A journal on law, power and the human experience

Published by Menara Aspen Advisory London England United Kingdom

Menara Aspen Advisory Journal ISSN 2979-1723

Site architecture by Menara Aspen Advisory Ltd

Editorial Framework

About

Publisher and Editor in chief

Elaine’s reflective insight into law and its structures is grounded in over fifteen years of frontline experience.Her writing examines the intersection of law, power, and lived experience, exploring how legal systems shape and are shaped by the people within them.Her work continues to evolve through her ongoing study of law and adjacent disciplines, informed by a commitment to clarity, depth, and considered thought.

Editorial Philosophy

The Menara Aspen Advisory Journal is built on the belief that clarity is a form of respect.Legal and structural issues shape everyday life, yet they are often obscured by complexity, jargon, or institutional distance. This journal aims to cut through that noise.I write with an architectural mindset: mapping foundations, tracing evolution, and showing how doctrines, systems, and ideas fit together.My approach is measured rather than sensational, analytical rather than adversarial.I value precision, context, and intellectual honesty.Each piece is crafted to stand alone, yet contribute to a broader body of thought.The journal is not a news feed or a commentary cycle; it is a curated archive — a long‑form exploration of law, structure, and the systems that govern us.Above all, the journal reflects a commitment to clarity, autonomy, and intentionality.

Journal Standards

Purpose

The Menara Aspen Advisory Journal publishes clarity‑driven commentary on law, structure, and contemporary practice. Each piece is written to inform, contextualise, and contribute to an evolving intellectual archive.

Accuracy and Integrity

*All legal references are checked against primary sources.
*Statutory and doctrinal explanations prioritise clarity over jargon.
*Where interpretation is required, it is grounded in established authority.

Independence

The journal is editorially independent.
No external party influences the selection, framing, or publication of content.

Tone and Style

*Calm, measured, and precise.
*Accessible without sacrificing rigour.
*Structural rather than sensational.
*Free from unnecessary hedging or academic clutter.

Revisions

Articles may be updated to reflect changes in law or to improve clarity.
Substantive revisions are noted at the end of the piece.

Copyright

All content is the intellectual property of the author.
Reproduction without permission is prohibited.

Information

Let's Work Together

If you’d like to connect, collaborate, or discuss the themes explored in my work, you can reach me through the form below.

When you click submit, you are agreeing that all the information you have provided in the form can be used to contact you.

Business Information

Menara Aspen Advisory Journal ISSN 2979-1723Registered in England United KingdomRegistered Office: 2 City Road London EC1V 2NXCompany Registration Number: 16986240ORCID https://orcid.org/0009-0008-4538-3259Email: [email protected]

Subscribe

Please complete and submit the form below to subscribe to this journal.By clicking submit, you agree that the information you provide can be used to contact you.You may unsubscribe at any time by sending an email to '[email protected]' and stating that you wish to be removed from the subscription list.

Subscribers receive occasional reflections connected to my ongoing legal research. I write only when there is something considered to share.

Journal

ANALYSES

Menara Aspen Advisory Journal ISSN 2979-1723

Reliance and Context: The Pillars of Misrepresentation

Press Cmd + F (Mac) or Ctrl + F (Win) to find keywords.

Article No: eMAAJ7cl
Category: cl (contract law)
Published: 1st March 2025
Author: Elaine Obika

Abstract

This article argues that misrepresentation is not a mechanical checklist of elements but a relational doctrine structured around two foundational pillars: context and reliance. Context determines whether a representation exists and whether it is directed at the claimant, anchoring the inquiry in the circumstances in which the statement is made. Reliance determines whether that representation actually shaped the claimant’s decision, ensuring that liability arises only where the claimant’s autonomy and decision‑making have been affected. Tracing 160 years of case law, the article identifies three phases in the evolution of reliance: early recognition of awareness and causal influence; the development of responsibility‑based and relational reasoning; and the modern demand for evidential precision, particularly in sophisticated financial settings. Together, these developments show that reliance functions not merely as an element but as a causal, evidential, and relational filter that keeps the doctrine principled and rooted in consent rather than correctness.

Keywords

Misrepresentation; Reliance; Context; Assumption of Responsibility; Causation; Financial Markets; Doctrinal Development; Contract Law.

Introduction

[p1] Misrepresentation isn’t a check list of elements. The cases reveal a deeper structure. Two forces determine whether liability arises: context, which tells us whether a representation exists and is addressed to the claimant, and reliance, which tells us whether that representation actually shaped the claimant’s decision. These are the pillars that keep the doctrine relational, principled, and anchored to consent rather than correctness. [1]

[p2] Context: How Representations Come Into BeingContext determines whether the representor has assumed responsibility for influencing the claimant’s decision. Courts look beyond literal communication and examine the relational setting: statements intended to be passed on (Pilmore v Hood) [2], statements made to a class (Clef Aquitaine), [3] and implied assurances arising from the structure of a transaction, as seen in modern financial‑market cases like Leeds[4] and Loreley. [5] This is why English law does not require direct communication. The limit is relational: the question is whether the representor was speaking into the claimant’s decision‑making space.

[p3] Reliance: How Representations Acquire Legal ForceOnce a representation exists, reliance determines whether it has legal effect. The claimant must have been subjectively aware of the representation (Horsfall) [6] and it must have played a real, substantial part in their decision (Edgington v Fitzmaurice). [7] Full comprehension is not required; awareness is enough. Reliance is the causal filter that ensures misrepresentation protects consent, not the accuracy of all statements made in the world.

[p4] Why These Two Pillars MatterTogether, reliance and context prevent misrepresentation from expanding into a general remedy for misinformation. They ensure liability arises only where the representor assumed informational responsibility in the circumstances and the claimant’s decision was actually shaped by that information. This relational logic runs from Peek v Gurney [8] through to modern cases and continues to define the boundaries of the doctrine today.Seen through this lens, reliance and context are not just two elements among many — they are the structural forces through which the courts navigate the very tensions you identify. Inducement becomes evidentially complex because reliance must be shown in a subjective, fact‑sensitive way. The volatility around “fact” is mediated by context, which determines whether a statement carries representational weight at all. And the friction between contractual estoppel and section 3 of the Misrepresentation Act is, at its core, a struggle over who should bear informational responsibility in a given relational setting.In the end, the challenge is not any single element in isolation. It is how the courts adjust these elements — especially reliance and context — to balance corrective justice with contractual autonomy while keeping the doctrine coherent. These two pillars are where that balancing act actually happens.A historical chronology of reliance in English misrepresentation law becomes most useful when it traces how the courts have progressively tightened, clarified, and conceptualised what it means to “rely” on a representation. What emerges is a doctrinal arc: from early, almost mechanical inducement to a modern, highly relational, context‑sensitive model.Below is a structured, chronological map of the key cases and turning points, with each stage showing how the courts refined the idea of reliance.

[p5] Early Foundations (19th Century): Awareness and Causation Begin to Take ShapeHorsfall v Thomas (1862) 1 H&C 90 [8]The earliest clear articulation: no awareness, no reliance. The claimant bought a gun with a concealed defect but had never seen the misrepresentation. The court held that inducement requires subjective awareness. This becomes the bedrock principle.Redgrave v Hurd (1881) 20 Ch D 1 [9]A claimant who could have discovered the truth but did not is still treated as having relied. The court emphasised that reliance is presumed where a material representation is made, unless the representor proves otherwise. This shifts the burden and strengthens the claimant’s position.Smith v Chadwick (1884) 9 App Cas 187 [10]Introduces the idea that reliance must be on a material representation — one that would influence a reasonable person. This begins the interplay between subjective reliance and objective materiality.

[p6] Late 19th to Early 20th Century: The Causal Threshold ClarifiesPeek v Gurney (1873) LR 6 HL 877 [11]Although often cited for representational scope, it also reinforces reliance’s relational nature: only those to whom the representation was addressed can rely. This ties reliance to context for the first time.Edgington v Fitzmaurice (1885) 29 Ch D 459 [12]A landmark case: reliance need not be the sole cause — only a real and substantial cause. The claimant relied partly on the misrepresentation and partly on his own assumptions. The court held this was enough. This becomes the modern causal test.

[p7] Late 20th Century: Reliance Becomes More Evidentially DemandingHoward Marine & Dredging Co Ltd v Ogden & Sons (Excavations) Ltd (1978) QB 574 [14]The court emphasises that reliance must be reasonable in negligent misrepresentation, but not in fraudulent misrepresentation. This introduces a bifurcation: the nature of the misrepresentation affects the reliance inquiry.JEB Fasteners v Marks Bloom (1983) 1 All ER 583 [15]The claimant must show reliance on the representation itself, not merely on the decision to enter the transaction. This tightens the causal link.

[p8] 21st Century: Reliance in Complex, Modern TransactionsRaiffeisen Zentralbank Osterreich AG v Royal Bank of Scotland (2010) EWHC 1392 (Comm) [16]In sophisticated financial contexts, reliance must be shown with precision. Courts scrutinise whether the claimant actually relied on the representation or on their own due diligence.Leeds City Council & Ors v Barclays Bank Plc (2021) EWHC 363 (Comm)[17]A major modern development. The court held that an assumption that a representation is true is not enough to prove reliance. The claimant must show that the representation played a real part in their decision. This raises the evidential bar.Allianz Funds Multi-Strategy Trust v Barclays Plc [2024] EWHC 2710 (Ch) [18]Although a statutory case under s 90A FSMA, it reinforces the same principle: passive investors who do not engage with the representation cannot rely. Reliance remains subjective, decision‑specific, and relational.

[p9] The Doctrinal Arc: What the Chronology ShowsAcross 160 years, reliance has evolved through three major phases:Phase 1: Awareness and causation — early cases establish that the claimant must know of the representation and be influenced by it.Phase 2: Responsibility and relationality — reliance becomes tied to the representor’s assumption of responsibility and the context in which the statement is made.Phase 3: Evidential precision — modern cases demand clear proof that the representation actually shaped the claimant’s decision, especially in complex financial markets.The result is a doctrine where reliance is not merely an element but a causal, evidential, and relational filter that determines when misrepresentation truly bites.

Conclusion

[p10] This article posits that the doctrine of misrepresentation is sustained by the symbiotic nexus of reliance and context – the two indispensable pillars of the cause of action. Reliance is not merely an element but an expression and indication of the cause of a decision and outcome, the evidential basis and relational filter that determines the legitimacy of a misrepresentation claim. Additionally, the context in which a transaction occurs, lays the foundation for the bargaining power of the parties and the subjective lens through which the veracity of the representation is weighed against the state and form of the subject matter being deliberated. [19] Ergo, the interconnection between reliance and context serves as the ultimate crucible for misrepresentation. Their synergistic interplay is a sophisticated gatekeeping mechanism, ensuring that the law only intervenes when a false reality has materially subverted a claimant’s decision-making process. Context determining the validity, reliance the impact. The court uses an objective standard to ask, “Was it reasonable for someone in this context to rely on that statement?” The claimant’s belief must be weighed against the court’s objective plausibility of the representation. The resultant is that not all subjective whims are afforded protection by the law. Only those that remain judicially cognisable within the situational landscape of the transaction are bestowed legal redress. [20]

References

[1] Ewan McKendrick Contract Law: Texts, Cases and Materials (Tenth edition, Oxford University Press 2022).[2] Pilmore v Hood (1838)132 ER 1042.[3]Clef Aquitaine Sarl v Laporte Materials (Barrow) Ltd [2001] QB 488.[4]Leeds City Council & Ors v Barclays Bank plc[2021] EWHC 363 (Comm).[5]Loreley Financing (Jersey) No 30 Ltd v Credit Suisse Securities (Europe) Ltd [2023] EWHC 2759 (Comm).[6] Horsfall v Thomas [1862] 1 H&C 90.[7] Edgington v Fitzmaurice (1885) 29 Ch D 459.[8]Peek v Gurney (1873) LR 6 HL 377.[9]Horsfall v Thomas (1862) 1 H&C 90.[10] Redgrave v Hurd (1881) 20 Ch D 1.[11] Smith v Chadwick (1884) 9 App Cas 187.[12]Edgington v Fitzmaurice(1885) 29 Ch D 459.[13] Hedley Byrne v Heller (1964) AC 465.[14] Howard Marine & Dredging Co Ltd v Ogden & Sons (Excavations) Ltd(1978) QB 574.[15] JEB Fasteners v Marks Bloom (1983) 1 All ER 583.[16] Raifaisen Zentralbank Osterreich AG v Royal Bank of Scotland (2010) EWHC 1392 (Comm).[17] Leeds City Council & Ors v Barclays Bank Plc (2021) EWHC 363 (Comm).[18]Allianz Funds Multi-Strategy Trust v Barclays Plc [2024] EWHC 2710 (Ch).[19] Bisset v Wilkinson [1927] AC 177 Privy Council (Lord Merrivale).[20] Ewan McKendrick Contract Law: Texts, Cases and Materials (Tenth edition, Oxford University Press 2022) 567.

BIBLIOGRAPHY

Primary sources

CasesAllianz Funds Multi-Strategy Trust v Barclays Plc [2024] EWHC 2710 (Ch)Bisset v Wilkinson [1927] AC 177 Privy Council (Lord Merrivale).Clef Aquitaine Sarl v Laporte Materials (Barrow) Ltd [2001] QB 488Edgington v Fitzmaurice (1885) 29 Ch D 459Hedley Byrne v Heller (1964) AC 465Horsfall v Thomas [1862] 1 H&C 90Howard Marine & Dredging Co Ltd v Ogden & Sons (Excavations) Ltd (1978) QB 574JEB Fasteners v Marks Bloom (1983) 1 All ER 583Leeds City Council v Barclays Bank plc [2021] EWHC 363 (Comm)Loreley Financing (Jersey) No 30 Ltd v Credit Suisse Securities (Europe) Ltd [2023] EWHC 2759 (Comm)Peek v Gurney (1873) LR 6 HL 377Pilmore v Hood (1838)132 ER 1042Raifaisen Zentralbank Osterreich AG v Royal Bank of Scotland (2010) EWHC 1392 (Comm)Redgrave v Hurd (1881) 20 Ch D 1Smith v Chadwick (1884) 9 App Cas 187

Secondary Sources

McKendrick E Contract Law: Texts, Cases and Materials (Tenth edition, Oxford University Press 2022)Rob Stokes Commercial Law: Textbook Series (Sweet & Maxwell 2022)

Cite this work (OSCOLA)
Elaine Obika, 'Reliance and Context: The Pillars of Misrepresentation' (2025) Volume 3 Issue 1 Menara Aspen Advisory Journal eMAAJ7cl [pinpoint] <https://maajana1.carrd.co/#randc> accessed [Day Month Year].'

Published by Menara Aspen Advisory London England United Kingdom.
MENARA ASPEN ADVISORY LTD – AUTHORED WORK NOT FOR REPRODUCTION OR DISTRIBUTION

Menara Aspen Advisory Journal ISSN 2979-1723

Freedom of Speech: An analysis of the Evidentiary Tensions

Press Cmd + F (Mac) or Ctrl + F (Win) to find keywords.

Article No: eMAAJ9hr
Category: hr (human rights)
Published: 25th September 2025
Author: Chiebuniem Okwuosa

Abstract

This article examines the evidentiary tensions at the heart of freedom of expression by challenging the familiar but misleading idea that “words will never hurt me.” Drawing on lived experience rather than formal studies, the analysis shows that speech can inflict harm ranging from mild discomfort to profound psychological distress, particularly for individuals already experiencing acute mental health vulnerability. The article argues that the moral and legal evaluation of offensive speech cannot be reduced to a binary of freedom versus harm; instead, it requires a contextual assessment of purpose, sensitivity, and foreseeable impact. The conclusion proposes a balancing framework in which the potential for hurt must be weighed against the speaker’s aim: where the intention is to harm, speech loses its justificatory foundation, but even well‑intentioned speech may be impermissible if the likely harm grossly outweighs the potential benefit. Against this backdrop, the article considers whether freedom of expression under Article 10(2) should be understood as a lived, relational right shaped by context and responsibility, rather than as an abstract ideological construct detached from its real‑world consequences.

Keywords

Freedom of Expression; Article 10 ECHR; Harm Principle; Offensive Speech; Mental Health; Evidentiary Standards; Proportionality; Rights in Context.

Introduction

[p1] “Sticks and stones may break my bones, but words will never hurt me.” It’s baffling that a blatantly incorrect phrase could become so widely known. The evidence against this doesn’t need to be read in a book or concluded by a peer-reviewed scientific study. We’d have to look no further than our very own memories. Almost every person has memories of words that cut us deep, arguments and insults that we will never forget. Offensive words can have a variety of negative effects, depending on the person. Some may feel mild discomfort. For others who are experiencing a mental health crisis, harsh words may be the straw that breaks the camel’s back, and they could slip deeper into mental health issues as a result. So perhaps it might be sensible to always refrain from saying anything offensive, since it could, unknowingly cause irreparable damage to a person’s self-esteem or mental health?[p2] However, that train of thought is swerving far into one extreme situation, and this question requires delving into diverse situations to find the real answer. The rebuttal to that proposal is this: what is considered offensive? If you were to ask 100 different people, you’d likely get 100 different answers. There are some who wouldn’t falter at the harshest of insults, and others who would feel stung when given gentle constructive criticism. Of course, there are some things that are almost universally considered disrespectful, for example, using slurs. But everyday conversations are full of grey areas, the possibility of words being miscommunicated or misunderstood. Therefore, the proposal can’t be fully adhered to, since that would require everyone to be mind readers. We would need to know the details of every trauma that might cause obscure sore points that are out of the question for discussion. Considering only what it means to be offensive and the effects of the hurtful words is certainly not enough to answer the question.[p3] This crucial third dimension to be considered is the purpose of offensive words. If the purpose of the words is to help the person, then this changes everything. This brings us back to the point mentioned earlier. Some people are sensitive and feel offended upon hearing constructive criticism. Does this mean that we should all refrain from giving it to others? How would we grow and develop if not for it? The person may become angry and ruminate, but upon further reflection they would see the truth (assuming the criticism was sound). Then they would alter that aspect of themselves and move on as an improved person. How would the person better themselves if they were left in the confines of their limited self perception out of fear of causing offence? It may not be comfortable, but meaningful growth rarely is.[p4] This being said, we can’t completely disregard the possibility of harm in our attempt to be helpful to other people. Once again, drawing from a prior example, some people have severe mental health issues and could even be battling suicidal thoughts. If you know that the person is seriously struggling and extremely sensitive, you may not have the right to say anything that could hurt or offend them, even in good faith, since this could cause great distress.[p5] We can’t consider one factor without taking into account the others. The conclusion is clear. The possibility of hurt, and the extent of it must be carefully weighed against the purpose of the offensive words. If the aim is to cause harm, the person has no right to speak. If the aim is to help, the person must still consider whether the hurt would outweigh the help so heavily that it would be better to not say anything at all.How should we understand freedom of expression in light of the constraints imposed by article 10(2) – as a lived right or an ideological construct?

Cite this work (OSCOLA)
Chiebuniem Okwuosa, 'Freedom of Speech' (2025) Volume 3 Issue 2 Menara Aspen Advisory Journal eMAAJ9hr [pinpoint] <https://maajana1.carrd.co/#freedomofspeech> accessed [Day Month Year].'

Published by Menara Aspen Advisory London England United Kingdom.
MENARA ASPEN ADVISORY LTD – AUTHORED WORK NOT FOR REPRODUCTION OR DISTRIBUTION

Menara Aspen Advisory Journal ISSN 2979-1723

Reconceptualizing the Law of Wills: An Analysis of the Law Commission’s Reform Proposals

Press Cmd + F (Mac) or Ctrl + F (Win) to find keywords.

Article No: eMAAJ15wea
Category: wea (wills and administration of estates)
Published: December 2025
Author: Elaine Obika

Abstract

This article examines the Law Commission’s recent proposals for reforming the law of wills and argues that they mark a rare moment of genuine transformation in succession law. For the first time in decades, the governing framework is being reassessed not merely for technical coherence but for its capacity to reflect contemporary lives, relationships, and vulnerabilities. The analysis explores the deeper jurisprudential tensions that shape the Commission’s recommendations, including the balance between autonomy and protection, formality and flexibility, and tradition and technological change. The conclusion argues that the proposals collectively signal a shift toward a more modern, intention‑focused approach that seeks to reconcile testamentary freedom with safeguards for the vulnerable. Yet each reform also exposes the delicate equilibrium at the heart of succession law: the need to honour the wishes of the dead while ensuring adequate protection for the living

Keywords

Wills; Law Commission; Succession Law; Testamentary Intention; Autonomy and Protection; Formalities; Reform Proposals; Modernisation of Wills.

