This is the first of three chapters dealing in depth with directors’ duties, following the overview provided in Chapter 10. The duties are divided into two themes: duties of care, skill and diligence, and duties of loyalty and good faith. The focus in this chapter is on the duties of care, skill and diligence. These duties are imposed by the common law, equity and the Corporations Act. This chapter commences with the common law and equitable foundations of the duty of care, skill and diligence, and considers their adoption into statute and the current law. It examines the safe harbour provided by the business judgment rule, and recent discussion on the scope and application of that rule. This chapter examines the ability of directors to delegate their duties and to reasonably rely on the information or advice provided by certain types of persons. Finally, the chapter considers the requirements imposed on directors and officers as a company approaches insolvency. The chapters which follow then consider the duties of loyalty and good faith.

This chapter addresses the rights of company members to protect their own interests or those of the company. The chapter focuses on the rights of shareholders in a company limited by share capital, but the principles and rules discussed here apply equally to members of companies limited by guarantee. The legal protections and remedies discussed here can arise in a number of situations.

This chapter is concerned principally with the legal remedies that can be sought by minority shareholders. We will see that these are mainly found in the Corporations Act, but we begin by looking at the common law history behind the statutory provisions. Then we turn to the statute, the three main remedies being actions for oppression and unfairness, the statutory derivative action, and the winding up remedy. The chapter then looks at three other forms of legislative action: injunctive relief, access to company information, and the use of civil proceedings by ASIC.

This chapter details the fragmented nature of the last sixty years of Aboriginal land repossession across Australia, both in terms of the nature of the rights and the level of restitution. Exploring the limited and uneven national Aboriginal land rights picture in 2024, we argue for an appreciation of the federal dimension of land rights policymaking. Uneven land restitution has resulted not just from spatially varying degrees of land commodification and the differing trajectories of land rights movements, although these were crucial. We aim to demonstrate that shifting state–Commonwealth (or Federal) relations within the Australian federation – crosscut against differing support from states and Commonwealth governments over time, and differing Commonwealth Government attitudes to federalism – led to a spatially uneven set of legislative land rights regimes across Australia. To do so, we narrate the varied responses to the Aboriginal land rights movement across the country in the wake of the Woodward Royal Commission in 1973 with an eye to the federal dimension. We argue that while the Whitlam, Fraser and Hawke governments from 1972 to 1991 all failed to legislate national land rights, they did so for very different reasons, leaving the land rights agenda to the states. Ultimately, it was the centralizing power of the High Court that brought about a national but inadequate and partial resolution to the Aboriginal land question. Finally, we provide a series of maps and tables describing the jurisdictional variation in rights and interests in land restored to Indigenous Peoples at present.

In Malaysia, three ethnic groups identify as “Indigenous Peoples”: the heterogeneous Peninsular Malaysia Orang Asli, natives of Sabah, and natives of Sarawak. Malaysia’s hybrid legal system confers differing constitutional, statutory, and common law rights and privileges to Indigenous Peoples, which present distinct yet shared experiences of their land rights. These Indigenous groups were granted differing levels of constitutional privileges during Malaysia’s constitutional formation, which resulted in divergent written laws for the protection and recognition of their customary lands and resources. These differing laws and histories have functioned to dispossess these communities of their traditional lands, territories, and resources in their own ways. The strategy of litigation has afforded Indigenous communities some recourse for gaps in the written law but common law development of such rights and the court process have equally proven to be a barrier in some cases. Although international commitments to the sustainable management of resources have increased possibilities for the inclusion of Indigenous communities in matters concerning their lands and resources, constitutionally-entrenched legal privileges have yet to translate to the effective protection and recognition of traditional Indigenous lands and resources in Malaysia.

This chapter begins by acknowledging punitive damages’ status as the paradigmatic proof of punishment’s place in the law of torts. A brief overview of current punitive damages practices around the world first shows that the place of punishment in tort law is no longer debated only by common law scholars. Then a detailed description of the understanding, scholarly treatment, and judicial availability of punitive damages focuses on two major common law jurisdictions (England and the United States) and various civil law legal traditions (mainly Latin America and Continental Europe). This map of the unique contours and idiosyncratic features of the scholarly debates and judicial availability of punitive damages of those jurisdictions reveals a common pattern that begs further inquiry: in most jurisdictions, the tendency is to frame the debate around the place of punishment in tort law such that the root problem becomes finding a way to circumvent the fundamental punitive quest instead of addressing it head-on.

