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PER INCURIAM MICHAELMAS 2017

CAREERS FEATURE Top insights into how to spend your ‘vacation scheme’ or ‘internship’ wisely!

THE 24TH WILLEM C. VIS

INTERNATIONAL COMMERCIAL ARBITRATION MOOT

Attending the highlight of the academic year.


MICHAELMAS 2017

President’s Welcome

Editor’s Message

PRESIDENT’S WELCOME

EDITOR’S MESSAGE

DEAR READERS, Welcome to the Michaelmas edition of Per Incuriam! Yukiko, Tatiana and Rabin have put together an edition that I am sure our readers will find interesting and thoughtprovoking, with a focus on summer work placement experiences and, of course, the unmissable Tripos essays.

Lucia Azzi | President

For new freshers, I would like to introduce you to the Cambridge University Law Society (CULS). It is one of the largest and most active societies in Cambridge, putting on a vast array of socials, careers events, pro bono projects, speakers events, dinners, moots and more.

DEAR READERS, Lawrence, the Vice-President, who has been the force behind all of CULS’ projects working out, and to Cara Fung (Treasurer), Charmaine Clubb (Secretary) and Harri BellThomas (Technical Lead) for their continuous hard work. There is so much planned for Michaelmas; keep an eye out on Facebook where we will be releasing information on all of our events. We are also delighted to introduce a brand new website for CULS which has been built across the Summer and a CULS app, which you will all be able to download soon.

Welcome to the Michaelmas 2017 issue of Per Incuriam, the Cambridge University Law Society’s magazine! On behalf of the team here at Per Incuriam I would like to extend a warm welcome to everyone matriculating this October and a warm welcome back to everyone beginning their second and third years.

Yukiko Kobayashi Lui | Editor-in-Chief

Good luck for Michaelmas 2017! This summer has been incredibly busy, and I would like to say a huge thank you to the CULS committee for all of the hard work put into planning the society’s events in Michaelmas. A special thank you to Sophie

All the best, Lucia Azzi CULS President 2017-18

Rabin Kok | Deputy Editor

Tatiana Kurschner | Deputy Editor

The start of a new academic year is a time for planning and preparation, and as many of us gear up to apply for summer placements, training contracts or pupillages this winter, thoughts of jobs and careers can loom large in our minds. In light of this, myself and the team at Per Inc have designated this edition our big careers issue. Inside you will find five fulllength features by students sharing their experiences with summer work experience schemes. The pieces cover a diverse array of legal careers, and I hope that you will find them informative and helpful as you begin to navigate the world of work.

Starred Firsts, scoring in excess of 80%. For the first time, we include a script for Competition Law, a paper which has increased in popularity in recent years. We hope that you will find this script and the others published in this issue useful this term and in the academic year to come. This year, the Cambridge University Law Society is launching a blog, which will feature contributions from students and alumni on topics ranging from legal updates to career and work advice. We hope the blog will be a companion to this magazine by providing topical analysis and articles for your enjoyment throughout the year. Thanks are due to the tireless Cambridge University Law Society committee for their support and assistance. Special thanks must go also to my Deputy Editors, Tatiana Kurschner and Rabin Kok, for their fantastic work in putting together this issue. Happy reading!

We are also delighted to publish a report by Azfer A. Khan, a recent graduate of Magdalene College, of his experience of the 24th Willem C Vis International Commercial Arbitration Moot, held earlier this year in Vienna, Austria. The Cambridge team this year performed extremely well, representing Cambridge at the quarterfinals--the furthest any Cambridge team has achieved so far. And as always, we have also included a selection of exemplary Tripos essays, many of which received

Yours, Yukiko Kobayashi Lui Editor-in-Chief

If you are interested in contributing to Per Inc, drop us a line at per-inc@culs.org.uk. We accept articles from all, whether you are an academic, professional, or current student, including people from all universities.

Keep in touch! ‘Like’ our Facebook page for the latest legal developments and updates on Per Inc.

We also welcome First Class Tripos essays. Please send them typed, and with their respective year, question number, and marks indicated, along with your name, College and alternate email address.

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Facebook: fb.com/CULSperincuriam Contact: per-inc@culs.org.uk

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Contents

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CONTENTS ARTICLES

THE 24TH WILLEM C. VIS INTERNATIONAL COMMERCIAL ARBITRATION MOOT Azfer A. Khan | 2017 graduate of Magdalene College

CAREERS FEATURE

MINI-PUPILLAGE AT ATKIN CHAMBERS Andrea Chong | Downing College

VACATION SCHEME AT SLAUGHTER AND MAY

Ashpen Rajah | Downing College

VACATION SCHEME AT LINKLATERS Wahdana Bilal | Trinity College

CASEWORK VOLUNTEER AT THE BAR PRO BONO UNIT Weishi Yang | St John’s College

LEGAL INTERN AT ASTON MARTIN LAGONDA Georgie Vale | Downing College

ESSAYS

CRIMINAL LAW

Roystan Ang | St John’s College

CIVIL LAW I

Jared Kang | Wolfson College

LAND LAW

Etsuko Lim | St John’s College

LAW OF CONTRACT

Yenjean Wee | St John’s College

EU LAW

Taro Tan | Wolfson College

EQUITY LAW

Andrew Ng | Wolfson College

COMPETITION LAW

Alex Peters | Selwyn College

6-7 8 9 10 11 12 14-15 16-17 18 20-21 22-23 24-25 26-27 5


MICHAELMAS 2017

Articles

The 24th Willem C. Vis International Commercial Arbitration Moot

THE 24TH WILLEM C. VIS

INTERNATIONAL COMMERCIAL ARBITRATION MOOT For many different reasons, the Willem C. Vis International Commercial Arbitration Moot (better known as ‘the Vis’) is considered the highlight of the academic

year. Granted it is held in April, and so during the Easter break when most of us decide to finally open our textbooks, yet, taking part is a wonderful option for anyone dreading the monotony of having to pore over pages of exam notes. Azfer A. Khan | 2017 graduate of Magdalene College WHAT’S IT ABOUT? The Vis Moot is an arbitration moot – a subject completely foreign to the undergraduate tripos degree. It involves a complex international commercial contract (between two or more parties) and a dispute that the parties agree to have settled through arbitration. Arbitration is less imposing than proceedings in a court, where you sit across the table from three

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arbitrators whom you try to convince to give you an award. It’s subtly different from mooting or even debating: the focus is on being calm and polite, not on winning an argument. True to the core debaters do not get far, whereas polished and soft-spoken speakers tend to fare well. Arbitrators like to ask questions, generally because they have not yet read the brief and so genuinely want to know what is going on. Getting the facts right is winning half the battle.

The 24th Willem C. Vis International Commercial Arbitration Moot

compete for a chance to participate. In contrast, at Cambridge, the team is sometimes comprised of volunteers. Most of the preparation involves asking people who have done it before to give guidance, and the rest is reading the moot problem, which is complex and long and purposefully so. Then the team has to draft two memoranda, one from the Claimant’s perspective and one from the Respondent’s. There are awards for this, so there is much to be said for doing them well. Write them in clear and concise language if you can, because that helps. Apart from that, go for Pre-Moots (a moot before the actual moot, which at first seems redundant). They are a wonderful way to socialize and get a sense of what others’ arguments will be. Try not to be the team that plants spectators to absorb all arguments from others’ rounds.

ALL CREDIT GOES TO TEAMWORK & HOW WELL ALL OF US GOT ALONG WITH EACH OTHER. IN VIENNA

The other half is not contradicting yourself. Sounds easy? You’d be surprised.

MOOT PREP The prep at Cambridge is in some ways a less rigorous affair than at other universities; in some parts of Germany, students who participate in the Vis get a year’s worth of university credits. In Singapore, students have to take arbitration courses and must

The moot is held in Vienna, and if you have not been there before then it is a great opportunity to travel and see Austria as well. The Opening Ceremony of the moot gets larger and larger every year. This year there were more than 320 teams and over a thousand participants. It is a huge event, and you will end up meeting people from all over the world. It’s not an experience to be missed. There are four general rounds of argument, where your team plays the role

of Claimant and Respondent twice each. You are free to divide the responsibility of speaking amongst yourselves as you should choose, but keep in mind that the top prizes are only awarded to individual speakers who speak on both sides during these general rounds. If it performs well in the general rounds, a team will break into the top sixty-four teams, and from then on it is a knockout competition till the finals. More of it is luck, based on the team you face and the arbitrators you end up with, but the competition is always engaging and rewarding.

IS THE VIS FOR YOU? This year, the Cambridge team reached the quarter-finals, the furthest Cambridge has reached in the Vis moot to date. Almost every arbitrator we had commended us for a fine performance and gave us credit as one of the best teams they had seen at the moot.

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you should be revising for exams! If there is even a remote chance that arbitration might interest you, then the Vis is the place to be. Some mooting experience is definitely preferable, and there’s always many opportunities in Cambridge and elsewhere to hone your skills. It will be worth it in the end, because you will walk away with newfound friends, experiences and memories.

ACKNOWLEDGEMENTS The team this year comprised Luke Tattersall (Wolfson College) and Andrea Chong (Downing College) speaking on behalf of the Claimants, Chee Ching Sik (Trinity Hall) and Azfer A. Khan (Magdalene College) on behalf of the Respondents, along with Wahdana Bilal (Trinity College) and Darren Low (Downing College) as researchers.

All credit goes to teamwork and how well all of us got along with each other. The importance of a team with a varied background and different speaking styles, therefore, cannot be understated; it helps for the team to stand out and excel. It also helps to socialize and meet as many people as you can – in the throes of competition it is sometimes easy to forget that the Vis is a social event too, and many of the senior arbitrators are more than willing to give meaningful advice for your own career path. My advice is not to be put off by the timing of the event, right in the middle of when

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MICHAELMAS 2017

Careers Feature

Mini-pupillage at Atkin Chambers

Vacation Scheme at Slaughter and May

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CAREERS FEATURE

VACATION SCHEME AT SLAUGHTER AND MAY AT A GLANCE

CAREERS FEATURE

• • • •

MINI-PUPILLAGE AT ATKIN CHAMBERS

Length: Two days Responsibilities: Legal research, proof-reading, mini-pupillage exercises (e.g. reading the facts of a case and submissions the barrister had done, then discussing legal points in those cases) Recommended for: Anyone interested in the Bar and in construction, engineering, infrastructure or energy

Andrea Chong | Downing College

One of the highlights of my mini-pupillage experience was going to the Technology and Construction Court and seeing the advocacy of two top Silks from the top two construction sets in the UK. Having had some experience mooting, the opportunity to observe how legal analysis and arguments are set out in court grounded my expectations of what being a barrister would be like in a realistic context. I am now also able to better understand how the skills I’ve learnt in university would fit into actual practice.

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Another highlight of any mini-pupillage experience was the level of close interaction I, as a mini-pupil, had with both the barristers I shadowed and the ones I happened to meet in chambers. In addition to doing simple legal research and discussing what the barristers were currently working on, I had the opportunity to learn more about each barrister’s interests and motivation for coming to the bar over informal lunches and tea. Engaging with the barristers on a more personal level was immensely helpful for me in figuring out whether I liked the bar and the set itself.

I HAD THE OPPORTUNITY TO LEARN MORE ABOUT EACH BARRISTER’S INTERESTS & MOTIVATION FOR COMING TO THE BAR OVER INFORMAL LUNCHES AND TEA.

Responsibilities: talks, presentations, negotiating exercises, research Recommended for: Anyone interested in diverse, full-spectrum corporate work

Sitting in a Belgian pub with a waffle in one hand and a beer in the other isn’t a bad place to find yourself whilst on work experience. But that’s how I spent the second Monday of my vacation scheme with Slaughter and May this summer, the firm having been kind enough to take me to visit their Brussels office for the day. Sadly, it wasn’t all sunshine and chocolates though and the rest of the three-week scheme involved a busy schedule of talks, presentations and negotiating exercises with the remainder of my time spent helping my supervisor with various research tasks and drafting exercises.

Position: Mini-pupil at Atkin Chambers (London)

TA mini-pupillage can be seen as the ‘vacation scheme’ or ‘internship’ equivalent for barristers’ chambers in the UK. On a mini-pupillage, you are usually given the opportunity to shadow a barrister in chambers and, through that, learn more about the type of work they do at the set. While the majority of mini-pupillages are not assessed in the way most summer internships are, the purpose of going for a few mini-pupillages is to give yourself a clearer picture of what each set is like and which area of law you might be interested in practicing in.

Length: Three weeks

Ashpen Rajah | Downing College

AT A GLANCE

• • •

Position: Vacation scheme student at Slaughter and May (London)

Overall, I learnt about the kind of work a barrister does and what a typical day in chambers looks like. I discovered that, in choosing a career path, considering non-quantifiable factors – such as the way work is done (individually or in a team), the culture of a workplace, and whether I could fit in – is very important. More specific to a construction law set, I learnt that the cases were far more factually complex and large-scale than others due to the nature of the disputes. This means that one could be working on a case over a few years. The challenge of meticulously mastering the detail while representing a dispute’s overall ‘narrative’ in court or in an arbitration is perhaps what makes this area of law so interesting in practice.

Of course, the main reason I was there was to get a better feel for the firm and whilst the introductory talks on the firm’s areas of work were helpful, the true advantage of a vacation scheme is that it allows you to meet the people who work there. A major selling-point for the firm (and a phrase I heard repeatedly on the scheme) is that they are multi-specialist. This means that whilst they have several corporate groups, for instance, all of them do the full spectrum of corporate work, rather than having specialist groups for, say, insurance work. The firm’s rationale for this is that an understanding of a wider area of law makes for better lawyers and allows them to meet more of their clients’ needs. For you and me though, the important point is that it ensures trainees and associates are fed a varied diet of work, rather than being pigeonholed into a specific area. Naturally, this brings challenges, but everyone I spoke to at the firm was very enthusiastic about the approach. A second attractive feature is the Firm’s rejection of billable hours targets. In other words, there is no set number of hours for which associates are expected to bill weekly. This is not to say

that there is no pressure to work hard and it quickly became apparent from speaking to trainees that the correct question wasn’t whether they’d pulled an all-nighter, but how many. Regardless, the purpose of the rule is to create a more collaborative atmosphere in which helping colleagues isn’t viewed as lost time and where associates are allowed to give themselves a break during the down-periods.

NOT EVERY TASK BECOMES A COMPETITION BETWEEN STUDENTS & THERE IS NO PRESSURE TO WORK LATE IN ORDER TO IMPRESS. The one negative note to the scheme was that the firm’s reputation for being Oxbridge-focused was borne out by the attendance and it was rather awkward sitting through a talk on “Diversity and Inclusion” knowing that 21 of the 26 students around the room were also attending either Cambridge or the other

place! I gather the other schemes were not quite so bad, likely because the June scheme clashed with May week and so some, like myself, will have switched onto the July scheme instead. If you do decide to pursue a career at the firm, all vacation schemers are guaranteed the option of interviewing for a training contract during their final week. Unlike some other firms, Slaughter and May stresses that they make decisions regarding training contracts on the basis of this interview process and not on your performance over the preceding weeks you have spent with them. A real benefit of this is that not every task becomes a competition between students and there is no pressure to work late in order to impress (indeed, this is actively discouraged). The hours were 9:30am to 5:30pm and, with the exception of after-work social events, I never stayed at the office beyond that. Whilst I have decided not to undertake a training contract with Slaughter and May in favour of pursuing the Bar, I have no regrets about attending and would thoroughly recommend both the scheme and the firm.

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MICHAELMAS 2017

Careers Feature

Vacation Scheme at Linklaters

Casework Volunteer at the Bar Pro Bono Unit

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CAREERS FEATURE

CASEWORK VOLUNTEER AT THE BAR PRO BONO UNIT AT A GLANCE

CAREERS FEATURE

• • •

VACATION SCHEME AT LINKLATERS

Length: Four weeks Responsibilities: Writing research memos, drafting emails, and taking notes during calls and meetings Recommended for: Anyone interested in commercial law or law in general

Wahdana Bilal | Trinity College

The vacation scheme was split into two halves. I spent the first two weeks sitting in Trusts, a department which, rather unusually for a magic circle firm, dealt primarily with private client work. My last two weeks were spent, in rather more orthodox fashion, in Dispute Resolution. In both departments, I was assigned an Associate ‘Principal’ who acted as my direct supervisor and a Trainee ‘Buddy’ who functioned as a more informal point of contact.

UNLIKE AN ACTUAL TRAINEE, MY DAY WOULD END ON AVERAGE AT 5:30 PM, WITH SOCIAL EVENTS PLANNED FOR MOST EVENINGS. 10

Responsibilities: Providing administrative support, summarising applicant documents, creating allocation summaries and taking calls during the enquiries line opening hours Recommended for: Anyone interested in pro bono or public interest work, or anyone interested in gaining more first hand experience with the law

In August, I spent four weeks as a Casework Volunteer at the Bar Pro Bono Unit in London. The Bar Pro Bono Unit is the Bar’s national charity which helps to match up members of the public with barristers acting on a voluntary basis. These members of the public fall into a gap in the current system: they are unable to obtain legal aid, but are also unable to pay for legal advice or representation.

Position: Vacation Scheme student at Linklaters

This summer, I did a four-week long vacation scheme at the London office of Linklaters LLP, a commercial law firm in the ‘Magic Circle’. At the beginning of the scheme, I was not sure that I even wanted to be a commercial solicitor. However, my four weeks at the firm managed to erase any doubts that I may have had.

Length: Four weeks

Weishi Yang | St John’s College

AT A GLANCE

• • •

Position: Casework Volunteer at the Bar Pro Bono unit

Typical tasks included writing research memos on points of law, drafting emails (and in one instance, a will!) and taking notes during calls and meetings. Much like an actual trainee, my tasks varied immensely depending on what my Principal was doing at the time. Overall, I gained a fairly wellrounded view of both the legal and nonlegal responsibilities of an average trainee. Along with tasks assigned to me by those in my department, I was also expected to work on a general vacation scheme project. This project, along with feedback from my Principal and a final interview, formed part of the Training Contract assessment process. The project consisted of tasks related to the Banking, Corporate and Dispute Resolution departments. This meant that all of the vacation scheme students could gain an insight into the work of the three big departments, even if they did not do a seat in any of them. In addition, we attended daily presentations about the work done by other departments, and about other aspects of working at the firm such as pro-bono and secondment opportunities. Unlike an actual trainee, my day would end on average at 5:30 pm, with social events planned for most evenings. The

socials ranged from speed boats and escape rooms to more relaxed dinners and drinks events. Not only did these provide an opportunity to get to know your fellow vacation schemers (and potential future colleagues) better, but also helped you learn more about the culture of the firm from the people who work there. All in all, I would definitely recommend the vacation scheme to anyone considering a career in commercial law or even law in general. If, like me, you are unsure about whether this is the career path for you, the vacation scheme can provide you with some much needed clarity. On the other hand, if you are certain that you wish to be a commercial solicitor, the vacation scheme not only increases your chances of securing a training contract at the firm but also enables you to discover whether the firm itself is the right fit for you, both in terms of its work and its culture. And you get to go on a speed boat.

My job varied on a day to day basis, but most days were spent summarising applications made by individuals, which included deciding whether or not the applicant had provided enough information for a senior barrister to review the case. Other days were spent archiving files, delivering parcels to chambers, chasing up voicemails, processing results and allocations from barristers, emailing applicants, and sending various letters. Most notably, three times each week, the phone lines opened.

person on the other side of the line. These callers were often vulnerable, desperate, and down to their last possible resort, and so it was important to emphasise that while the Unit could not guarantee help, it would try its utmost to provide it.

THE PALPABLE ROLE THAT WE PLAYED IN A PERSON’S APPLICATION MAKES THE WORK ALL THE MORE REWARDING. The Unit puts a significant amount of responsibility in the hands of their Casework Volunteers. We were the first people to see the individual’s application, and we are the last ones to close the case. The palpable role that we played in a person’s application makes the work

all the more rewarding; study of the law in abstract made me forget the profound effect it has on people’s lives in practice. One example I have of that is this: I once spoke to a man on the phone who wanted to make an application. After two phone calls and a lot of research, another volunteer and I were able to help him. At the end of it, he asked how to spell our names. A few days later, the application arrived in the Unit with a personalised note attached, which thanked us for helping him. While a small gesture, it was affirming to know that we personally had helped someone who needed it. The clear sense that I got from the Unit is that everyone who works there genuinely cares about helping individuals who need legal assistance, and do not have the means to afford it. I really enjoyed my four weeks at the Bar Pro Bono Unit, and I could not have anticipated that I would gain as much from the experience as I did.

The phone lines in the Bar Pro Bono Unit rarely stop ringing. Often, I would finish a call, put down the receiver, only to immediately pick it up again. Multiple volunteers manned the phone lines at any one time, and it was rare to be able to leave those desks once they opened. The types of calls ranged from insistent requests for legal advice (which I could not give) and application forms (which I could) to updates and general requests for further information. There were also a range of callers: understanding, frustrated, upset, and angry. One thing that I learned at the Unit was that the most effective way to diffuse particularly contentious situations was to clearly show your empathy for the

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MICHAELMAS 2017

Careers Feature

Legal intern at Aston Martin

CAREERS FEATURE

LEGAL INTERN AT ASTON MARTIN LAGONDA

TRAIL

BLAZING.

AT A GLANCE

• • • •

That’s why we’re the lawyers for tomorrow’s industries.

Position: Legal Intern at Aston Martin Lagonda Limited (Gaydon, Warwickshire) Length: 11 weeks Responsibilities: Drafting non-disclosure agreements and documents for designers, conducting ‘freedom to operate’ searches, hosting workshops. Recommended for: Anyone interested in intellectual property law or working in house.

Georgie Vale | Downing College As part of Aston Martin’s intimate fivestrong legal department, during my internship I worked predominantly with the Intellectual Property (IP) team. In many ways, the legal team are Aston Martin’s company’s guardian angels; anyone in the company can (and does) go to them for advice - legal, commercial or otherwise. This is especially true of the IP team. My work has loosely fallen under four objectives. Firstly, building the brand and its portfolio of IP rights (IPRs). Secondly, protecting those IPRs. Thirdly, identifying potential hazards, minimising (or eliminating) risks and advising clients on how best to manoeuvre company operations away from them. Finally, facilitating more efficient future working practices. During weekly conference calls with AML’s external attorneys, I followed the progress on applications for new trademarks, patents and design rights. I assisted in hosting fortnightly workshops with our patent and design attorneys, inviting engineers, designers and others involved in the development of products to update us on new models and systems. I was tasked with arranging for AAUs (Acknowledgement, Assignment and Undertakings) to be signed by the designers to ensure copyright title for designs vests in the company. I have also taken a lead on drafting Non-Disclosure Agreements for one of our clients; these documents are crucial for safeguarding AML’s confidential information. I have worked closely with the Head of IP at AML and a lawyer from Gowling WLG on various enforcement matters, conducting

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research on potential infringements of Aston Martin’s IP, collecting evidence, and drafting Cease and Desist letters. I liaised with colleagues from various business departments to enquire about associations or licence agreements between AML and those entities, and to trace AML’s copyright title in images and films.

May 2018 under the new EU General Data Protection Regulations (GDPR) with the aim of producing a strategy for achieving company-wide compliance. I also assisted in drafting defence arguments to an Employment Tribunal case and observed an impressive negotiation of a Contingency Agreement for a potential collaboration.

As well as protecting its own IP, AML is respectful of the rights of others. I have frequently conducted ‘freedom to operate’ searches to ensure proposals for model names or paint colours do not infringe the IPRs of others. This is important for avoiding the risk of an injunction.

I began my internship with virtually no knowledge of IP Law. The opportunity to represent the legal team in a business presentation to new graduate recruits on the company’s approach to IP gave me a real buzz and being able to talk confidently about the subject showed me just how much I have learned.

I FEEL PRIVILEGED TO HAVE LANDED AN INTERNSHIP AT ONE OF THE MOST ICONIC LUXURY AUTOMOTIVE BRANDS IN THE WORLD

I feel privileged to have landed an internship at one of the most iconic luxury automotive brands in the world and, while sadly I didn’t get a company car, I have had an experience even more valuable.

With the aim of creating more efficient future working practices, I have put together a collection of precedent enforcement letters and collated evidence demonstrating use of AML’s trademarks in other jurisdictions, which may be required in the future for renewals and to demonstrate fame of the brand. I partook in meetings with a member of the legal team, an in-house consultant and the Head of IT, discussing the changes to data protection law which will take effect from

We’re a law firm for the game-changers; the smart thinkers; the ground-breakers. As a Top 20 law firm, we act as the legal advisors to the biggest names in cutting-edge industries. In the technological sphere, our sector-leading teams advise clients on everything from smartphone patenting to best-selling app design. We’re Taylor Wessing, and we’re trail-blazing. Find out how to join us. Read more on our graduate training contracts and vacation schemes at taylorwessing.com/graduate


MICHAELMAS 2017

Essays

Criminal Law Tripos 2017

Criminal Law Tripos 2017

CRIMINAL LAW

or encourage the offence (Jogee) and knowledge of the essential elements that make it a crime (Bainbridge: knowledge of the type of offence; Maxwell: knowledge of a list of possible offences that includes the substantive offence). The AR is clearly met as I, being in control of the dispensing of prescriptions, had assisted in the theft of the prescription and medicine by giving the prescription. It was only with the prescription that K could collect the medicine.

(i) Kate, an American tourist not entitled to receive any medical treatment for free, seeks a prescription for some expensive medicines. When asked by Ingrid, the receptionist, ‘Are you a UK resident entitled to free treatment here?’, Kate nods. Ingrid doubts that Kate has told her the truth because of Kate’s very strong American accent which she noticed earlier, but she gives Kate the prescription anyway. Kate later collects the medicines without charge from a nearby pharmacy. (ii) Ingrid has long had a crush on one of the patients, Peter. She knows that Peter is extremely interested in blood test results for another patient. Ingrid whispers to Peter: ‘I got hold of the blood test results and I could let you have a look at them if you come round for dinner at my place this evening.’ In fact, Ingrid has not seen the blood test results, nor does she have any intention of disclosing any patient’s blood test results to Peter. Peter visits Ingrid that evening. As the evening progresses they have sexual intercourse after Ingrid untruthfully told Peter that nothing could happen as she was on the contraceptive pill. In the morning, Ingrid confesses to Peter that she does not have the blood test results. Peter is very angry. He spits in Ingrid’s face, and then bangs the door closed with such force that the door handle breaks off.

Which offences, if any, have been committed?

K had clearly made a false representation as to her nationality, by stating that she was British when she was American; per s. 2(2), the representation is untrue and K knows it. Further, it is likely that this was dishonest. Dishonest is determined by the Ghosh test, which asks if the defendant’s act was dishonest by the standards of honest and reasonable people, and if so, whether the defendant realised that it was dishonest by such standards. It is certainly likely that the jury would find that such an act of obtaining medication for free when she is not legally allowed to is dishonest, and that K was aware of this. Finally, she must have intended to make a gain for herself or cause loss for another (s. 2(1)(b)), and this must be pertaining to property or money (s. 5(2)). It is likely that this is so, as although she did not intend to gain money (she intended to save it), she had intended to gain the medicine and the prescription. Therefore,

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K had likely committed a fraud by false representation when she falsely represented herself as a UK resident. She had also likely committed a s. 3 offence, as she had failed to disclose the information that she was not a UK resident and was an American citizen. It is likely that there is a legal duty given the legal requirements of obtaining free medical treatment, and as mentioned above, she had intended to make a gain and was likely dishonest. Therefore, she is also likely liable under this offence.

K IS LIKELY DISHONEST & SHE LIKELY INTENDED TO PERMANENTLY DEPRIVE THE PHARMACY OF THE MEDICINES & THE CLINIC OF THE PRESCRIPTION.

However, it is doubtful that she meets the MR requirement. Jogee affirmed that foresight of a potential offence that would be committed amounted to only evidence of intention. While I suspected that K would use the prescription to commit theft of the medicine, it is unlikely that this amounted to an intention to assist her in committing the offence. Thus, accessorial liability under this head is unlikely. The Tyrrell exception may be briefly considered, as I may have been the victim of theft of the prescription herself, but Gnango suggests that it only applies to offences that protect a specific class of persons. Neither the offence of theft nor fraud is of such a nature, therefore the Tyrrell exception does not fall to be considered when determining I’s liability, which is unlikely anyway. (ii) I may have committed a s. 4 offence under the Sexual Offences Act (SOA) 2003 against Peter (P), by getting him to have sexual intercourse with her.

Roystan Ang | St John’s College (i) Kate (K) may have committed either fraud by false representation or fraud by falling to disclose information, pursuant to ss. 2 and 3 of the Fraud Act (FA) 2006 respectively. Both will be considered in turn.

PER INCURIAM

K may also have committed theft. The Theft Act (TA) 1968 states that the AR for theft is the appropriation of property belonging to another and the MR is dishonesty and an intention to permanently deprive, per s. 1 of the TA. The AR is likely met; the prescription and medication belong to the clinic and pharmacy respectively, and Hinks affirms that even if the property was transferred with the consent of the transferor in an unimpeachable way, this could still be appropriation for the purposes of theft. Thus, even though Ingrid (I) and the pharmacy consented to the transfer, the AR is still met. Again, K is likely dishonest and she likely intended to permanently deprive the pharmacy of the medicines and the clinic of the prescription. Therefore, she is liable for theft towards I’s clinic and the nearby pharmacy. I may be liable as an accessory to the offences of theft committed by K. The AR is an act that assists or encourages the commission of the principal offence, per Jogee, and the MR is an intention to assist

Per s. 4(1)(a), I had indeed caused P to have sexual intercourse with her by getting him to come over to her house and telling him that she was on the contraceptive pill. Per s. 4(1)(b), the activity is clearly by its nature sexual, per s. 78(a); it does not get more sexual than sexual intercourse. Per s. 4(1)(c), it is unclear if P consents to the sexual intercourse. Initially, it is possible that before I’s confession, he had expressed consent, but the consent may be vitiated. S. 76 does not apply as there has been no deception as to the complete purpose of the act, as Devonald and Bingham indicate. S. 75 does not apply either as P falls under none of the stated circumstances. As such, s. 74 has to be referred to, and it must be examined if I’s deception as to the possession of the blood test results and I’s contraceptives vitiated P’s consent. It is arguably likely that the deception as to the contraceptives vitiated consent, given that per Assange v Swedish Prosecution Authority, deception as to D’s wearing of a condom was held to

vitiate consent under s. 74. Thus, this may be an analogous situation and P’s consent may be vitiated. However, it may be considered that P may not have minded that I was not in fact taking the pill, as her confession, which sparked his anger, pertained only to the lack of blood test results. The deception as to this may not vitiate consent, as suggested by the case in which consent was held not to be vitiated on the basis that the defendant did not pay even though agreement was predicated on this. The situation here (obtaining something after sex) may be analogous, which suggests that consent is preserved. However, it remains unlikely that P would have consented even though he knew that I would conceive since he has no particular feelings for her, meaning that consent is likely to be vitiated. Finally, per s. 4(1)(d), I arguably lacked a reasonable belief in consent as she had made two conscious deceptions and did not take any steps to get rid of these misconceptions, per s. 4(2). Therefore, I is likely to be guilty for committing this offence. P may also be liable for battery. As Thomas states, the AR is physical touching of another person, and his act of spitting may well meet this requirement, given that in DPP v K, indirect interference with another person’s body was held to be sufficient for the purposes of battery, indicating that directly spitting in another person’s face also will be. Further, the case in which the defendant was held liable for spitting on another is authority that the AR is met.

The MR, per Venna, is intention or recklessness as to the physical touching. P had clearly intended to spit in her face. Therefore, he is very likely to be guilty of battery. Finally, P may also be guilty of criminal damage, pursuant to s. 1 of the Criminal Damage Act 1971. Per s. 1(1) the defendant has to destroy or damage property belonging to another being reckless as to whether any such property would be destroyed or damaged. P is likely to be guilty of this, given that he had indeed damaged I’s door by causing the door handle to fall off. Further, G states that recklessness is present when the defendant foresees a risk of damage but goes on to do the at anyway, and the risk must be objectively unreasonable. Here, slamming a door closed with large force is certainly causing an unreasonable risk of damage, and while P may claim that in his anger (“very angry”) he did not foresee such a risk of damage, Parker suggests that when the act committed is one of obvious danger, the defendant cannot be willfully blind to the risk of danger. This situation is analogous to that in Parker as the defendant there was also very angry; as such, it is likely that P, in his furious anger, will still be liable under s. 1(1) of the Criminal Damage Act 1971 as he had been willfully blind to such an obvious danger. He is likely not liable for a s. 2 aggravated offence as there is no sign that he intended or foresaw any endangerment of I’s life by an act of slamming a door, which does not tend to cause such harm to life.

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MICHAELMAS 2017

Essays

Civil Law I

Civil Law I

B–C

CIVIL LAW I Aulus owns a boutique selling exotic animals in a fashionable area of Rome.

He sells Balbus a llama, an animal from a distant country to the west. Balbus pays the price. As Balbus has more shopping to do, he asks Aulus if he will look after the llama for an hour. Aulus agrees. Before Balbus has returned to collect the llama, it spits (as llamas commonly do) at a passing slave

belonging to Cassius. The slave is temporarily blinded by the spittle. He

wanders into the street, where he is hit by a chariot driven by Drusus. The

chariot is damaged and the slave’s leg is broken. The llama, weakened by its

long sea voyage to Rome, is frightened by the slave’s screaming, has a heart attack and dies. Discuss. Jared Kang | Wolfson College I will address the liabilities and issues raised in accordance to the various parties to which they relate. Firstly, Anlus and Balbus, followed by Balbus and Cassius, Cassius and Drusus, and finally Cassius and Balbus.

A–B The first issue is whether there is a valid sale of the llama from A to B. The contract of emptio venditio requires a price, merx and consensu. Here, clearly, the elements are satisfied and this is uncontentious – the merx is the llama, the parties clearly agree

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and although it is not stated, as it has been paid, the price is definitely certain. The issue is whether B receives dominium of the llama through traditio – in this case likely constitutum possessorium. Traditio can be validly made through constitutum possessorium even if no physical delivery of the property is executed. However, Celsus (D.41.2.18pr) notes that there must be an agreement between the parties to distinguish it from mere non-delivery. Here, an agreement is clearly present as B asks A to look after the llama for him while he completes his shopping. However,

whether dominium validly passes depends on whether the llama is a res mancipi – it is unclear if it is a beast of burden; but given that it is not from Rome, this is unlikely. If it were to be res mancipi, dominium would not validly pass during the Classical period but would during the Justinianic period as he abolished the distinction. A minor note should be made of the fact that the price was paid; Pomponius (D.18.1.19) and J.2.1.41 provides price must be paid for property to pass – this is not an issue here.

