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.

Antecedents, mechanisms and processes of deinstitutionalization and institutional change:a case study approach to understanding enterprise under duress

Adopting a grounded theory methodology, the study describes how an event and pressure impact upon a process of deinstitutionalization and institutional change. Three case studies were theoretically sampled in relation to each other. They yielded mainly qualitative data from methods that included interviews, observations, participant observations, and document reviews. Each case consisted of a boundaried cluster of small enterprises that were not industry specific and were geographically dispersed. Overall findings describe how an event, i.e. a stimulus, causes disruption, which in turn may cause pressure. Pressure is then translated as a tension within the institutional environment, which is characterized by opposing forces that encourage institutional breakdown and institutional maintenance. Several contributions are made: Deinstitutionalization as a process is inextricable from the formation of institutions – both are needed to make sense of institutional change on a conceptual level but are also inseparable experientially in the field; stimuli are conceptually different to pressures; the historical basis of a stimulus may impact on whether pressure and institutional change occurs; pressure exists in a more dynamic capacity rather than only as a catalyst; institutional breakdown is a non-linear irregular process; ethical and survival pressures as new types were identified; institutional current, as an underpinning mechanism, influences how the tension between institutional breakdown and maintenance plays out.

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.

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.

The interaction between master production scheduling and detailed capacity requirements planning : closing the loop in manufacturing resource planning (MRPII) systems

The widespread implementation of Manufacturing Resource Planning (MRPII) systems in this country and abroad and the reported dissatisfaction with their use formed the initial basis of this piece of research which concentrates on the fundamental theory and design of the Closed Loop MRPII system itself. The dissertation concentrates on two key aspects namely; how Master Production Scheduling is carried out in differing business environments and how well the `closing of the loop' operates by checking the capcity requirements of the different levels of plans within an organisation. The main hypothesis which is tested is that in U.K. manufacturing industry, resource checks are either not being carried out satisfactorily or they are not being fed back to the appropriate plan in a timely fashion. The research methodology employed involved initial detailed investigations into Master Scheduling and capacity planning in eight diverse manufacturing companies. This was followed by a nationwide survey of users in 349 companies, a survey of all the major suppliers of Production Management software in the U.K. and an analysis of the facilities offered by current software packages. The main conclusion which is drawn is that the hypothesis is proved in the majority of companies in that only just over 50% of companies are attempting Resource and Capacity Planning and only 20% are successfully feeding back CRP information to `close the loop'. Various causative factors are put forward and remedies are suggested.

Herbal medicines:physician's recommendation and clinical evaluation of St.John's Wort for depression

Why some physicians recommend herbal medicines while others do not is not well understood. We undertook a survey designed to identify factors, which predict recommendation of herbal medicines by physicians in Malaysia. About a third (206 out of 626) of the physicians working at the University of Malaya Medical Centre ' were interviewed face-to-face, using a structured questionnaire. Physicians were asked about their personal use of, recommendation of, perceived interest in and, usefulness and safety of herbal medicines. Using logistic regression modelling we identified personal use, general interest, interest in receiving training, race and higher level of medical training as significant predictors of recommendation. St. John's wort is one of the most widely used herbal remedies. It is also probably the most widely evaluated herbal remedy with no fewer than 57 randomised controlled trials. Evidence from the depression trials suggests that St. John's wort is more effective than placebo while its comparative efficacy to conventional antidepressants is not well established. We updated previous meta-analyses of St. John's wort, described the characteristics of the included trials, applied methods of data imputation and transformation for incomplete trial data and examined sources of heterogeneity in the design and results of those trials. Thirty randomised controlled trials, which were heterogeneous in design, were identified. Our meta-analysis showed that St. John's wort was significantly more effective than placebo [pooled RR 1.90 (1.54-2.35)] and [Pooled WMD 4.09 (2.33 to 5.84)]. However, the remedy was similar to conventional antidepressant in its efficacy [Pooled RR I. 0 I (0.93 -1.10)] and [Pooled WMD 0.18 (- 0.66 to 1.02). Subgroup analyses of the placebo-controlled trials suggested that use of different diagnostic classifications at the inclusion stage led to different estimates of effect. Similarly a significant difference in the estimates of efficacy was observed when trials were categorised according to length of follow-up. Confounding between the variables, diagnostic classification and length of trial was shown by loglinear analysis. Despite extensive study, there is still no consensus on how effective St. lohn's wort is in depression. However, most experts would agree that it has some effect. Our meta-analysis highlights the problems associated with the clinical evaluation of herbal medicines when the active ingredients are poorly defined or unknown. The problem is compounded when the target disease (e.g. depression) is also difficult to define and different instruments are available to diagnose and evaluate it.

Situation-specific cognitive behavioural self-therapy for erroneously suspected allergy or intolerance to a food:a short self-assessment tool

The recall of personal experiences relevant to a claim of food allergy or food intolerance is assessed by a psychologically validated tool for evidence that the suspected food could have caused the adverse symptom suffered. The tool looks at recall from memory of a particular episode or episodes when food was followed by symptoms resulting in self-diagnosis of food allergy or intolerance compared to merely theoretical knowledge that such symptoms could arise after eating the food. If there is detailed recall of events that point to the food as a potential cause of the symptom and the symptom is sufficiently serious, the tool user is recommended to seek testing at an allergy clinic or by the appropriate specialist for a non-allergic sensitivity. If what is recalled does not support the logical possibility of a causal connection between eating that food and occurrence of the symptom, then the user of the tool is pointed to other potential sources of the problem. The user is also recommended to investigate remedies other than avoidance of the food that had been blamed.

Interpreting "D.I.Y." documents:severance, release, trusts, certainty, vesting and undue influence

Comments on the Chancery Division decision in Wallbank v Price on whether a home-made ("DIY") document signed by a wife and purporting to revoke her rights as a beneficial joint tenant in the matrimonial home, which was acquired under the right-to-buy scheme, should be set aside for duress or undue influence. Details the court's analysis of the principles supporting a successful claim of undue influence, the nature of the DIY document, its meaning and its effect. Considers possible reasons for the parties' use of the document. Cases Wallbank v Price (2007) EWHC 3001 (Ch); (2008) 2 FLR 501 (Ch D (Birmingham)) : Royal Bank of Scotland Plc v Etridge (No.2) (2001) UKHL 44; (2002) 2 AC 773 (HL) : Paul v Constance (1977) 1 WLR 527 (CA (Civ Div)) Statutes Housing Act 1985