ON 5 October 2016, the International Court of Justice handed down its decision in the three parallel proceedings involving the Marshall Islands (as applicant) and India, Pakistan and the UK (as respondents): Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v India). The Marshall Islands claimed that the respondent states had failed to meet their obligation to negotiate the cessation of the nuclear arms race and nuclear disarmament in good faith, either under Article VI of the Non-Proliferation Treaty (claim against the UK) and/or customary law (against all three respondents). All three respondents formulated objections to jurisdiction and admissibility. In all three cases, they objected that a “dispute” did not exist between them and the applicant. The Court, by a narrow majority (extremely narrow in the case against the UK: by the casting vote of the President), declined to exercise jurisdiction on the basis that no dispute existed between the parties.

WHEN the ambit of the criminal law is narrowed judicially, what impact should this have on convictions previously secured under the disavowed, broader rules? This question was considered by the Court of Appeal in Johnson and Others [2016] EWCA Crim 1613, [2017] 1 Cr. App. R. 12.

IN Miller v The Queen [2016] HCA 30, the High Court of Australia (HCA) declined to follow the Privy Council and UK Supreme Court (UKSC) in abolishing the doctrine of extended joint criminal enterprise, as PAL is known in South Australia. Under the Australian doctrine, liability for murder is imposed where an individual “is a party to an agreement to commit a crime and foresees that death or really serious bodily injury might be occasioned by a co-venturer acting with murderous intention and he or she, with that awareness, continues to participate in the agreed criminal enterprise” (at [1]). This reflects the very position that was abandoned in Jogee [2016] UKSC 8; [2016] 2 W.L.R. 681 Ruddock v The Queen UKPC 7 as a “wrong turn” of the English common law.

STUDENTS – and indeed judges – of the law of contract have been sorely tried by White & Carter (Councils) Ltd. v McGregor [1962] A.C. 413. Mercifully, other propositions about the breach and discharge of contracts seem elementary.

IN Prince Alfred College Incorporated v ADC [2016] HCA 37, the High Court of Australia (HCA) has once again considered the appropriate test for establishing vicarious liability of employers for the wrongful acts of their employees. The decision will be of interest to tort lawyers in the common-law world for at least four reasons. First, the Court looked afresh at the test for vicarious liability in the context of intentional wrongdoing and has accordingly clarified the confusion arising from its earlier decision in New South Wales v Lepore [2003] HCA 4; (2003) 212 C.L.R. 511. Secondly, the Court expressed very strong disagreement with the decision of the UK Supreme Court handed down just months earlier in Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11; [2016] A.C. 677. The Court apparently regarded Mohamud as having in effect abandoned the Lister qualification that mere opportunity was not enough to satisfy the close connection test (Lister v Hesley Hall Ltd. [2001] UKHL 22; [2002] 1 A.C. 215). Thirdly, the Court appears to have interpreted the relevant English authorities as espousing a Caparo-like criterion of fairness and justice as a separate stage of the close connection test (Caparo Industries plc v Dickman [1990] 2 A.C. 605). That interpretation is questionable. Finally, the Court has articulated a new test in Australian law for vicarious liability reasoning based on whether the employment provided the “occasion” for the wrongdoing to be committed. This prompts a reflection on the difference between “occasion” and “opportunity”, and how this new test is to be applied in practice.

IN the Court of Appeal in Patel v Mirza [2014] EWCA Civ 1047; [2015] Ch. 271, Gloster L.J., in sympathy with the “hapless law student”, said of the illegality concept “it is almost impossible to ascertain … principled rules from the authorities relating to the recovery of money or other assets paid or transferred under illegal contracts” (at [47]). The Supreme Court ([2016] UKSC 42; [2016] 3 W.L.R. 399) has clarified the law in many respects. In other respects, it may have created some new uncertainties and no diminution in work for inventive lawyers and some of their more dubious clients.

IN Arcadia Petroleum Ltd. v Bosworth [2016] EWCA Civ 818, three companies in the Arcadia Petroleum Group sued their de facto CEO and CFO and others in England for siphoning off money for their own benefit. One of the companies was incorporated in England, the others in Singapore and Switzerland. The companies claimed for unlawful means conspiracy, breach of fiduciary duty, dishonest assistance and knowing receipt. Could these claims all be litigated in England under the Lugano Convention, which allocates jurisdiction to determine disputes among the members of EFTA (the provisions at issue are identical to those of the Brussels I Regulation (No 44/2001) applicable in the EU)? The conclusion depended on whether the claims related to a contract of employment, or were contractual or were tortious. Each characterisation led to a different court with jurisdiction. The Court of Appeal held that mostly they could be litigated in England; only those for breach of fiduciary duty arising during the period of the directors' employment could not.

