There is a statutory right for employees not to be unfairly dismissed. The right usually requires a qualifying period of continuous employment, and claim has to be made to an employment tribunal within three months of the effective date of termination. The employee has to prove dismissal has occurred, though resignation in response to a fundamental breach of contract by the employer counts as constructive dismissal. The courts have interpreted the statutory test of fairness to require proof that the employer acted outside of the range of reasonable responses to the fault of the employee. Some reasons for dismissal are automatically unfair. The normal remedy for unfair dismissal in practice is not reinstatement but a modest award of compensation for which there is an upper limit.

Based on international standards, the EU Directive on Working Time, implemented in the Working Time Regulations, places limits on the working week, mandates rest periods each day and each week, and provides for paid annual leave. These rights are subject to various exclusions for certain types of employment, permit some opt-outs by terms in the contract of employment, and also permit collective agreements to modify the rights. The chapter considers these various matters, and concludes by examining the weak remedies provided by health and safety inspectors and some civil claims.

Companies come into existence through registration. As discussed in Chapter 4, for a company to be registered it must have a constitution and/or have adopted all or some of the replaceable rules set out in the Corporations Act. The constitution and/or replaceable rules establish the internal rules that govern how the company operates. This chapter discusses the importance of these rules, whom they bind, and how they can be amended. It also discusses the rules that apply when there is a variation of the rights attaching to shares.

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.

The chapter explains the increasing frequency of so-called morality clauses imposed by sponsors in sponsorship agreements with professional tennis players. The aim of these clauses is to restrict players from particular conduct that reflects negatively on the product sponsored. The chapter explains the contractual nature of these clauses and provides an explanation as to how a violation of these restrictions may bring about a right of termination on the part of the sponsor. In the particular tennis context, the chapter explains the impact of social media and the digital world. It goes on to provide examples of morality clauses in tennis endorsement agreements.

Chapter 14 on Intergenerational Equity sheds light on how this principle, which posits a responsibility to ensure that future generations inherit a habitable planet, has been invoked in climate cases to date. The authors examine how this principle has been interpreted and applied across different jurisdictions, highlighting the notable contributions of jurisprudence from the Global South in shaping the development and understanding of the principle. Through an examination of leading cases from around the world, they illuminate how courts in these jurisdictions have infused their decisions with a consideration for future generations, thereby advancing a more inclusive and long-term perspective on climate justice. The authors distil instances of emerging best practice where the principle of intergenerational equity has been invoked to guide legal reasoning and judicial decisions in climate cases. They underscore the potential of this principle to shape future climate litigation, particularly as the impacts of climate change increasingly span across generations.

Chapter 18 offers a critical analysis of the types of remedies sought in climate cases and examines their implications within the legal landscape. Drawing on a comprehensive analysis of climate lawsuits from around the world, the authors provide insights into the diverse range of remedies that have been sought to address the adverse impacts of climate change. They then shed light on the different considerations and approaches that courts have taken when determining appropriate remedies. In their exploration of emerging best practices, the authors highlight instances where courts have adopted innovative and transformative approaches to remedies in climate litigation. They examine creative legal mechanisms that go beyond traditional compensatory measures and explore the potential of remedies such as injunctive relief, restitution, and declaratory judgments to address the multifaceted challenges posed by climate change.

A number of factors must be considered when reflecting on State responsibility and they are assessed in this chapter. First, what constitutes an internationally wrongful act for which a State may be responsible? Second, what conduct may be attributed to the State? Third, what reparation must a State make in the event it is held responsible for a wrongful act? Fourth, what defences might be available to a State that would preclude a finding of wrongfulness? Related issues such as diplomatic protection, nationality of claims, and the exhaustion of local remedies are also considered in this chapter.

This chapter explores the intricate legal concepts of co-ownership and neighbour relations under Chinese property law. The first section delves into co-ownership, explaining its categories: co-ownership by shares and common ownership. It discusses the rights and obligations of co-owners, the management of co-owned property and the legal remedies available for disputes. The chapter highlights how co-ownership can be established through contracts, partnerships and familial relationships, and examines how these relationships influence the management and division of property.

The second section focuses on neighbour relations, covering the concept and content of neighbour rights. It outlines the principles governing these rights, such as facilitating production and ensuring convenient living while balancing fairness and reasonableness. The chapter discusses the impact of civil customs on neighbour relations, providing case studies to illustrate how local practices influence legal decisions. By examining these elements, the chapter provides a comprehensive overview of how co-ownership and neighbour relations are regulated, emphasising the importance of harmony and co-operation in property management and dispute resolution.