The chapter explores the application of restraint of trade, a common law notion, to professional tennis, particularly as pertains to relations between agents and players. The chapter goes on to show the regulation of restraint of trade in the English common law and then applies its findings to sport law more generally. It goes on to identify restraints arising from national federations and state regulation, as well as those emerging from contractual relations between players and agents. The chapter then proceeds to apply the concept to professional tennis, particularly in respect of agency agreements with a focus on the Zverev case before the courts of England. The chapter also ponders whether restrictions in national team selections as well as bans imposed by transnational tennis stakeholders have the same or similar effect as the aforementioned restraints.

The first chapter explores the background to the 1600 Charter setting out the conditions for the establishment of the East India Company. Here I am interested in the rights of acquisition inherited from the exploratory age of the Tudor state rather than the more familiar story of its formal constitution. The language of charters granted to trading companies revealed something of the discursive complexity shaped by European powers striving to legitimize claims to overseas territory. England had few jurists of note and so the state drew partially and selectively on Roman and common law to foreground the precept of possession, not least because it conveniently rendered obsolete all challenges to the means of acquisition. The chartered companies of unprecedented size, capital and ambition which rose to power in the second half of the sixteenth century inherited this repertoire of legal pluralism but found in practice that the quest for conquest of overseas territory was compromised by geography and the existence of rival European powers with similar ambitions.

This chapter offers a brief overview of the basic thesis of the book – that we are currently in a period of widely understood instrumentalism with respect to the creation of common law by appellate courts in the United States. This modern era follows, almost by default, a long and traditional period of formalism, during which it was presumed that the nature of common law creation by appellate courts was fundamentally logical, objective, and mechanistic in nature. Belief in this understanding of appellate court lawmaking was discredited by the legal realist movement, which began in the first third of the twentieth century, and left a void that was filled by instrumentalism.

The current era of common law lawmaking is characterized by a conceptually incoherent and frequently inconsistent amalgam of formalist and instrumentalist elements. This has resulted in practice by, and before, appellate courts in the United States that is often opaque and confusing.

This chapter describes the traditional understanding of the nature of lawmaking by appellate courts in America. Often labeled as formalism, this conception of appellate court lawmaking is understood as being largely objective, highly logical, and fixed in nature. From this perspective, appellate judges were thought, while resolving specific disputes, to be also striving to develop and to refine the existing common law in a given jurisdiction so that it more and more came, over time, to accurately reflect a presumed ideal version of legal regulation. This activity was thought to be very similar in nature to the work of natural sciences when they seek to reconcile specific experimental results with current understandings and thereby move a field of science ever closer to an objectively correct account of the natural world. Accordingly, the ideal version of legal doctrine toward which formalist common law lawmaking aspired was commonly known as the natural law.

The American Law Institute’s first ever Restatement of Medical Malpractice law provides an opportunity to examine how generic private law doctrine shapes itself to the distinctive core features of medical care. Various Restatement provisions reflect tort law’s recognition of key features of medical care that justify regarding medical liability as a distinct branch of negligence law. Tort law does so, however, in a somewhat anachronistic manner that regards medical care encounters in a highly individualized fashion -- one that sees patient care encounters as primarily dyadic (simply between doctor and patient), rather than being embedded in complex institutional, professional, regulatory, and economic structures. To some extent, this simplification helps determine legal obligations and enforce patient protections. In other respects, however, tort law has not yet adequately reflected fundamental changes in health care finance and delivery over the past generation or two. The Medical Malpractice Restatement considers these changes and responds to some of them, but not to others. Because a Restatement is, at its core, a synthesis of existing doctrine rather than a law reform enterprise, it is limited in the extent to which it can aim to improve or modernize law. Embedded in the Restatement are a number of key passages that point in potentially constructive directions that future evolution of tort doctrine might take. Other points of doctrinal rigidity, however, might require more overt law reform efforts to overcome.

