Rectification of Documents: Removing Unnecessary Complexity
Within the equitable doctrine of rectification, a distinction between common or mutual mistake and unilateral mistake is currently adopted by courts, litigants and scholars. Based on this distinction the focus of a court is to identify who made a mistake and who had knowledge of any mistake. This approach is unhelpful and has led to unnecessary complexity which has been identified by judges and scholars in several recent cases in England and Australia. In addition, the boundary between common law construction and the equitable doctrine of rectification has become less clear. To address the complexity of the law and the uncertain boundary between construction and rectification this thesis examines the scope of the common law approach to construction, identifies the current law relating to when rectification will be granted, outlines in what ways is it difficult to reconcile the current case law, and explains where the law of rectification went wrong. After addressing those matters the thesis explains how the case law on the equitable doctrine of rectification needs to be restated, in accordance with principles established in earlier case law, so that the law is coherent and principled. This provides a comprehensive solution to the uncertainty and complexity in the law of rectification. The solution includes arguing that the distinction between common or mutual mistake and unilateral mistake should be rejected and that the correct distinction is between two different types of mistakes: mistakes made in the recording of agreements and mistakes made during the formation of agreements. In addition, courts in recent decades have focused on the intention of the parties rather than on agreements made by contracting parties. It is argued that a focus on the type of mistake made, and a focus on agreements rather than intentions, will remove the current complexity and uncertainty in the law of rectification that has emerged in recent cases.
A Legal Framework for Effective Patent Licenses that Support Technology Transfer: A Libyan Perspective
This thesis discusses the different aspects of licensing agreements to exploit patented technology. Such licencing agreements are important when considering technology transfers to developing countries. The study addresses whether the current Libyan legal framework is able to accommodate such licences in terms of preparing and drafting a patent licence and identifying the rights and obligations of the parties. The study finds that the licensing agreements and technology transfer agreements are not subject to special provisions under the Libyan legal system, and are regulated under the general provisions of contracting in the Libyan 'Civil Code 1953', which does not adequately deal with some of the typical terms of licensing agreements. The Libyan legislature, therefore, should find alternative approaches to overcoming the difficulties that arise.
Company Directors' Obligations and Liabilities in Relation to Insolvent Trading in Thailand: A Comparative Perspective
Inadequate provisions for dealing with corporate insolvency are a significant obstacle in the economic development of Thailand. Companies which continue to trade even after they are unable to pay their debts (insolvent trading), often experience meltdowns that result in deep insolvencies that severely impact their creditors. In the Asian Financial Crisis in 1997, the Thai economy was significantly impacted by the insolvent trading practices of Thai companies. The Pin Chakkaphak case, in which the Thai government unsuccessfully sought a UK court to extradite Pin Chakkaphak, the then CEO of Fin One, for providing uncommercial loans to insolvent subsidiary companies, is a leading example of how Thai laws are neither effective nor adequate to deal with the problem of insolvent trading. Nevertheless, in spite of the known problems, current Thai corporate and insolvency laws still do not provide specific provisions or measures to regulate insolvent trading. Developed countries, such as the United Kingdom, Australia, the United States and Germany, have specific statutory or common law provisions to control insolvent trading. In addition, the United Nations Commission on International Trade Law (UNCITRAL), provides the 'Legislative Guide on Insolvency Law' by recommending the imposition of specific obligations on company directors to take appropriate action in order to minimise potential losses in the period approaching insolvency. An essential component of good corporate governance frameworks, whether at the domestic or international level, is the specification of the director's obligations and liabilities with respect to insolvent trading.
The Public Policy Exception to the Recognition and Enforcement of Foreign Arbitral Awards in Thailand
In today's fast moving business world, international arbitration has been widely used as an alternative dispute resolution mechanism to litigation. Arbitration's popularity is due to the fact that the proceedings are fast, confidential, and flexible. In addition, another significant reason why people choose to arbitrate their disputes is that arbitral awards are final and binding. There is no need to spend a lot of time and money to resolve the conflict. Thus, the finality of arbitral awards is crucial. The drafters of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (known as the 'New York Convention') value the finality of arbitral awards. Therefore, the grounds to refuse the recognition and enforcement of foreign arbitral awards under art V of the Convention are exhaustive. One of the grounds is the public policy exception which has been considered as a loophole of the New York Convention. Even though the language of the Convention simply uses the term 'public policy', international organisations, judges, and scholars have made efforts to indicate that the public policy exception should be construed narrowly - namely international public policy. Although the New York Convention has a high proportion of Contracting States, this does not appear to guarantee that these Contracting States will fully comply with the Convention. The public policy exception, in particular, can be problematic as it is sometimes used in some States as a shield by the national courts to protect the enforcing States' national or local interests. Consequently, it could be argued that there are instances when the Contracting States violate the principle of finality and limited review of arbitral awards. This thesis argues that the law and practice concerning the application and interpretation of the public policy exception under the Thai Arbitration Act B.E. 2545 (2002) is problematic. In order for Thailand to fulfil its obligations and be an attractive place of investment and arbitration, reform of the Thailand's arbitration law in relation to the application of the public policy exception is required.