Law: equity and trusts, foundations Books

Book SynopsisAs the arbitration of internal trust disputes has attracted significant attention amongst the arbitration and trust law communities in recent years, this book provides a timely and comprehensive examination of the ways of overcoming challenges associated with trust arbitration. Rebutting arguments made against the enforceability of trust arbitration clauses, it highlights key traps for the unwary when drafting such clauses, and thereby provides readers with the necessary knowledge to enter by the narrow gate of trust arbitration, rather than by the broad gate of trust litigation.Key features include: Guidance for the drafting of trust arbitration clauses In-depth analysis of the European Convention on Human Rights (ECHR) and natural justice issues posed by trust arbitration Comparisons between several commonwealth jurisdictions to determine how trust arbitration could work in each system Analysis and commentary on multiple common law trust arbitration statutes, as well as relevant international treaties, including the Hague Trust Convention and the New York Convention Arbitrators, private client lawyers, trust professionals and scholars will greatly benefit from the detailed analysis and commentary in this book. Accessible in style, it will also prove invaluable to students of arbitration or trust law.Trade Review‘A bold piece of scholarship on a topic of unusual complexity and great practical interest. Lucas Clover Alcolea ticks all the boxes with an engaging, thoroughly-researched, exhaustive study of the many facets of trust disputes. The privacy of the arbitral process has long been attractive to the universe of trusts and this excellent work examines every angle, from the arbitrability of trust disputes to the representation of minor, unborn or unknown beneficiaries, capping off with a helpful review of critical drafting issues in drawing up a trust arbitration clause.’ -- Sophie Nappert, Arbitrator, Gray's Inn, UK and Co-Chair, ICC Task Force on Trusts and Arbitration‘Arbitration of Trust Disputes is a very useful and clearly written addition to the international literature on arbitration law. Trusts pose unique challenges for arbitration. They are a creature of equity and the courts jealously guard their supervision of trusts for the benefit of the beneficiaries. This book addresses in depth the key issues of arbitrability of trust disputes and the ability of arbitration clauses to bind all affected parties, as well as associated process issues. By drawing on case law and legislation from across the world, this book provides invaluable insights of international relevance and significance.’ -- Nicola Peart, Emerita Professor of Law, University of Otago, New Zealand‘Arbitration of Trust Disputes is a comprehensive and insightful analysis of the special issues that arise when internal trust disputes are brought to arbitration. The text not only provides both scholarly and practical guidance, it also offers both domestic and international perspectives. This book is a welcome addition to the growing literature on trust arbitration.’ -- Dr. S.I. Strong, The University of Sydney, AustraliaTable of ContentsContents: 1. Introduction to the Arbitration Of Trust Disputes 2. (In-)arbitrability 3. Binding parties to trust arbitration clauses 4. Trust arbitration and due process: The ECHR and common law principles of natural justice 5. Representation of beneficiaries in arbitral proceedings 6. Conflicts of laws issues and The Hague Trust Convention 7. Existing statutory frameworks for trust arbitration 8. Enforceability of trust arbitration awards under the New York Convention and commonwealth law 9. Issues to consider when drafting a trust arbitration clause Bibliography Index

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Book SynopsisThe so-called Quistclose trust probably represents the single most important application of equitable principles in commercial life. (Lord Millett in the foreword to this book). The decision of the House of Lords in Twinsectra v Yardley has refocused attention on the Quistclose trust. Although accepted by insolvency lawyers as a convenient tool for corporate rescue, the precise basis of the trust has always been in doubt. The purpose of these essays is to explore the foundations of the trust and subject them to a searching analysis. Contributors: Robert Stevens (Oxford), 'Rolls Razor Ltd'; William Swadling (Oxford), 'Orthodoxy'; James Penner (LSE), 'Lord Millett's Analysis'; Lionel Smith (McGill), 'Understanding the Power'; Robert Chambers (Alberta),'Restrictions on the Use of Money'; Peter Birks (Oxford),'Retrieving Tied Money'; Ewan McKendrick (Oxford), 'Commerce'; Robert Stevens (Oxford), 'Insolvency'; George Gretton (Edinburgh),'Scotland'.Trade ReviewAll students and practitioners who are required to deal with trust relationships should read this book, as it is a masterclass of learning and insight on the subject of trusts. Martin Palmer Journal of International Trust and Corporate Planning August 2004 ...it must be emphasised that this is an excellent collection of essays. The level of learning and scholarship contained therein is remarkable. From a practical perspective, this book has further confirmed that the Quistclose trust analysis remains somewhat unstable and lenders are better off relying on the conventional security, rather than structuring transactions around a Quistclose trust. From a personal perspective, the reviewer feels privileged to be able to review a book that contains Professor Birks' last published word on the subject of Quistclose trust. Look Chan Ho Journal of Business Law November 2004Table of Contents1. Rolls Razor Ltd Robert Stevens 2. Orthodoxy William Swadling 3. Lord Millett’s Analysis James Penner 4. Understanding the Power Lionel Smith 5. Restrictions on the Use of Money Robert Chambers 6. Retrieving Tied Money Peter Birks 7. Commerce Ewan McKendrick 8. Insolvency Robert Stevens 9. Scotland George Gretton

