Reasserting the distinctive character of share-holder remedies in Scotland - Wilson v Inverness Retail and Business Park Ltd

Juridical Review. Looks at the question of whether an individual shareholder has title to bring an action on the company's behalf in exceptional circumstances, as considered in the cases of Anderson v Hogg and Wilson v Inverness Retail & Business Park Ltd. Examines the difference between English and Scottish law in this area, notwithstanding the reliance on English case law in Scotland due to the small number of Scottish cases decided. Looks at progress towards the reform of company law and the impact it will have on a shareholder's title to sue.

Effect of poor curing conditions and remedies on the durability of steel in concrete

An investigation was undertaken to study the effect of poor curing simulating hot climatic conditions and remedies on the durability of steel in concrete. Three different curing environments were used i.e. (1) Saturated Ca(OH)2 solution at 20°C, (2) Saturated Ca(OH)2 solution at 50°C and (3) Air at 50°C at 30% relative humidity. The third curing condition corresponding to the temperature and relative humidity typical of Middle Eastern Countries. The nature of the hardened cement paste matrix, cured under the above conditions was studied by means of Mercury Intrusion Porosimetry for measuring pore size distribution. The results were represented as total pore volume and initial pore entry diameter. The Scanning Electron Microscope was used to look at morphological changes during hydration, which were compared to the Mercury Intrusion Porosimetry results. X-ray defraction and Differential Thermal Analysis techniques were also employed for looking at any phase transformations. Polymer impregnation was used to reduce the porosity of the hardened cement pastes, especially in the case of the poorly cured samples. Carbonation rates of unimpregnated and impregnated cements were determined. Chloride diffusion studies were also undertaken to establish the effect of polymer impregnation and blending of the cements. Finally the corrosion behaviour of embedded steel bars was determined by the technique of Linear Polarisation. The steel was embedded in both untreated and polymer impregnated hardened cement pastes placed in either a solution containing NaCl or an environmental cabinet which provided carbonation at 40°C and 50% relative humidity.

Assessing the efficacy of structural merger remedies:choosing between theories of harm?

This paper shows that many structural remedies in a sample of European merger cases result in market structures which would probably not be cleared by the Competition Authority (CA) if they were the result of merger (rather than remedy).This is explained by the fact that the CA’s objective through remedy is to restore premerger competition, but markets are often highly concentrated even before merger. If so, the CA must often choose between clearing an ‘uncompetitive’merger, or applying an unsatisfactory remedy. Here, the CA appears reluctant to intervene against coordinated effects, if doing so enhances a leader’s dominance.

Assessing the efficacy of structural merger remedies:choosing between theories of harm?

Previous empirical assessments of the effectiveness of structural merger remedies have focused mainly on the subsequent viability of the divested assets. Here, we take a different approach by examining how competitive are the market structures which result from the divestments. We employ a tightly specified sample of markets in which the European Commission (EC) has imposed structural merger remedies. It has two key features: (i) it includes all mergers in which the EC appears to have seriously considered, simultaneously, the possibility of collective dominance, as well as single dominance; (ii) in a previous paper, for the same sample, we estimated a model which proved very successful in predicting the Commission’s merger decisions, in terms of the market shares of the leading firms. The former allows us to explore the choices between alternative theories of harm, and the latter provides a yardstick for evaluating whether markets are competitive or not – at least in the eyes of the Commission. Running the hypothetical post-remedy market shares through the model, we can predict whether the EC would have judged the markets concerned to be competitive, had they been the result of a merger rather than a remedy. We find that a significant proportion were not competitive in this sense. One explanation is that the EC has simply been inconsistent – using different criteria for assessing remedies from those for assessing the mergers in the first place. However, a more sympathetic – and in our opinion, more likely – explanation is that the Commission is severely constrained by the pre-merger market structures in many markets. We show that, typically, divestment remedies return the market to the same structure as existed before the proposed merger. Indeed, one can argue that any competition authority should never do more than this. Crucially, however, we find that this pre-merger structure is often itself not competitive. We also observe an analogous picture in a number of markets where the Commission chose not to intervene: while the post-merger structure was not competitive, nor was the pre-merger structure. In those cases, however, the Commission preferred the former to the latter. In effect, in both scenarios, the EC was faced with a no-win decision. This immediately raises a follow-up question: why did the EC intervene for some, but not for others – given that in all these cases, some sort of anticompetitive structure would prevail? We show that, in this sample at least, the answer is often tied to the prospective rank of the merged firm post-merger. In particular, in those markets where the merged firm would not be the largest post-merger, we find a reluctance to intervene even where the resulting market structure is likely to be conducive to collective dominance. We explain this by a willingness to tolerate an outcome which may be conducive to tacit collusion if the alternative is the possibility of an enhanced position of single dominance by the market leader. Finally, because the sample is confined to cases brought under the ‘old’ EC Merger Regulation, we go on to consider how, if at all, these conclusions require qualification following the 2004 revisions, which, amongst other things, made interventions for non-coordinated behaviour possible without requiring that the merged firm be a dominant market leader. Our main conclusions here are that the Commission appears to have been less inclined to intervene in general, but particularly for Collective Dominance (or ‘coordinated effects’ as it is now known in Europe as well as the US.) Moreover, perhaps contrary to expectation, where the merged firm is #2, the Commission has to date rarely made a unilateral effects decision and never made a coordinated effects decision.