If property of the llama passes to B, he will be liable in the next part of this discussion; if not it would be A. B could be liable to C under the actio de pauperie for his llama spitting into C’s slave’s eyes. However, this actio requires that the animal was acting contra naturam; and since it is common for llamas to spit this is unlikely. Instead, B could be liable to C under the edictum de feris as this edict covers all damages as long as they are caused by wild animals kept in a place where it would likely cause damage (Ulpian). However, Ulpian says wild animals are dogs, wild boars, wolves, panthers, lions and Paul says they are any dangerous animal. It is unlikely that a llama would be considered “dangerous”. Therefore, another action would be under Chapter 3 of the lex Aquilia. This requires that B caused damage corpore suo and did so wrongfully (iniuria). The requirement of corpore suo is obviously not met here and it is unclear that B acted “wrongfully”; which typically requires either dolus or culpa. Even though Ulpian says at D.9.2.44pr that the “slightest of negligence” is sufficient for culpa, this probably would not be satisfied as it is hard to attribute fault for the mere keeping of an animal – and since the above actions on animal liability are unlikely to apply, it is not clear that this would succeed either.

The next question is then “is C liable for the damage to D’s cart?” The answer could be “yes” if the previous analysis were to be reversed. This ultimately depends on whether D was riding his chariot in a place where he could expect people to go onto the street. Ulpian’s famous example of the barber is relevant here (D.9.2.11pr). If D himself were at fault for driving his cart in a place where people on the street is common, it is possible that C would not be liable for the damage to his cart the slave caused. If not, C would be liable. If C were to be liable, he would be liable for D’s damnum emergens (consequential damages) and lucrum cessans (lost of profits from being unable to use the cart) for the next 30 days as suggested by Daube. Alternatively, he could noxally surrender his slave for the delict he committed.

C–B C might also be liable for the death of B’s llama under Chapter 1 of the LA. This requires that C caused the death of B’s llama (occidere), wrongfully did so, and

PER INCURIAM

that the llama was percudes. The death is certainly not occidere as it was not caused corpore corpori, which Ulpian (D.9.2.9pr) suggests requires touching. This could then be causam mortis praebere which does not require contact but would grant a decretal action. The screaming could satisfy this. Secondly, it is possible for the llama to be considered percudes as it is a 4-footed animal and it certainly grazes. But Gaius (D.9.2.2.2) seems to suggest that percudes must be “like slaves”; animals which work. This is unclear. However, regardless of the preceding, it is very unlikely that wrongfulness can be established – it would be ridiculous to say a slave screaming in pain after being hit by a chariot is culpa. And even though the fact that the llama was weakened is likely irrelevant as Ulpian notes that different things are lethal to different people (D.9.2.7.5), wrongfulness likely cannot be established and an actio under the LA, and a decretal one will not lie either.

THE DAMAGE CAUSED WAS CERTAINLY “BODY-TO-BODY” AS D RAN INTO C’S SLAVE WITH HIS CHARIOT. C–D&D–C C might be able to bring an actio under Chapter 3 of the LA against D for running into and breaking his slave’s leg. The elements are mentioned above. Here, the damage caused was certainly “bodyto-body” as D ran into C’s slave with his chariot. Gaius (G.3.217) suggests any physical damage is sufficient so this is likely sufficient as well. Wrongfulness is more challenging to establish. As mentioned culpa is sufficient; Gaius suggests at D.9.2.8.1 that lack of skill in driving may constitute culpa; and as mentioned above; slightest of negligence is sufficient. However, Ulpian’s example at D.9.2.9.4 about a slave that wanders into a field where javelins are thrown is relevant. C’s slave, although he did so because he was blinded, wandered onto the street where chariots are driven. This could constitute fault on the slave’s own part and absolve D of liability, but this is not definite.

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MICHAELMAS 2017

Essays

Land Law

LAND LAW Basing a constructive trust of land upon imputed intention reduces it

to little more than a discretionary remedial device. As such, it becomes indistinguishable from proprietary estoppel.

Critically discuss these propositions, with illustrative case law examples. Etsuko Lim | St John’s College INTRODUCTION Imputed intention must be distinguished from inferred intention in constructive trusts; the former is usually where it is impossible to divine a common intention between the parties as to how shares should be quantified (Stack). I argue that (1) imputed intention does afford remedial discretion, much like proprietary estoppel (PE), but (2) the scope for remedial discretion is much wider in PE. (3) There are other elements that separate the two, and (4) where the two appear “indistinguishable”, the remedial discretion afforded by imputed intention has little role to play.

REMEDIAL DISCRETION: IMPUTATION It was raised in Jones v Kernott and Stack v Dowden that intention could be imputed where it was impossible to divine a common intention as to quantification. Lady Hale and Lord Neuberger disagreed over the necessity of imputing intention – indeed, imputation is arguably either unnecessary, because the same result could be achieved by inference (Stack), or is too intrusive in ascribing an intention that the parties never had. In that respect, the constructive trust appears to be a mere “discretionary remedial device”. This mirrors the huge role of remedial discretion in PE claims, where the maxim of the “minimum equity to do justice to the plaintiff” (Crabbe v Arun) affords little remedial guidance. If so, this huge discretionary space is problematic; remedial discretion undermines the rule of law (Gardner) by making judges “repositories of understanding” that are not shared with the public. Moreover, given that beneficial interests (Boland) and mere equities (s 116 of the Land Registration Act 2002) are proprietary rights, they may bind future purchasers of land, who are afforded little certainty by the judges’ remedial discretion.

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REMEDIAL DISCRETION IS WIDER IN PE However, remedial discretion in PE cases may range from an interest in the property (Suggitt v Suggitt), to compensation (Jennings v Rice, Campbell), mere personal rights such as licences, or even no proprietary interest at all. In contrast, imputation in constructive trusts may only occur at the quantification stage (Capehorn v Harris, Barnes v Phillips); given that the question is the size of the claimant’s share and not whether he gets a share at all, the discretionary remedial space is smaller.

IT IS QUESTIONABLE IF ACQUISITION & QUANTIFICATION ARE CLEARLY DIVORCED IN MOST CONSTRUCTIVE TRUST CASES, SO THE FACTORS RELEVANT TO ACQUISITION WILL CONSTRAIN THE LATER REMEDIAL DISCRETION. Moreover, given the judges would have examined the parties’ conduct or oral assurances at the acquisition stage prior to quantification, it is likely that the parties’ whole course of dealing (Stack, Oxley v Hiscock) will disclose some guidance as to how shares should be quantified; it is questionable if acquisition and quantification are clearly divorced in most constructive trust cases, so the factors relevant to acquisition will constrain the later remedial discretion. In contrast, the test of proportionality between the expectation and detriment (Jennings v Rice) in PE cases is haphazardly applied. Mees notes that Arden LJ ended up comparing the expectation-based measure with the claimant’s expectation rather than detriment in Suggitt v Suggitt. Moreover,

the lack of remedial guidance and the huge range of possible remedies afford space for appellate judges to approve trial judges’ remedies where they are not outrageously wrong. In Suggitt, the claimant was awarded the house despite suffering “bare” detriment and lacking credibility as a witness; in Bradbury v Taylor, the claimant was awarded the house despite uncertainty if the defendant had promised him the property in a written letter.

INDISTINGUISHABLE – BUT NOT DUE TO IMPUTATION OF INTENTION However, it is true that PE and constructive trusts are sometimes indistinguishable, especially in respect of PE claims founded on constructive trust claims as per s 2(5) of the Law of Property (Miscellaneous Provisions) Act 1989. Matchmove v Dowding was a constructive trust case that could have been based on PE, given there was an oral agreement intended to be immediately binding, agreement on all terms, and detrimental reliance. Matchmove was distinct from Cobbe where the oral agreement was not intended to be immediately binding, and where a written contract was due to be drawn. Commercial constructive trust cases like Matchmove render the distinction between constructive trusts and PE weak, especially since s 2(5) of the LP(MP)A 1989 allows a PE claim to be founded on a constructive trust basis where contractual formalities have not been observed. Yet the fact that the two overlap so heavily appears to have little to do with imputing intentions in constructive trusts, but rather the inference of a common intention.