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Book SynopsisLandmark Cases in Equity continues the series of essay collections which began with Landmark Cases in the Law of Restitution (2006) and continued with Landmark Cases in the Law of Contract (2008) and Landmark Cases in the Law of Tort (2010). It contains essays on landmark cases in the development of equitable doctrine running from the seventeenth century to recent times. The range, breadth and social importance of equitable principles, as these affect commercial, domestic and even political matters are well known. By focusing on the historical development of these principles, the essays in this collection help us to understand them more clearly, and also provide insights into the processes of legal change through judicial innovation. Themes addressed in the essays include the nature of the courts' equitable jurisdiction, the development of property rights in equity, constraints on the powers of settlors to create express trusts, the duties of trustees and other fiduciaries, remedies for breach of these duties, and the evolution of constructive and resulting trusts.Table of Contents1. The Earl of Oxford's Case (1615) David Ibbetson 2. Coke v Fountaine (1676) Mike Macnair 3. Grey v Grey (1677) Jamie Glister 4. Penn v Lord Baltimore (1750) Paul Mitchell 5. Burgess v Wheate (1759) Paul Matthews 6. Morice v Bishop of Durham (1805) Joshua Getzler 7. Tulk v Moxhay (1848) Ben McFarlane 8. Prince Albert v Strange (1849) Lionel Bently 9. Ramsden v Dyson (1866) Nick Piška 10. Bishop of Natal v Gladstone (1866) Charlotte Smith 11. Earl of Aylesford v Morris (1873) Catharine MacMillan 12. Re Hallett's Estate (1879–80) Graham Virgo 13. North-West Transportation Co Ltd v Beatty (1887) Lionel Smith 14. Rochefoucauld v Boustead (1897) Ying Khai Liew 15. Re Earl of Sefton (1898) Chantal Stebbings 16. Nocton v Lord Ashburton (1914) James Edelman 17. Regal (Hastings) Ltd v Gulliver (1942) Richard Nolan 18. National Anti-Vivisection Society v Inland Revenue Commissioners (1948) Jonathan Garton 19. National Provincial Bank Ltd v Ainsworth (1965) Alison Dunn 20. Boardman v Phipps (1967) Michael Bryan 21. Pettitt v Pettitt (1970) and Gissing v Gissing (1971) John Mee 22. Paragon Finance plc v DB Thakerar & Co (a firm) (1999) Christian Daly and Charles Mitchell

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Book SynopsisThis book presents a comprehensive legal and constitutional study of emergency powers from a comparative common law perspective. It is one of very few comparative studies on three jurisdictions and arguably the first one to explore in detail various emergency powers, statutory and common law, constitutional and statutory law, martial law and military acting-in-aid of civil authority, wartime and peacetime invocations, and several related and vital themes like judicial review of emergency powers (existence, scope and degree). The three jurisdictions compared here are: the pure implied common law model (employed by the UK), implied constitutional model (employed by the USA) and the explicit constitutional model (employed by India). The book’s content has important implications, as these three jurisdictions collectively cover the largest population within the common law world, and also provide maximum representative diversity. The book covers the various positions on external emergencies as opposed to internal emergencies, economic/financial emergencies, and emergent inroads being made into state autonomy by the central or federal governments, through use of powers like Article 356 of the Indian Constitution. By providing a detailed examination of the law and practice of emergency powers, the book shares a wealth of valuable insights. Specific sub-chapters address questions like – what is the true meaning of ‘martial law’; who can invoke ‘martial law’; when can it be invoked and suspended; what happens when the military is called in to aid civilian authorities; can martial law be deemed to exist or coexist when this happens; what are the limits on state powers when an economic emergency is declared; and, above all, can, and if so, when and how should courts judicially review emergency powers? These and several other questions are asked and answered in this study. Though several checks and constraints have been devised regarding the scope and extent of ‘emergency powers,’ these powers are still prone to misuse, as all vast powers are. A study of the legal propositions on this subject, especially from a comparative perspective, is valuable for any body politic that aspires to practice democracy, while also allowing constitutionally controlled aberrations to protect that democracy. Trade Review“Discerning readers will find the book’s combination of academic rigour, practical insight and considerable forthrightness worthy of commendation.” (The Commonwealth Lawyer, Vol. 31 (1), April, 2021)Table of ContentsChapter 1 – The Concept of Emergency Powers in History and Political Thought: Greek, Roman, and Indian paradigms I. Ideas Underlying the Concept of Emergency Powers II. The Greek Period III. The Roman Dictatorship i. Appointment of Dictators ii. Limitations of Time iii. Non-Derogable Areas iv. Other limitations v. Some additional effects of use of emergency powers vi. The decline of the dictatorship IV. Ancient and Medieval IndiaChapter 2 – Martial Law: A Comparative Analysis of the USA, the UK, and India I. IntroductionII. A Brief History of Martial LawIII. Martial Law in the United Statesi. Military Law, Military Government and Martial Lawii. Absolute and Qualified Martial Law & Preventive and Punitive Martial Lawiii. State of Insurrection and State of Wariv. Historical Instances of Use of Forcev. Is Martial Law Constitutional in USA?vi. Proclamation of Martial Lawa. Identity of Proclaimerb. Nature and Content of Proclamationsc. Necessity and Effect of Proclamationsvii. Permissible consequences of Martial Lawa. Exercise of powers in absence of trial of civilians by military tribunalsb. Trials of civilians by military tribunalsviii. Suspension of the writ of Habeas Corpusa. Martial Law and Suspension of Writ of Habeas Corpus differentiatedb. Who may suspend the writ?IV. Martial Law in Englandi. Historical Evolution and Significant Instances of Useii. Martial Law: Prerogative or Common Law?iii. Proclamations of Martial LawV. Martial Law in Indiai. Pre-Independence Judicial Opinionii. Post-Independence Judicial Opinioniii. Can Martial Law be proclaimed under article 34? An alternative view: Historical Analysis of article 34Chapter 3 – Military Acting in Aid of Civilian Authority I. IntroductionII. Use of Military in Situations not amounting to Martial Law in the United Statesi. The National Guardii. Some instances of use of the military in aid of civil authorityiii. Distinctions between martial law and use of military in aid of civil authorityiv. Principles governing liability of Guardsmen and Higher Officersa. General Principlesb. False arrest and imprisonmentc. Use of excessive forced. Immunity, if any?v. Judicial review of actions of Guard in other situationsvi. Use of force by the Federal Government: The Debs PrincipleIII. Military Acting in Aid of Civil Authority in UKi. Distinction between martial law and military acting in aid of civil authorityii. Historical evolution and current status of the civil decision to deploy militaryiii. Judicial review and some other issues IV. India: No direct comparative jurisprudence exists though some principles are summarizedChapter 4 – Judicial Independence and Economic Emergency with Special Focus on India I. IntroductionII. Economic Emergency under the Indian ConstitutionIII. Financial Independence of the Judiciaryi. Judicial Salaries and Judicial Independenceii. Judicial Salaries and the Question of Independence in the United StatesIV. Financial Independence of Judiciary under the Indian ConstitutionV. Judicial Review of Reduction of Judicial Salaries during an Economic Emergencyi. Colorable Exercise of Powerii. Fundamental Rights Violationiii. Judicial Review and Basic Structure Constitutionalism ConclusionChapter 5 – Emergency Powers in India I. Historical overview of Emergency Powers in Pre-Indepenent Indiai. Pre-British Indiaii. Company Rule: 1600-1857iii. Direct British Rule Prior to First World War: 1858-1914iv. First World War: 1914-18v. Inter War Years: 1919-39vi. Second World War and Independence: 1939-47 II. Emergency Powers in the Indian Constitutioni. Introductoryii. Travaux Preparatories Relating to Constitutional Provisionsiii. Changes in Emergency Provisions During and After 1975iv. Some legal aspects of Emergency Powersa. Proclamation of Emergencyb. Effects of Emergencyv. Post-Independence Emergenciesa. War Emergenciesb. The 1975 Peacetime Emergencyc. Detentionsd. The Press and Media III. President’s Rule: A Sui Generis Emergency Poweri. Introductoryii. Constituent Assembly Debates Relating to Article 355, 356, and 357iii. Post-Independence Changes in Article 355, 356, and 357iv. Some legal aspects of President’s Rule in Indiaa. Role and Status of President and Governor during an article 356 Proclamationb. Duration of Effects of Action under an article· 356 Proclamation· Violation of Constitutional Provisions relating to Parliamentary scrutinyc. Legality of suspension of Assemblyd. Judicial Review and Article 356· State of Rajasthan v. Union of India· S. R. Bommai v. Union of India Post Bommai Development

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