Contracts for the sale of land and personal property:the equitable interests of the purchaser

As property lawyers, we are all familiar with the general principle that a contract for the sale of land, which is capable of specific performance, operates in equity so as to confer a trust on the purchaser pending completion of the sale. Although some controversy exists as to the exact nature of the trust, it is well established that, upon exchange of contracts, equity will ‘‘treat that as done which ought to be done’’1 with the consequence that the purchaser acquires equitable ownership even though full (legal) title to the land will not pass until completion (and registration). As land is unique, specific performance is readily available in the context of sales of land where damages would, clearly, not be an adequate remedy. The same cannot be said for contracts for the purchase of personal property where invariably the subject matter is not unique and where a substitute can easily be acquired in the open market. In circumstances, however, where the property is unique or scarce (for example, a rare painting or vintage car), the maxim that ‘‘equity treats as done that which ought to be done’’ may be invoked so as to confer on the seller an equitable obligation to transfer the property to the purchaser in fulfilment of the contract. Where, therefore, the contract is specifically enforceable in this way, the seller, it is submitted, will again hold the property on trust for the purchaser where, as in a contract for the sale of land, there is an interval between the date of the contract and completion of the sale. The notion that a seller holds personal property upon trust for the purchaser pending completion of the sale is admittedly controversial, but this article seeks to argue that the same principles governing equity’s intervention in sales of land should apply in the context of sales of personalty. It is submitted that equity’s role in imposing a trust on the vendor both in relation to sales of land and personalty may be important in safeguarding the interests of the purchaser prior to, as well as after, completion of the transaction.

Extra compensation for inventive employees:is our system equitable, unbiased and motivating?

There is a presumption that invention is good. It provides us with innovative goods, services and ways of doing things leading to greater employment, wealth and health. This article looks at the two recent UK cases regarding statutory extra compensation that may be awarded to employee inventors under the Patents Act 1977. Most universities worldwide and many companies have individual inventor reward schemes. Researchers now work in teams made up of both industry and academic researchers who are often based in different countries where different legal regimes apply. Is leaving the decision to award employees extra financial compensation up to individual companies unfair, unequal and de-motivating? Is having differing legislative systems in different European countries counter productive and a barrier to economic growth? There must be a balance between the inventor and the innovator. Do we have it right and if not what should it be? Legislation: Patents Act 1977 s.39 , s.40 , s.41 Cases: Kelly v GE Healthcare Ltd [2009] EWHC 181 (Pat); [2009] R.P.C. 12 (Ch D (Patents Ct)) Shanks v Unilever Plc [2010] EWCA Civ 1283; [2011] R.P.C. 12 (CA (Civ Div))

Contraception and heterosex: an intimate relationship

Whilst the importance of contraception within heterosex has long been accepted, particularly in relation to the prevention of HIV/AIDS, the way in which the use, or non-use, of contraception re/constructs heterosexual encounters themselves has had far less attention. The embodied nature of both the risk of pregnancy, and most contraceptive technologies leads women to assert a right to bodily autonomy. Yet this assertion conflicts with their expectation of equitable coupledom within heterosexuality and their routine consideration of men’s preferences. This article will argue that the use of contraception is an intricate part of heterosexual practices, and shows how normative ideas about heterosexuality leave men as appearing as an absent presence within women’s contraceptive decisions.

Casebook on contract law

This volume provides students with a comprehensive selection of the cases most likely to be encountered on contract law courses and is specifically designed to meet their needs. The case law is helpfully structured and presented under clear headings, with the emphasis on explaining the decisions and their implications in order to promote better understanding. The fifth edition incorporates important judgments and assesses the significance of recent decisions of the House of Lords such as Attorney-General v Blake and Alfred McAlpine Construction Ltd v Panatown Ltd and the decisions of the Court of Appeal in Director General of Fair Trading v First National Bank plc and Barclays Bank v Coleman. Important recent decisions on remedies for misrepresentation have also been included.

Common mistake:theoretical justification and remedial inflexibility

Discusses the implications for the doctrine of common mistake of the Court of Appeal ruling in Great Peace Shipping Ltd v Tsavliris Salvage (International) Ltd on whether a contract for the hire of a ship was void on the ground of common mistake regarding the position of the ship. Reviews the origins of the doctrine of common mistake and the relationship between the doctrine and the implication of terms. Considers the determination of impossibility. Examines the role of equity in common mistake and remedial equitable intervention.

Justifying partial rescission in English law

Comments on the refusal of the English courts to recognise the existence of a remedy of partial rescission, suggesting that in certain restricted instances justification exists for the grant of such a remedy. Considers the nature of the remedy of rescission under English law, the English courts' approach towards partial rescission and the nature and scope of the discretions available to the courts, noting the decisions in TSB Bank Plc v Camfield and De Molestina v Ponton. Reviews the historical origins of the remedy of rescission, including the distinction between fraudulent and non fraudulent misrepresentation and the origins of the so called concurrent and auxiliary equitable jurisdictions. Compares the approach of the Australian courts and highlights examples of recognition of partial rescission under international law.

Undue influence and the family home

This book provides a comprehensive analysis of the doctrine of undue influence in the context of the family home and fully incorporates the recent House of Lords ruling in Royal Bank of Scotland v Etridge (No 2) (2001). It is aimed predominantly at the legal practitioner, but will also act as a useful source of reference for academics and students of contract, land law and equity and trusts. Emphasis is placed on claims brought by spouses (usually the wife) seeking to set aside a charge over the matrimonial home made in favour of a lending institution. The role of lenders in this context is also examined in depth, as is the part played by the solicitor acting on behalf of the parties. Apart from providing an exposition of the doctrine and its key elements, the book also gives a broader outlook by examining the Commonwealth experience (notably in Australia, Canada and New Zealand) and suggesting an underlying concept of unconscionability as governing undue influence claims. There is also a separate chapter on remedies, as well as an appendix containing a number of draft pleadings for use by the legal practitioner. In the foreword, the Honourable Mr Justice Neuberger writes: 'Pawlowski and Brown are to be congratulated for having produced a book ...as comprehensive and user-friendly as this volume. Not only have they considered the effect of the authorities in a clear and logical way, but they have also highlighted problems which have yet to be resolved and questions which have yet to be answered ...one of the hallmarks of a good legal book.'

Factor analysis and discriminant validity:a brief review of some practical issues

Growth in availability and ability of modern statistical software has resulted in greater numbers of research techniques being applied across the marketing discipline. However, with such advances come concerns that techniques may be misinterpreted by researchers. This issue is critical since misinterpretation could cause erroneous findings. This paper investigates some assumptions regarding: 1) the assessment of discriminant validity; and 2) what confirmatory factor analysis accomplishes. Examples that address these points are presented, and some procedural remedies are suggested based upon the literature. This paper is, therefore, primarily concerned with the development of measurement theory and practice. If advances in theory development are not based upon sound methodological practice, we as researchers could be basing our work upon shaky foundations.