No duty of care or duty of disclosure at common law or so it appeared. No duty of disclosure under cautionary obligation either

Position in England began to change in1980s in Court of Appeal and law was finally clarified in House of Lords in Barclays Bank v O’Brien (1994) Held creditor owed duty to advise spouse because ought to be aware of propensity of spouse to unduly influence other

House of Lords reached same result in Smith v Bank of Scotland. Law of cautionary obligations where there was no duty of disclosure was clear. Use made of exceptions such as French v Cameron. Settled on contractual good faith as basis of new principle. Creditor obliged to advise ‘spouse-cautioner’ to be separately advised

Typical mortgage is secured by ‘all sums’ security. Where granted by both spouses for joint obligation eg. House purchase. Both benefit –duty never arises. Royal Bank v Wilson (2003) – Even when security subsequently used for husband’s business debts. Does principle only apply to Matrimonial home? Not clear

Duty is based on good faith of creditor. If creditor reasonably believes spouse has been separately advised still in good faith even if not the case – Broadway v Clydesdale Bank (2000 + 2001) and Forsyth v Royal Bank (1999)

England HL has developed requirements considerably in Royal Bank v Etridge [No 2] Not followed in Scotland, Clydesdale Bank v Black & Thomson v Royal Bank. Current state of Scots law uncertain and unsatisfactory

A standard security may be transferred in whole or in part via assignation with the two forms prescribed by Sch.4. It is possible for a debtor to grant more than one standard security over the same property, the first has highest priority however open to challenge. Holder of standard security may find he has competition, thus he can seek to inhibit the debtor form alienating his heritable estate.

Where a debtor is in breach of some non-monetary obligation, the creditor may serve a notice calling on the debtor to remedy the default within a month S21.