During the sixteenth century, the King in Parliament terminated the jurisdiction of the Papacy in England and established by law the Church of England, with the King as its head. One task was to institute a new system of canon law for the national Church. Parliamentary statute provided for a commission to reform the canon law. In the meantime, pre-Reformation Roman canon law was to continue to apply to the Church of England if it was not repugnant to the royal prerogative and the laws of the realm. The commission was never appointed. The Roman canon law continued to apply on the basis of both statute and custom as part of the King’s ecclesiastical law. This chapter explores how the post-Reformation English ecclesiastical lawyers understood this continuing Roman canon law, its legal basis, and the role of the doctrine of reception in all this.

The Human Rights Act incorporates Article 9 of the European Convention of Human Rights guaranteeing the right to freedom of thought. Yet, in the absence of any guidance from the European Court of Human Rights and in line with the UK’s legal traditions, the right is protected in a piecemeal fashion akin to liberty and non-interference rather than the positive obligatory rights-based approach. As such, this chapter considers whether the right to freedom of thought exists in the common law. Finding that it does exist but that there is no certainty on its content, scope, or application, it is argued that this does not prevent the courts from determining the right under the common law. Attention is given to legal jurists and philosophers, as well as certain historical developments, which have influenced the UK’s development and protection of the right. The right to freedom of thought, like speech, is the liberty to speak truth to power, to dissent, and to organise an alternative form of governance. Contemporary legislation appears to acknowledge the forum internum (the inner realm of the mind) as a subject necessitating protection, albeit, not under the label of human rights.

Chapter 6 is a history of emancipation in New York that stresses the combined importance of economic and legal pressures on slavery in areas of Dutch control. The gradual legal freedoms slaves gained after the Revolution served as a foot in the door towards eventual emancipation. When slaves were routinely given the ability to choose new masters, to seek work on their own, and to make money on their own (with some repayment to the slave owners), they made a crucial first step into a world of freedom. Voluntary slave manumission and self-purchase emancipations were the result of a process of negotiating the terms of slavery’s demise one person at a time. This dispersed, on-the-ground struggle was shaped by statutory law, as others have recognized, but, arguably, it was the common law that demonstrated and determined New Yorkers’ changing attitudes about slaveholding. Courtroom decisions about interpreting the states’ laws on slavery guaranteed that the freedoms won through slaves’ negotiations with their enslavers would be protected by the courts.

This chapter takes Green Plan implementation as an important test case of climate policy implementation more generally and as an indicator of the potential obstacles to going beyond the mere reconciliation of environmental and human rights issues in pursuit of policies that advance environmental protection and human rights in synergistic ways.

This chapter introduces the idea of a competition–democracy nexus as the object of inquiry of the book and traces its intellectual trajectory across six centuries of legal, economic, and political thought. It shows how early manifestations of the idea of a competition–democracy nexus (competition–democracy nexus 1.0) took shape in the late 16th and early 17th century with the critique of monopoly by Thomas More, the early common lawyers and the English Leveller movement. It also recounts how early liberal thinkers, most notably Adam Smith, James Steuart and Montesquieu, celebrated the advent of competitive markets as a driving-force behind the transformation of the feudal order into a republican society. The chapter also analyses how the idea of a competition–democracy nexus (competition–democracy nexus 2.0) lay at the origin of US antitrust law and had an important bearing on various antitrust paradigms until the 1970s. The chapter further describes the emergence of the idea of a competition–democracy nexus as the central tenet of the German Ordoliberal School before and during the Second World War and its influence on the early days of EU competition law (competition–democracy nexus 3.0).

Wrongful actions by two or more persons may affect a plaintiff at the same time. Where each wrongdoer causes separate harm to the plaintiff, there are generally separate causes of action without any connection between them. Satisfaction by one wrongdoer does not discharge the other wrongdoers, and the plaintiff cannot generally join the wrongdoers as co-defendants. An exception exists where the wrongdoers act in concert, in which case they are joint wrongdoers, rendering each of them liable (at common law) for the total damage caused by all of them. Thus, where A and B simultaneously trespass on C’s land, each of A and B causing separate damage, the liability regime depends upon whether A and B are acting in concert.

The law of civil remedies has frequently been described as a ‘capstone’ private law subject. In other words, it is the culmination of a student’s knowledge of private law, and it is intended to assist all the disparate strands from previously studied private law subjects to come together.

It is for this reason that we will take a generally ‘functional’ approach to the organisation of this book, grouping remedies from across different areas according to the broad functions they perform so that parallels and contrasts can be made.