INTRODUCTION[p1] The Law Commission’s proposals mark a rare moment of genuine transformation in succession law. For the first time in decades, the framework governing wills is being re‑examined not only for technical coherence but for its ability to reflect modern lives, relationships and vulnerabilities. This analysis explores the Commission’s recommendations through the lens of their deeper jurisprudential tensions — between autonomy and protection, formality and flexibility, tradition and technological change — and considers what a truly contemporary law of wills might require.The Law Commission’s 2017 proposals for reforming the law of wills represent one of the most significant modernisations of succession law in decades. While the current framework has served as the backbone of testamentary practice since the nineteenth century, it has struggled to keep pace with technological change, evolving family structures, and contemporary understandings of autonomy and vulnerability. The Commission’s recommendations attempt to reconcile these tensions by expanding accessibility, strengthening protection, and modernising formalities. This essay examines the key proposals and the jurisprudential questions they raise.[p2] 1. Electronic Wills: Technology Meets Testamentary FormalityThe proposal to recognise electronic wills marks a profound shift in the law’s relationship with technology. The current insistence on paper, ink, and physical signatures reflects a historical concern with fraud and evidential certainty. Yet digital life increasingly demands digital death planning. The challenge lies in balancing accessibility with reliability: can electronic systems adequately safeguard intention, or do they open the door to manipulation? The Commission’s approach suggests cautious optimism, but the tension between innovation and evidential security remains unresolved.[p3] 2. Dispensing Powers: Intention Over FormalityThe introduction of a dispensing power would allow courts to validate wills that fail to meet formal requirements where testamentary intention is clear. This aligns English law with jurisdictions such as Australia and Canada, which already adopt a more flexible approach. The reform raises a fundamental jurisprudential question: how far should the law prioritise intention over formality? While flexibility promotes fairness, it also increases the evidential burden on courts and risks inconsistent outcomes. The proposal reflects a shift toward a more purposive, less rigid conception of testamentary freedom.[p4] 3. Testamentary Capacity: Replacing Banks v GoodfellowReplacing the common law test in Banks v Goodfellow with the Mental Capacity Act 2005 standard represents a modernisation grounded in clinical understanding. The MCA framework is more nuanced, particularly in cases involving neurodivergence or fluctuating capacity. Yet this reform introduces complexity: medicalised assessments may be more accurate, but they also risk over‑professionalising a process historically grounded in lay judgment. The tension between autonomy and clinical scrutiny is central to this proposal.[p5] 4. Lowering the Testamentary Age to 16Lowering the minimum age for making a will from 18 to 16 expands access for younger testators, particularly those with assets or responsibilities. The reform acknowledges that maturity does not always correlate neatly with age. Yet it raises questions about cognitive readiness and the extent to which the law should recognise youthful autonomy in matters of post‑death planning. The proposal reflects a broader trend toward empowering young people while still grappling with the limits of legal capacity.[p6] 5. Rectification: Correcting Errors to Uphold IntentionThe proposal to strengthen rectification powers allows courts to correct clerical or drafting errors that distort a testator’s intention. This enhances fairness and aligns with the principle that form should not defeat substance. However, it also expands judicial discretion, raising concerns about the boundary between interpretation and rewriting. The reform underscores the ongoing struggle to balance certainty with justice.[p7] 6. Gifts to Cohabiting WitnessesRemoving the automatic invalidation of gifts to cohabiting witnesses reflects modern relationship patterns and promotes fairness. The current rule, rooted in Victorian suspicion of undue influence, disproportionately affects unmarried couples. Yet the reform must still grapple with the risk of coercion. The challenge is to protect vulnerable testators without imposing outdated moral assumptions on contemporary relationships.[p8] 7. Revocation by Marriage or Civil PartnershipAbolishing automatic revocation upon marriage or civil partnership marks a decisive break from tradition. Historically, marriage was seen as a transformative event that reset testamentary intention. Today, with diverse family structures and rising rates of remarriage, automatic revocation can produce unintended and unjust outcomes. The reform prioritises autonomy over paternalistic protection, recognising that love should not erase legacy unless expressly intended.[p9] 8. Statutory Guidance on Undue InfluenceClarifying the evidential threshold for undue influence addresses one of the most opaque areas of succession law. The current test is notoriously difficult to satisfy, leaving many vulnerable individuals unprotected. Yet strengthening the doctrine risks undermining autonomy by inviting challenges based on family conflict rather than genuine coercion. The proposal attempts to strike a delicate balance between safeguarding the vulnerable and respecting testamentary freedom.[p10] 9. Simplifying Signing and Witnessing RulesModernising execution formalities aims to reduce technical invalidity while preserving safeguards against fraud. The challenge is to maintain reliability without imposing unnecessary rigidity. Simplification reflects a recognition that the law should facilitate, not obstruct, the expression of testamentary intention.[p11] 10. Support for Will Writing and Access to JusticeEncouraging accessible, affordable will‑writing services addresses a longstanding barrier to effective estate planning. Yet increased access must not come at the cost of quality. The risk of exploitation or poorly drafted wills remains significant, particularly for vulnerable individuals. The reform highlights the tension between democratising legal processes and maintaining professional standards.[p12] 11. Guardianship AppointmentsClarifying the rules for appointing guardians in wills strengthens parental autonomy while ensuring child welfare remains paramount. The reform reflects the need for clearer statutory guidance in an area where emotional, legal, and practical considerations intersect.[p13] 12. Mutual Wills and Binding PromisesAddressing the enforceability of mutual wills seeks to resolve doctrinal uncertainty surrounding promises that bind beyond death. The reform raises philosophical questions about the extent to which love, loyalty, or contract should constrain testamentary freedom.[p14] 13. Donationes Mortis CausaReviewing or abolishing the doctrine of donatio mortis causa acknowledges its status as a historical relic. While the doctrine serves a narrow purpose, its informality sits uneasily within a modern legal system that values clarity and certainty. The reform invites reflection on whether tradition should yield to coherence.[p15] 14. Ademption and Disappearing AssetsClarifying the treatment of assets disposed of before death addresses a common source of confusion. As property becomes increasingly fluid — digital assets, investments, changing portfolios — the law must adapt to ensure that intention is not defeated by the mechanics of asset transformation.[p16] 15. Privileged and Holograph WillsReviewing privileged wills and considering the validity of holograph wills reflects a broader question: should the law continue to make exceptions for danger, informality, or handwriting alone? These proposals test the boundaries between autonomy and evidential reliability.[p17] ConclusionThe Law Commission’s proposals collectively represent a shift toward a more flexible, modern, and intention‑focused law of wills. They seek to reconcile autonomy with protection, simplicity with certainty, and tradition with technological and social change. Yet each reform carries its own jurisprudential tension, revealing the delicate balance at the heart of succession law: the need to honour the wishes of the dead while safeguarding the living.