MICHAELMAS 2017

Essays

Law of Contract

Law of Contract

PER INCURIAM

LAW OF CONTRACT The doctrine of penalties can be regarded as meeting the criticism

levelled against unqualified freedom of contract, namely the possible

inequality of bargaining power.’ Consider critically the current state of the English law on penalties in light of this statement. Yenjean Wee | St John’s College The penalty doctrine is oft-criticised – recently labelled by Morgan as “unlovable but untouchable” – and judges and academics alike have found difficulty in articulating satisfactory justifications for the doctrine, with Lord Diplock in Robophone Facilities v. Blank calling it “anomalous” and, most recently, the Supreme Court in Cavendish v. Makdessi calling it an “ancient, haphazardly constructed edifice which has not weathered well”. This difficulty can be seen as stemming from a fundamental tension in the operation of the penalty doctrine between protecting parties against possible inequality of bargaining power and the significant intrusion that it represents into the cardinal principle of freedom of contract. This essay will first argue that the penalty doctrine does go some way to meet the problem of inequality in bargaining power and serves a vital function in this regard, but that it may not offer adequate protection due to the various ways of evading the doctrine. it will then question whether the penalty doctrine strikes an appropriate balance between these two competing concerns in its current form postMakdessi, and finally evaluate whether the penalty doctrine is the most suitable way of achieving this balance.

THE PENALTY DOCTRINE – PROTECTING AGAINST INEQUALITY OF BARGAINING POWER The statement suggests that the penalty doctrine ‘meets’ concerns about inequality in bargaining power. This is true to a large extend and is indeed a major reason why the Supreme Court retained the penalty doctrine in Makdessi despite criticism of it. A traditional justification for the penalty

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doctrine, supported by Andrews, is that it prevents the innocent party from stipulating for flagrantly punitive sums at odds with the common law’s compensatory focus, and can thus be used to compel the guilty party to ‘soldier on’ to avoid having to pay hefty penalties in the event of breach. This concern is all the more pressing against the backdrop of an inequality of bargaining power, where ‘freedom of contract’ may be illusory as weaker parties may be compelled to accept heavy-handed penalty clauses imposed on them by powerful opponents. While the Consumer Rights Act 2015 ensures that consumers are protected against paying a “disproportionately high sum in compensation” (Schedule 2 paragraphs 5-6), this protection does not avail small businesses, which are not captured by the CRA’s definition consumers as “natural persons” – the Law Com in 2005 suggested extending similar protection to businesses with under 9 employees, but this was not adopted by Parliament. The penalty doctrine thus plays an important role in mitigating the inequality of bargaining power in the commercial context – contrary to what its opponents like Gullifer argue, the CRA has not been a panacea and some form of regulation is still desirable between businesses (as Andrews argues). However, it is questionable whether the penalty doctrine in its present form adequately meets this criticism. The penalty doctrine in England operates only in relation to secondary obligations – those arising on breach of contract – and not to primary obligations, in contrast to the Australian position in Andrews v. ANZ (which the Supreme Court in Makdessi roundly rejected). This means that – as

Lord Neuberger and Lord Sumption acknowledged in Makdessi – the reach of the penalty doctrine can be avoided by “clever drafting” – for example, by simply stating that a different rate of hire is applicable when one party is late. Moreover, the distinction between primary and secondary obligations may itself be difficult to draw, as shown in Makdessi where Lord Hodge and the majority disagreed on the classification of one of the clauses at issue. To the extent that the distinction is arbitrary and “formal”, this lends support to Peel’s argument that the penalty doctrine should simply be abolished altogether. Moreover, as Denning LJ observed in Bridge v. Campbell Discount, it can be seen as an “absurd paradox” that the guilty party receives protection via the penalty doctrine when he breaches the contract, but not if he does not breach the contract. Taken together, these inadequacies of the penalty doctrine mean that there are significant gaps in the protection of weaker parties, especially because the parties can frame a penalty as a primary obligation (which the weaker party would also be unable to resist), thus avoiding the regulatory reach of the law.

ANY FURTHER EXTENSION OF THE PENALTY DOCTRINE WOULD BE AN EVEN GREATER INFRINGEMENT OF FREEDOM OF CONTRACT

WHETHER THE PENALTY DOCTRINE STRIKES AN APPROPRIATE BALANCE BETWEEN FREEDOM OF CONTRACT AND INEQUALITY OF BARGAINING POWER These shortcomings could, however, be defended (and were so defended by the Supreme Court in Makdessi) on the ground that any further extension of the penalty doctrine would be an even greater infringement of freedom of contract. It is true that ‘unqualified’ freedom of contract would be problematic – as Andrews argues, the principle is not absolute but is subject to legitimate restrictions against draconian or excessive measures. The Supreme Court’s narrowing of the test for a penalty in Makdessi goes a long way to respecting freedom of contract and upholding commercial certainty. Whereas the previous test set out by Lord Dunedin in Dunlop Pneumatic Tyre, where a clause was invalidated as a penalty if it was not a genuine pre-estimate of loss but rather designed to deter the party in breach, the new test sets a much higher threshold: a clause is only a penalty if the innocent party has no “legitimate interest” in the enforcement of the primary obligation and the sum stipulated is “out of all proportion” to that legitimate interest. This considerably alleviates previous concerns about fetters on freedom of contract, since the Supreme Court recognised that seeking to deter another party from breaching is legitimate and comparable to a contractual inducement, and also placed weight on commercial justifications – continuing the trend in previous cases like Murray v. Leisureplay – in holding that Cavendish did have a legitimate interest in the

enforcement of its restrictive covenants. Freedom of contract may thus be said to be no longer “unqualified”, but respected to a far greater extent than it was previously, since it is now much less likely that a clause agreed on by the parties in their contract will be struck down by the court. Be that as it may, however, the penalty doctrine still represents a substantive interference with the parties’ bargain, unlike the other accepted non-statutory jurisdictions such as duress, and is still liable to generate commercial uncertainty. As Morgan argues, even if the doctrine is more often invoked than successfully pleaded, this still generates litigation and renders the enforceability of commercial agreements subject to doubt, thus sitting in tension with the need for “clear, crisp rules of commercial law” to respect the parties’ freedom of contract – a hallmark and key attraction of English law vis-àvis other jurisdictions like New York. This uncertainty is not necessarily alleviated by the new test; as Summers argues, the “legitimate interest” test is itself vague, and its application in ParkingEye suggests that the legitimate interests of third parties and society at large may also be taken into account. The new test in Makdessi may thus have alleviated some problems but generated others.

of contract and inequality of bargaining power. Given that its most important role (arguably) is to ensure that weaker parties are protected, but that the current doctrine is still both overly broad and overly narrow, it could be argued that the function currently served by the penalty doctrine could be better performed by unconscionability or a similar doctrine – this would be in line with the Supreme Court’s emphasis on ‘unconscionability’ in Makdessi (which indeed formed part of Lord Hodge’s alternative formulation of the test), and would also target the problem of inequality in bargaining power more precisely, while representing a lesser (and more intuitively justifiable) incursion on freedom of contract. Ultimately, therefore, the doctrine of penalties can be regarded as addressing possible inequality of bargaining power, but it is still limited in this regard, and the constraints it faces within the framework of the freedom and sanctity of contract may mean it is not the most appropriate judicial tool for striking this balance.

CONCLUSION: IS THE PENALTY DOCTRINE THE BEST WAY TO BALANCE THESE CONSIDERATIONS? Finally, it will be briefly considered whether, in light of its flaws in terms of both principle and practicality, the penalty doctrine is the most appropriate tool for resolving this fundamental tension between freedom

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MICHAELMAS 2017

Essays

EU Law

EU Law

EU LAW ‘The field of fundamental rights ... arose from a constitutionally limp EU.

The recognition of the protection of fundamental human rights as general principle of EU law was followed by institutional acknowledgement and

progressive legislative recognition, to result eventually in full codification. Given its inextricable link with the process of deeper integration, it is not surprising that it is a field which is not only complex but also, at times, deeply contested.’ (SPAVENTA, 2014) Discuss. Taro Tan | Wolfson College It will be argued that the codification of the Charter of Fundamental Rights in 2000 and the conferral of legal status in the Lisbon Treaty is indeed complex and contested from a constitutional perspective, and will note developments relating to Art 53 and Melloni to elucidate this development. This essay will also note the Accession issue and Art 52 developments as confirming this thesis. Finally, issues of scope also exemplify complexity, with the CJEU demonstrating innovation in some parts, and reticent in others. I will explore the contexts of freedoms, citizenship, prisoner voting, and financial crisis situations to highlight this argument.

DEVELOPMENT Fundamental human rights (FHR) indeed arose from a ‘constitutionally limp EU’, where it was first rejected in Stork, before

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recognition and a general principle in Stauder. Gradually, there was greater acknowledgement by the CJEU in Nold which held that ECHR jurisprudence could aid its development, and led to its codification in Art 6 of the Treaty of Lisbon.