THE recent and high-profile decisions of the Court of Justice (Case C-333/14, ECLI: EU:C:2015:845) and of the First Division of the Inner House of the Court of Session ([2016] CSIH 77) in The Scotch Whisky Association and Others v The Lord Advocate and The Advocate General for Scotland have shed further light both on the role of national courts in cases where Member States invoke the protection of public health to justify derogations from the TFEU provisions on the free movement of goods and on the application of the proportionality test. The model of free movement provided in the Treaty is not one that guarantees an entirely untrammelled freedom of trade across the EU or the automatic precedence of common-market objectives. While Article 34 TFEU provides for the removal of national obstacles of a non-fiscal nature, Article 36 TFEU allows Member States, in the absence of harmonisation, to argue a number of public-interest grounds to justify national measures that, in principle, contravene Article 34 TFEU. The protection of public health ranks very prominently in this list of interests. However, although it is for the Member States to decide the appropriate level of health protection that they wish to ensure (C-174/82, Sandoz [1983] E.C.R. 2445), the national action must be proportionate and national authorities must select the action that is the least restrictive of intra-Union trade (Case 40/82, Commission v UK [1984] E.C.R. 283). The outcome in The Scotch Whisky Association case has highlighted the difficulties involved in choosing among alternatives the least restrictive measure that would achieve the public-health objectives of the national legislation. Moreover, it has demonstrated clearly, in these difficult times for the EU, that EU law can be interpreted and applied to safeguard sensitive national policies.

THE judgment of the General Court in Case T-472/13, Lundbeck v Commission EU:T:2016:449 is the first decision of the CJEU on the application of EU competition law to reverse patent settlements. It confirms that Article 101 TFEU applies to agreements that restrict potential competition, and discusses the circumstances in which reverse patent settlements will amount to a restriction by object. However, the judgment provides little by way of practical guidance for those involved in negotiating patent settlements and leaves many questions unanswered.

DOES the posting of a hyperlink to somebody else's work that has been uploaded onto the Internet infringe their copyright? Although dissenters did exist, most copyright lawyers long assumed that the answer to that question was an obvious “no”. In 2014, this nonchalant approach was rejected by the CJEU in Svensson (Case C-466/12, EU:C:2014:76) in favour of a more complex analysis. More recently, the CJEU's approach to hyperlinks has been further developed in GS Media (Case C-160/15, EU:C:2016:644).

The conflict between common law and equity on the question of when time should be regarded as being “of the essence” for the performance of a contract has often been debated, as has the impact of its resolution by the Judicature reforms in favour of equity's more relaxed approach. Even so, it is tolerably clear that the two approaches have been substantially assimilated within general principles of discharge for breach. If, as a matter of construction, a time stipulation is a condition, then time is of the essence. Alternatively, time may have become of the essence by an effective notice to perform served by a promisee. If the contract has been validly discharged on either basis, specific performance will not be ordered in favour of the promisor.1

This article seeks to demonstrate three things. First, the orthodox conceptualisation of the tort of public nuisance is flawed, since: (1) it is in violation of basic private law principles related to privity and the actionability of crimes and (2) if taken seriously would mandate that the tort be abolished (as torts protect private not public rights). Second, the rights at the heart of the tort are the privately actionable rights to pass and repass on public highways and to fish in public waters, and that it is plausible that a sophisticated legal system would recognise such rights. Third, a tort reconceptualised in this way can make sense of: (1) the special damage rule that is generally thought arbitrary and (2) the general intuition that the recovery of damages for pure personal injuries is best left to other torts.

The 2013 horsemeat scandal shone a bright light on some of the darkest corners of supply-chain governance across the EU, revealing a blind spot in current EU food law. “Beef” frozen-food products were found to contain up to 100% horse. The British and Irish are squeamish about eating horse. Even for those countries where horsemeat is seen as a delicacy, the horse getting into the frozen “beef” was often of poor quality and possibly contaminated with “bute”, a veterinary drug not permitted in food for human consumption. The ability of the EU's regulatory regime to prevent fraud on such a scale was shown to be inadequate. EU food law, with its (over) emphasis on food safety, failed to prevent the occurrence of fraud and may even have played an (unintentional) role in facilitating or enhancing it. Domestic law offered little better protection, thus showing the difficulties associated with the implementation of a multi-level and multi-agency regulatory regime. Beyond the regulatory system, the EU's core Treaty commitment to the free movement of goods may also have laid the ground for complex and opaque supply chains into which unscrupulous traders and middlemen could slip unnoticed.

This article considers the principle in the tort of private nuisance that the level of protection to which one is entitled from certain kinds of interference is sensitive to one's locality. It argues that the principle can be partly justified by the different costs of avoiding an interference which different localities create. However, it shows that, if the principle is to be justified in its entirety, a further justification is necessary. The article considers further justifications based on social rules, autonomy, cost minimisation, the idea of a system of equal right and an analogy to the rules on hypersensitive claimants. It largely rejects these explanations and concludes that, to the extent the locality principle requires individuals to bear substantial burdens that they would not have to bear were collective interests set aside, without compensation, it is difficult to justify.

Unjust enrichment is not calculated to strip defendants of gain at all costs, but rather to restore to the claimant the value or rights he has unjustly lost. It can therefore only justify restitution to the extent of the claimant's ultimate expense, or the defendant's ultimate enrichment, whichever is lesser. Although that “double ceiling” has not found favour (at least in England), this article defends it against perceived inconsistencies with principle and precedent, and proposes it as a solution to three unresolved doctrinal problems in the law of unjust enrichment: claims for improvements to property, subjective overvaluation and incidental benefits.