This chapter argues that while great strides have been made to humanise the law of diplomatic protection, its practice in the courtroom is not in alignment with this as the protected individual does not participate in proceedings. It first dismantles the famous Mavrommatis fiction and argues that other conditions for diplomatic protection (such as nationality and the exhaustion of local remedies) and its features (such as state discretion and state responsibility) have been increasingly humanised to place emphasis on the individual. Second, it analyses the case law to show how the individual does not participate in proceedings at the Peace Palace. Finally, it provides suggestions to advocate for stronger procedural participation for the injured individual in cases of diplomatic protection at the ICJ.

National courts are central actors in the EU legal system. In a system of remedies against EU acts, they take on a filtering function. Comparatively few civil society actors – individuals, groups, or companies – have direct access to the EU courts. This chapter focuses on the autonomous role that national courts can and do take on in addressing alleged rights violations by the EU. The chapter explores how enterprising civil society actors seize on the ambiguities inherent in a multi-level jurisdiction with contested hierarchies. In focusing on such efforts, this chapter is less interested in doctrinal questions of how to resolve conflicts inherent in a pluralist legal order. Rather, it looks at the circumstances under which civil society litigants – individuals, groups, and companies – address a claim to a national court and where national courts have historically been open to such claims.

Chapter 8 focuses on the enforcement of a final and binding award. It discusses the difference between orders and awards and when each is used in the arbitration proceedings. There are different types of awards that can be granted by tribunals, such as final awards, partial and interim awards, consent awards, and default awards. A tribunal has an obligation to make best efforts to produce an enforceable award. It is important that a tribunal make clear whether an award isa final award, and if so, that it ensures that the award deals with all issues in dispute between the parties. A lack of clarity could lead to requests for interpretation or even to attempts to vacate. In sum, to ensure the validity of an award, arbitrators need to take the time to craft the award carefully, to meet the legal requirements as to form and content, to make a clear representation of the substance of the award, and to ensure that the award does not exceed the scope of their authority. A highly valued aspect of international arbitration is that once an award is granted, it is enforceable and is not subject to being vacated or refused enforcement on the merits.

This chapter commences by analyzing the relevance the Permanent Court of International Justice’s judgment in the Chorzów Factory case and the prevailing position that it reflects customary international law on the remedies available for treaty breaches. The analysis then focuses on why references to remedies other than compensation (available under customary international law) are rare in investor-state arbitrations and whether there is a place for restitution and/or declaratory awards in international investment law. If claimants choose to seek restitution, tribunals are empowered to make such an award, unless this is explicitly excluded by the underlying treaty or is practically impossible (or at least inadequate) on the facts of the particular case. The ‘Spanish saga’ cases on renewable energy confirm this approach. Satisfaction, a third type of remedy available under customary international law, a declaratory award, is considered as a ‘paper victory’ which, in practice, is tantamount to losing a case. The final part of this chapter analyzes various issues related to compensation itself, in practice the most important remedy in international investment law.

This chapter deals with defences to the trespass actions discussed in Chapters 6 and 7. As a general rule, the defendant bears the burden of proving the facts necessary to constitute a defence. Where the defence is established, the defendant will be relieved of liability.

It should be noted that some statutory defences, which are similar to common law defences, are provided by the civil liability legislation and/or Criminal Code in most of the Australian states and territories. Therefore, when considering such defences, the relevant legislation in a particular jurisdiction must be consulted. This chapter will discuss some of the most important defences available for trespass to the person, trespass to land and trespass to personal property.

The defences fall within three roughly divided categories:

1. (1) Self-help based defences

2. (2) Justification-based defences

3. (3) Fault-based defences

   We also consider a number of factors that are not defences to trespass at the end of this chapter.

In a tort action, if the plaintiff’s claims are successful and no relevant defences are available to the defendant, the plaintiff will be entitled to an order or award by the court for an appropriate remedy. Such judicial remedies include:

• damages

• injunctions

• declarations.

In addition, self-help remedies are available and include:

• eviction of trespassers and re-entry of land

• self-defence

• abatement

• apology.

  The focus of this chapter will be on judicial remedies, especially damages.

‘Trespass’ is a generic term encompassing a set of wrongs involving direct, and usually intentional, interference with either the person or property affected. There are three different forms of trespass actions: trespass to the person, trespass to land and trespass to goods (chattels).

These trespass actions create a number of fundamental common law rights protecting a plaintiff’s personal dignity, desire for autonomy, interests in the physical integrity of people’s body and the exclusive possession of land and goods. While the common aim of these forms of action is to protect the fundamental common law rights of a person, the ingredients of each tort are quite disparate.

This chapter first considers the historical origins of trespass, before discussing the trespass action. It then deals with the tort of ‘trespass to the person’ as well as three nominate torts under this form of action, before discussing remedies available for trespass to the person.