CONSTITUTIONAL PERSPECTIVE However, from a constitutional perspective, FHR and the Charter has been a source of controversy. Even pre-Charter, the CJEU in International Handelgesellshaft held that EU FHR has primacy and supremacy over national law, even if national law provided higher standard of protection. This went against the grain of some national courts’ rulings, especially Germany in Solange I, where it was held that the German Court will review EU FHR jurisprudence and law against their own. Post-Charter, Melloni confirms that EU law, even in the FHR

context, retains primacy (Costa v ENEL, Simmenthal). This is necessarily complex because FHR is supposed to be a tool to protect human dignity, and not an instrument to reassert supremacy. That said, CJEU further entrenched primacy when it rejected accession to the ECHR in Opinion 2/13, a decision which was heavily criticized by man, including Nanpolous, Lock, Peers, and Barnard. Of the many reasons, the desire to maintain supremacy was the main one, and this led CJEU to reject arguments on grounds of mutual trust and recognition (Reineyer CEYLS) arguing that it instead undermines it for Art 52(3) says that rights in the Charter corresponds to the ECHR. Other arguments include the Protocol 16, interpretation, but Peers notes that it is refuted by the primacy of the preliminary reference procedure, illegality, and that ECHR opinions are non binding.

That said, to paint the relationship between CJEU and national courts as being in conflict risks myopia, as recent decisions, although outside the ambit of FHR, but nonetheless relevant to the relationship, qualify this. In Honeywell, where the German Court said that review of EU law for ultra vires will be exceptional, and ignores eg Gauweilier, where the CJEU played a mediatory role between German’s demands for higher scrutiny of the OMT, and the need for a purposive interpretation to prevent denuding the OMT of any powers. Earlier, Solange II held that if the EU law has equivalent FHR protection, the German court will not review it on grounds of FHR. As such, from the survey above, the relationship of integration, while starting off as antagonistic, has progressed to a stage of arguably co-operation, and reflects wider constitutional pluralism (Barber; Walker), where EU and national courts agree that the issue depends on the constitutional laws one adopts, and it would be better to focus on institutional dialogue.

THE COURT HELD THAT, ALTHOUGH THE IMPUGNED NATIONAL MEASURE, OF ORDERING INFORMATION & CONSULTATION IN AUSTERITY-TRIGGERED DISMISSALS COULD NOT BE SALVAGED. The FHR field in terms of scope of review is also complex, and more so in terms of review of member state (MS) action. In terms of review of EU actions it is less controversial, and indeed in Volker and Test-Achats, where EU regulation and directives were annulled on grounds of primacy and self-discrimination were heralded as a step forward (Nanopolous), and post Charter, review continues (Digital Rights v Ireland) That said, the issue in Kadi I/II, where the CJEU held that not only did UNSC Resolution had to be reviewed for facts, the review had to be in full. This could be seen as contestable as it overrides MS’ international law obligations, again on the grounds of primacy of EU law (Fik-Fak; De Burca). Perhaps the least “surprising” of all is in the review of MS action, under Art 51(1). Fransson confirms pre-Charter cases of review, implementing (Wachauf) and

derogation (ERT), apply under the Art 51(1), which is convincing as seen from the Explanations, and it would be odd that general principles conferred greater protection. That said, despite attempts at clarity in Siragusa (requiring specific link and objectivity), and Hernandez (specific connection, and assessment of other objectives), case law in this area is complex. It is less so in areas of exclusive competence (Pelckmans Trust, Hernandez) where EU law is autonomous, less so however, in areas of shared competence, where even the Siragusa; Hernandez criteria have been ignored.

FREE MOVEMENT In this context, Shibune, noting Dano, commented that such rights go to the root of greater and deeper integration” shed some light on the complexity of case law. In Schmidberger, freedom of association and movement was allowed by road blocking for protest; similar in Omega where Germany was allowed to apply free movement law for ‘human dignity’. The point raised here is that these are isolated instances, and do not negatively impact free movement and market integration. Crucially, in contest, in Viking and Laval we saw Art 49 and Art 57 trumping the freedoms of association and movement, manifested in industrial strike rights because the freedoms of establishment and services had wider implications on EU integration. This was followed in AlemoHerron in relation to Art 16 Freedom to conduct a business. That said, this argument ought to be qualified post-AGET 2016; the court held that, although the impugned national measure, of ordering information and consultation in austeritytriggered dismissals could not be salvaged, it still had to be reviewed to determine of Art 49 and Art 16 were truly robust to trump the national measure This has wider implications in post-crisis austerity review.

CITIZENSHIP

PER INCURIAM

Marin confirm Zambrano and Rottmann, and will apply equally intense review. As such, while case law here may remain contested for its basis, it is less complex post-CS and Rendon Marin.

VOTING Delvigne held that Art 39(2) could be a basis for scrutiny of universal suffrage in terms of prisoner voting. While it may be seen as CJEU extending its tentacles of review, Kornezov (2016) argues that the CJEU has rightly exercised a tough review, discharging its role as a constitutional court.

CRISIS In this context too, similarly, the CJEU should in my opinion engage in review as in Pringle, in reviewing the ESM, as this would clarify the complexity of whether austerity review ought to be reviewed on FHR grounds.

ART 52 In Art 52, Mangold and Kucukdevei confirm again that the CJEU will assert primacy in general principles – here Art 21 non discrimination. However, in Dominiguez/ AMS, uncertainty was imported here, as the Court held that Art 27 was not sufficiently certain the Charter context, rather than from a lack of horizontal effect applying Van Gend En Loos. This complicates issues, as Frantizou and Lazzerini have highlighted that the court, while it did not confine Mangold to its facts, did not clarify if the Charter was a fundamental change in this area, thus making the applicability of general principles in the context of direct effect unclear. To conclude therefore, this field is indeed complex, although recent case law has clarified the areas of review in terms of its scope. As to whether it is contested, it is less so in constitutional terms, but more so in subject matter terms.

Notably, in Zambrano, as noted by Hinarejos, the CJUE bent over its back to find citizenship right in Art 20 TEU even though this was a non-cross border situation, paralleling pre-Charter cases such as in Carpenter, noted Spaventa as having FHR overtones. This was seen in some quarters as an instance of CJEU overreaching to assert union citizenship on grounds of integration. However, it is submitted that cases in this area are less complex today. Maccarthy and Dereci confined Zambrano and Rottmann to Art 20 TEU, and recent cases in CS and Rendon

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MICHAELMAS 2017

Essays

Equity Law

Equity Law

Akindele thought that a claim for knowing receipt would preclude a claim for unjust enrichment since knowing receipt would ‘subsume’ the unjust enrichment claim. Another example is that of subrogation having to necessarily have a proprietary base (as Millet LJ in Boscawen v Bajwa thought so) or is it founded in unjust enrichment’s 3/4 stage test (as noted by the Supreme Court in Menelaou. While it is acknowledged that Menelaou categorically stated that subrogation lay in unjust enrichment, that decision is not as conclusive, as Watterson (2016) notes, as thought so. Lastly, there is a question of whether a change of position defence is available to a tracing claim. While Fox (2000) and Lord Millett Foskett has rejected this possibility, it is still open to the Supreme Court to clarify the issue. Hence, in these instances, there is doubt as to the relationship between unjust enrichment and equity. If the courts were to categorically reject any notion of fusion, these doctrines would be kept separate and as Ashburner 2nd Edition notes) would flow side by side but not intermingle. However, if these are to be fused, it would open up a plethora of opportunity for claimants and defendants alike to plead or defend their cases. Hence, the ‘fusion debate’ would have practical significance in informing whether doctrine, concepts and defences from equity and the common law can cross pollinate or be kept distinct. While it is noted that judges are not academics debating fusion, would be resolving issues, it is extremely likely that they would be informed by the academic ‘fusion debate’.

EQUITY LAW Is the ‘fusion debate’ of any practical significance and why? Andrew Ng | Wolfson College While the ‘fusion debate’ has long been criticised as nothing more than an academic debate, it is submitted that the ‘fusion debate’ is of practical significance.

CONSTITUTIONAL ROLE OF THE COURT The first and most obvious practical effect of the fusion debate is related to the court’s constitutional role as always being subservient to legislature. Hence, if the Judicature Acts of 1873-1875 were intended to fuse the substantive body of common law and equity (albeit the position is usually that it had not – eg Lord Jessel MR in Salt v Cooper), the courts would have no choice but to fuse the substantive body of common law and equity. While of course it is not generally accepted that the Judicature Acts did so – the point is if, it can be shown that the Judicature Acts

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required the courts to fuse substantive common law and equity, this aspect of the ‘fusion debate’ would have tremendous practical significance.

