Issue 2

BU Law Review

The Living Corporate Contract, Hypothetical Bargaining and Minority Shareholder Remedies under English and South African Law Article

The Living Corporate Contract, Hypothetical Bargaining and Minority Shareholder Remedies under English and South African Law

Charl Herman - LLM International Tax Law Student

Published in Issue 2, December 2018

The statutory contract – also known as the corporate contract – under the United Kingdom Companies Act 2006, is the foundation upon which the corporate relationship between the minority shareholders vis-à-vis the controllers of the company is governed. However, the statutory contract is unable to provide minority shareholders vis-à-vis the controllers of the company, with appropriate remedies in order to protect their underlying interests. This is because it fails to include the legitimate expectations and/or equitable considerations between the two parties, i.e., the minority shareholders and the controllers of the company. In this context, this article refers to the statutory contract as “the living corporate contract” whereby the relationship of the minority shareholders vis-à-vis the controllers of the company, is infused with the element of fairness.  This is evident, for example, in the problem of tunnelling, where the Companies Act 2006 does not adequately recognise and/or include within its ambit, the detrimental conduct that may be undertaken by majority shareholders in procuring an illicit benefit, at the expense of the company. Therefore, the Companies Act 2006 is in need of urgent reform, in order to more effectively prevent the controlling shareholder from avoiding the underlying obligations under the living corporate contract.

The Erosion of Caveat Emptor: The Impact of Protectionist Legislative and Judicial Developments in Favour of Legal Certainty and the Subsequent Effects on Freedom of Contract Article

The Erosion of Caveat Emptor: The Impact of Protectionist Legislative and Judicial Developments in Favour of Legal Certainty and the Subsequent Effects on Freedom of Contract

Joseph McMullen - Second Year LLB (Hons) Student

Published in Issue 2, December 2018

The historically endorsed principle of caveat emptor is argued to have been substantially eroded by the implied terms of the Sale of Goods Act 1979 and judicial attitudes toward freedom of contract and party autonomy. This paper explores the approach of modern law in respect of legal certainty and the extent to which the codification of the law of sale fulfils the expectations of buyers and sellers. Furthermore, the deviation from a laissez faire attitude in favour of one of judicial and legislative intervention is examined in light of the requirements imposed by the key implied conditions of satisfactory quality and fitness for purpose. The article also considers the impact of the determination of the status of terms, concluding that the law in this area is unduly complex and technical. This extraneous intricacy supports a much needed and welcomed consolidation of this area of law recently introduced by the enactment of the Consumer Rights Act 2015 in the context of consumer sales.

The legality of the use of force by the US against North Korea; in consideration of events on and up to 5th December 2017 Article

The legality of the use of force by the US against North Korea; in consideration of events on and up to 5th December 2017

Robin Elizabeth James - Final Year LLB (Hons) Student

Published in Issue 2, December 2018

The United States has considered the use of military force against North Korea in response to ongoing threats of nuclear attack. International law, stemming from the United Nations prohibits such action save for narrowly defined circumstances. This paper explores the web of customary and black letter law determining the current position of the United States and whether the use of military force would be considered a breach of the Charter of the United Nations (the Charter). It concludes that, in consideration of events up until 5 December 2017, the United States does not fall within the exception to the general prohibition on force due to the absence of sufficient action by North Korea which could be interpreted as an attack for the purposes of the Charter. Hypothetical situations are drawn on throughout the analysis to identify events which may alter the United States’ position against North Korea.

 

Key words:

Use of force, self-defence, armed attack, prohibition of force, proportionality, necessity,

Comic Art, Creativity and the Law Book Review

Comic Art, Creativity and the Law

Rosanna Bell - Second Year LLB (Hons) Student

Published in Issue 2, December 2018

This book review presents a overview of Professor Marc H. Greenberg’s book Comic Art, Creativity and the Law. Covering a range of topics from copyright, contracts, tax and laws surrounding obscenity, the book is a must-read for academics with an interest in intellectual property law as well as other areas of law.

Keywords: