This chapter begins by introducing the concept of corporate governance, and the regulatory role of directors’ duties. An appreciation of corporate governance methodologies gives context to the ‘hard law’ of directors’ duties. The chapter then considers who falls within the definition of director, the role of the director within the company, and how that role attracts legal and non-legal regulation. It also identifies who, beyond directors, can also be subject to directors’ duties. The chapter revisits the history of directors’ duties within Australian corporate law, building on the historical context provided by Chapter 1, and exploring the interrelationship between the duties applicable at common law, in equity, and according to statute. It concludes with the consequences of breach of the civil penalty provisions and options for exoneration and relief under the Corporations Act.

This chapter discusses the legal capacity of a company to enter contracts. We discuss how companies enter contracts through agents and the statutory assumptions that protect third parties when dealing with companies. We also discuss pre-incorporation contracts.

There are several competing policy issues in this area of law. It is important that companies can enter contracts easily and be bound by their obligations. It is also important that third parties are not prejudiced if the internal requirements of a company in terms of capacity or authority to act as the company are not complied with. Both the law of contract and the Corporations Act seek to balance these issues—sometimes in interesting ways. It is useful to keep these policy perspectives in mind when studying this area of law.

Americans understood the importance of establishing judicial authority over maritime war from the moment they began resisting British hegemony in the 1770s. The states’ unwillingness to prevent American seafarers from violating the rights of foreigners during the American Revolution provoked diplomatic controversies that undermined the drive for independence. After the war, supporters and skeptics of the new Constitution fiercely debated its creation of a federal judiciary. Anti-Federalist critics feared the centralizing and despotic tendencies of life-tenured judges who would be “subject to no control.” But even the “most bigotted idolizers of state authority,” Alexander Hamilton famously wrote in The Federalist, agreed that the federal courts should have exclusive authority over maritime cases. If Americans truly wanted a government that could fulfill the nation’s international obligations and maintain harmony with other sovereigns, they needed a judiciary with the power to resolve disputes arising at sea.

Chapter 2 turns to the period directly after ratification, from 1954 to 1962, and shows how this was a remarkable lively period.

It makes two distinct claims. First, it contests the pervasive image that the Convention was ‘asleep’ in the domestic legal context. Rather, the Convention was immediately tried and tested and entered the domestic context in a flurry of heated activity, as litigants and other players set out their campaigns to define what the Convention would mean.

Second, it argues that the restrictive policy of the European Commission of Human Rights was a conscious legal strategy. Following the experiences of the Dutch member of the Commission and the national interaction with the European institutions, it can be argued how restraint was indeed part of a conscious effort to let states accept the right of individual petition. Simultaneously, however, the European Court embarked on campaigns to make the Court relevant.

The chapter ends in 1962 with failure on both the domestic and the European levels to make the Convention into something more than a distant document. These failures were essential in setting the stage for the Convention’s perceived legal irrelevance in the following two decades.

Several provisions of the Convention deal with technical matters under treaty law, including signature, ratification and accession to the Convention, entry into force, denunciation of the Convention, the role of the Secretary-General as depositary of the treaty, and revision of the treaty. There is no provision for reservations but they have been deemed to be acceptable to the extent that they are not contrary to the object and purpose of the Convention. The official languages of the Convention are Chinese, English, French, Russian and Spanish. The Chinese language version has been changed due to dissatisfaction to the original text, prompting protests from Lemkin and others. The status of the official Chinese text remains somewhat uncertain. The Convention also contains a ’colonial clause’, something that is today an anachronism but one that apparently permits States to avoid the application of the Convention in non-self-governing territories over which they exercise control.

This chapter provides a rough summary of how the United States came to be a federation of states rather than a unitary nation. To that end, it offers a thumbnail sketch of the timeline from the British colonial period to adoption of the US Constitution. The debates at the constitutional convention and the advocacy in both the Federalist and Antifederalist Papers are highlighted, with particular emphasis on the role of state sovereignty and the menu of choices that were open to the framers.

Before the 20th century, most rules of international law were in the form of customary international law. Since then, the increased complexity of international relations and rapid international development have led to a substantial growth in the number and diversity of treaties. Article 38(1)(a) of the Statute of the International Court of Justice (‘ICJ Statute’) recognises treaties as a (material) source of international law by referring to ‘international conventions, whether general or particular, establishing rules expressly recognized by the contesting states’. Treaties now regulate trade, communications, environmental protection, military cooperation and defence, and human rights, to name but a few of the myriad topics. International environmental law, for example, is almost entirely governed by treaties, and international trade, investment and communications ‘are unimaginable without treaties’. The main rules in the law of treaties are contained in the 1969 Vienna Convention on the Law of Treaties (‘VCLT’), which governs treaty relations between states and is the focus of this chapter.

This chapter examines how a state becomes a party to a treaty, including signature, initialling and ratification, where applicable. Whether a state can participate in a multilateral treaty depends on the terms of the treaty. The practice of the Council of Europe is examined. Signature may express consent to be bound but often signature will be subject to ratification. Ratification is the international act whereby a state establishes on the international plane its consent to be bound. It is to be distinguished from the domestic process which enables a state to ratify. Advice is given on the form and content of an instrument of ratification. A state may also consent to be bound by acceptance, approval or accession. Accession is primarily the means by which a state may become a party if it is unable to sign the treaty. The chapter also examines rights and obligations prior to entry into force, the possibility of withdrawing consent to be bound, and the ways in which treaties might be developed.

One key feature of the Constitution – the concept of federalism – was unclear when it was introduced, and threatened the Constitution’s ratification by those who feared the new government would undermine state sovereignty. In their famous essays in The Federalist, Alexander Hamilton and James Madison defended the Constitution and argued that state legislatures would sound the alarm if the national government exceeded its authority. They argued that through interposition state legislatures would effectively check the national government by mobilizing resistance should the government try to overreach. Resolutions passed by legislators could legitimately be considered an expression of the people that could then be shared with the state’s congressional delegation and other state legislatures. Hamilton’s and Madison’s advocacy for state legislatures as monitors of the equilibrium of the two levels of government under the Constitution was a rhetorical argument designed to address the objections of Anti-Federalists. At the time of the ratification debates, both men were deeply distrustful of state legislatures, yet needed to explain how the national government would not overwhelm the states.

Scholars often point to pressure from the United States as a key factor in driving membership in the nuclear nonproliferation regime, but this explanation has trouble explaining the changes we see in patterns of membership over time. This chapter shows that variation in the perceived effectiveness of the regime – as indicated by overall membership, the strength of verification measures, the effectiveness of enforcement, and a history of cooperation – better explains why states join. Member states are reluctant to forgo nuclear weapons without assurances that others will comply as well, and signals of regime effectiveness reassure states that their commitments will be reciprocated. This argument runs counter to the conventional wisdom among international organizations scholars, that there is a “depth versus breadth” tradeoff in institutional design. Drawing from archival documents, this chapter discusses the illustrative cases of the NPT ratification decision in Australia and Switzerland. It then tests its theory using data on state membership in the NPT.

Equity closely scrutinises relationships in which one party places trust and confidence in another. There are many examples of trust in human interaction, but equity cannot grant relief against every breach of trust and confidence, any more than contract law can enforce all promises. Only some trusting relationships and some obligations of confidence are protected. The relationships which equity protects are known as ‘fiduciary relationships’. A relationship of trust and confidence will be recognised as fiduciary where it arises from F (fiduciary) undertaking to act in the interests of B (beneficiary) in a matter which confers a discretion on F, and in respect of which the exercise of discretion affects B’s economic interests. B may hand over property to F, such as an investor handing over money to an investment adviser. A settlor may hand property to F to hold on trust for B. Alternatively, B may entrust F with the task of negotiating a contract on behalf of B so that F is B’s agent. Or F may be entrusted with the task of obtaining information on behalf of B which will enable B to exploit a commercial opportunity. This is also an example of agency.

Expressly political literature in the period of the Revolution and early republic attempts to balance, synthesize, or overcome the contradiction between the language of universal freedom and the nascent and evolving national institutions of domination, exploitation, and general unfreedom. In the early republic’s modern, specifically capitalist form of national law, the literary vehicle is inseparable from the emergent institutional form, and this essay argues that the early republic thus initiates a considerably new phase in the nexus of rhetorical expression and social power. Through readings of the Declaration of Independence, the Articles of Confederation, the Constitution, and key texts from the ratification debate, the essay traces the invention of a state machinery uniquely suited not primarily to overt domination over citizen-subjects, but rather to their exploitation by private actors formally extrinsic to the state – an apparatus writ small, in the grammar, syntax, and distinctive diction of the primary political texts.

This chapter focuses on the rules set out in the 1969 Vienna Convention on the Law of Treaties (VCLT). The chapter begins with the concept of a treaty, before discussing treatymaking, with a particular focus on the conclusion of treaties, their entry into force, and reservations to treaties. The chapter then delves into how treaties operate -- namely, their scope of application and their interpretation. Finally, this chapter looks at the invalidity, suspension, and termination of treaties.

This chapter focuses on the rules set out in the 1969 Vienna Convention on the Law of Treaties (VCLT). The chapter begins with the concept of a treaty, before discussing treatymaking, with a particular focus on the conclusion of treaties, their entry into force, and reservations to treaties. The chapter then delves into how treaties operate -- namely, their scope of application and their interpretation. Finally, this chapter looks at the invalidity, suspension, and termination of treaties.

International law depends on foreign relations law not only to establish the means by which states can consent to treaty obligations, but also the means to fulfill any resulting obligations, including by incorporating treaties into domestic law. Given that, the professed indifference of international law towards it—as toward other forms of domestic law—is puzzling. It is also misleading. As is widely evident, international affairs create an opportunity for certain domestic actors, usually executives, to assume additional authority. Less obviously, international law, reflected in the Vienna Convention on the Law of Treaties (VCLT), actually influences foreign relations law relating to the creation and elimination of international treaty obligations – encouraging even those states that possess other constitutional agents to regard executive power as sufficient. The homogenizing effects of particular international law rules is an important complement to the study of comparative foreign relations law.