PLEADING IN THE COURTS The fusion debate is also relevant to how a barrister pleads his case in court, especially in areas where there are different rules depending on whether one pleads in equity or common law. For example, if a barrister pleads his case on tracing at common law, his client would not be able to trace into a mixed fund (eg Taylor v Plumer) as compared to pleading tracing in equity (eg Re Hallet, etc). This means that if common law and equity are not fused and a barrister foolishly chooses to plead tracing in common law into a mixed fund, the claimant’s case would necessarily fail. However, if common

law and equity were indeed fused, the barrister in the same scenario would succeed as a fused understanding of tracing would most likely yield tracing into mixed funds. While most barristers aren’t so foolish, this illustrates how the ‘fusion debate’ of whether the substantive body of law are indeed fused or not can have practical significance in pleadings.

SUBSTANTIVE LAW

of any gains). If there was fusion, there would not be an need for the courts to adhere to the maxim of equity can, with normative justification on their side, issue exemplary damages for say a breach of fiduciary duty (a position which is rejected in Australia – eg Harris v Digital Pulse). Also, the ‘fusion debate’ is also of practical relevance to the extent that it can justify the uncertainty that it would create in the

PER INCURIAM

interim to achieve its goal of fusion. As Leeming (2013) has noted, most claimants only encounter the law a few times in their lives and usually during moments of crisis eg divorce, personal injury. Would it be justified in denying such claimants certainty of outcome simply to achieve such an outcome?

THE ‘FUSION DEBATE’ OPENS A PANDORA’S BOX OF NORMATIVE ISSUES & NOTIONS OF JUSTICE THAT IS CLEARLY OF PRACTICAL SIGNIFICANCE. NORMATIVE ISSUES

The fusion debate would have enormous practical significance in the field of substantive law.

Lastly, the ‘fusion debate’ opens a Pandora’s Box of normative issues and notions of justice that is clearly of practical significance.

The first area is the relationship between unjust enrichment and equity. There has been great uncertainty as to the relationship as to the two field and whether the use of one would preclude the other. For example, Nourse LJ obier in BCCI v

The ‘fusion debate’ would guide the courts in whether they should adhere to the maxim of equity that equity is not penal (James LJ in Vyse v Foster) and thus cannot justify punishing the defendant (as compared to just stripping the defendant

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MICHAELMAS 2017

Essays

Competition Law

Competition Law

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COMPETITION LAW The European Commission’s publication of ‘guidance’ on enforcement priorities for Article 102 TFEU aims to provide greater clarity and

predictability to potentially dominant undertakings. To what extent have these aims been achieved? Alex Peters | Selwyn College The Guidance on Art 102 TFEU (‘A102’) at best represents a mixed bag when it comes to the achievement of its aims of providing greater clarity and predictability to potentially dominant undertakings. On its face, the Guidance entrenches a decisive shift away from the old formalistic formbased approach towards a ‘more economic’ approach. In doing so, the Guidance may be seen to imbue an air of clarity and predictability into A102 enforcement. However, the truth is that on a more nuanced view, the Guidance leaves much to be desired (Akman) and there subsists a gulf between the theory of an effects-based approach to A102 and enforcement practice (O’Donoghue + Padilla). Viewed thus, the Guidance may not offer a great deal of clarity and predictability to potentially dominant undertakings.

A BEACON OF HOPE AT FIRST SIGHT The Guidance is non-binding but is intended to be followed by the Commission. In endorsing an as-efficient-competitor (AEC) test in price-based abuse cases, the Guidance appears to move away from particularly egregious decisions like Michellin II – where it was enough that potential to produce anti-competitive effects was possible for a rebate to be rendered abusive. Moreover, BA-type decisions, rejecting the admissibility of economic evidence that suggested the prevalence of anti-competitive practices on the market were less than understood, would appear to be something of the past. Indeed, in the margin-squeeze cases of TeliaSonera and Post Danmark, the CJEU adopted the AEC test. If effects-based

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reasoning such as this were to be deployed in A102 cases on price-based exclusionary conduct, then the Guidance could at least offer greater clarity and predictability to undertakings that are dominant in the field which the Guidance covers.

ALL IS NOT WHAT IT SEEMS However, as Akman outlines in her fantastic book on A102, the Commission’s Guidance is equivocal. For example, at para. 19, it is unclear if the Commission is driving at consumer welfare being the anticipated mischief of anti-competitive abusive conduct, or whether it is that consumer welfare effects must be proven before conduct will be deemed abusive. Moreover, para. 22 says there are practices for which no effects-based analysis is necessary, e.g. a ban on testing rival products. This actually flies in the face of an effects-based approach and fails to provide any greater clarity or predictability to undertakings, who cannot on the basis of this tell whether they will face the full force of A102. As O’Donoghue + Padilla outline, to say there could be no bona fides reason for some of the para. 22 conduct is wrong – e.g., an undertaking may reasonably wish to ban testing of rival products to prevent knowhow from leaking. Moreover, as Gerdain has outlined, the Guidance uses such loose language as “generally” 18 times, and “in principle” 5 times, that any clarity and predictability the Guidance might bring to undertakings must be quite limited. The Guidance does not purport to deal with all types of A102 abuse either, reinforcing the weaknesses identified.

It is therefore perhaps not surprising that there remains a gulf between the theory of an effects-based approach, the supposed lodestar of A102 enforcement in the light of the Guidance, geared towards providing greater clarity and predictability to potentially dominant undertakings, and enforcement practice.

THE CJEU HAS A UNIQUE OPPORTUNITY TO PROVIDE GREATER CLARITY & PREDICTABILITY TO POTENTIALLY DOMINANT UNDERTAKINGS IN THE UPCOMING INTEL APPEAL For example, in Tomra, the Third Chamber rejected the relevance of the AEC test in the context of rebates. This is in spite of the fact that this evidence would have shown the market coverage of the rebates to be less extensive than the Commission had alleged. The rejection of any effects-based evidence as inadmissible by the Court harks back to the dark days of BA, flies in the face of an effects-based approach as purportedly endorsed by the Guidance, and provides absolutely no clarity or predictability to potentially dominant undertakings. The Court in Intel also rejected the AEC test’s relevance and the relevance of other economic evidence. The Court appeared to suggest that the Guidance did not cover rebates since the concern of the Court in such cases was not price-based

anti-competitive conduct but was instead horizontal foreclosure. This reasoning is regrettable and it is respectfully submitted that price-based exclusionary conduct in the context of A102’s Guidance should extend to rebates too such that the AEC test applies. Much has been made of the fact that the Guidance was not in force at the time of the violations in Intel and Tomra (see e.g. Petit) but the simple truth is that the General Court in Intel appeared to repudiate AEC’s relevance to rebates cases entirely. In this light, therefore, the CJEU has a unique opportunity to provide greater clarity and predictability to potentially dominant undertakings in the upcoming Intel appeal. Some good reasoning is to be found in AG Wahl’s Opinion but that could be built upon even further in line with Petit’s suggestions to provide optimum levels of clarity to undertakings.

AN EFFECTS-BASED APPROACH IS DESIRABLE Underlying all of the above is admittedly an assumption that an economic effects-based approach can provide clarity and predictability to potentially dominant undertakings.

Ezrachi outlines the fact that the shift from form to effects leaves uncertain the relevant standard of abuse. Consequently, Roth has argued that a form-based approach is preferable since it has the advantage of legal certainty. However, as Akman outlines, this idea is flawed, because the CJEU never articulated the A102 standard of harm when following the form-based approach. The real question is how grounded in sound economics the rules can be. As Petit outlines, nobody would dispute the fact that the CJEU provided greater clarity and predictability when injecting effects-based reasoning into the concerted practices concept in Woodpulp and into the objects category in Groupment des Cartes Bancaires.

therefore, in rebates cases, undertakings face little certainty. It is simply not clear whether such conduct will be sanctioned and what the relevant standard of abuse is. Notwithstanding all of this, though, an effects-based approach to A102 abuse is, as has been argued, a sensible way forwards – if the rules can be grounded in sound empirical data, theory and policy. That way, undertakings will reasonably be able to predict whether a court would find their conduct to be abusive. The simple truth is that the Guidance falls far short of providing greater clarity and predictability for the reasons outlined.

Therefore, to tie the argument together, the Guidance goes some way towards adopting an economic, effects-based approach. The aim of this is to provide greater clarity and predictability to potentially dominant undertakings. However, the Guidance is vague in places and does not exhaust the entire A102 field. The CJEU has not uniformly embraced the AEC test, and

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Profile for Per Incuriam, Cambridge University Law Society

Per Incuriam Michaelmas 2017  

This is the Michaelmas 2017 issue of Per Incuriam, the termly magazine of the Cambridge University Law Society.

Per Incuriam Michaelmas 2017  

This is the Michaelmas 2017 issue of Per Incuriam, the termly magazine of the Cambridge University Law Society.

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