SOURCES1] Law Commission, Modernising Wills Law (Law Com No 423, 2025) p 287, 10.3.[2] Gillick v West Norfolk and Wisbech AHA [1986] AC 115 (HL).[3] Chris Rattigan-Smith ‘An Overview of the Law Commissions Final Report – Part Four’ 12th June 2025 Will Pack < https://www.willpack.co.uk/an-overview-of-the-law-commissions-final-report-on-wills-part-four/ > accessed 29th October 2025.[4] NSPCC Learning ‘Gillick Competence and Fraser Guidelines’ 5th August 2022 NSPCC < https://learning.nspcc.org.uk/child-protection-system/gillick-competence-fraser-guidelines#skip-to-content > accessed 29th October 2025.[5] NSPCC Learning ‘Gillick Competence and Fraser Guidelines’ 5th August 2022 NSPCC < https://learning.nspcc.org.uk/child-protection-system/gillick-competence-fraser-guidelines#skip-to-content > accessed 29th October 2025.[6] Alex Ruck Keene Mental Capacity Law and Policy ‘Gillick Is Not a Universal Test – An Important Clarification from the Court of Appeal’ 30th July 2025 < https://www.mentalcapacitylawandpolicy.org.uk/gillick-is-not-a-universal-test-an-important-clarification-from-the-court-of-appeal/ > accessed 29th October 2025.[7] Banks v Goodfellow (1870) LR 5 QB 549.[8] Mental Capacity Act 2005 ss 2 - 3.[9] Mental Capacity Act 2005.[10] Henry Pearce and Cheryl Buck ‘Balancing the Autonomy and Protection of Children: Competency Challenges in Data Protection Law’ (2024) Vol 23 Information and Communications Technology Law, 177 <https://www.tandfonline.com/doi/full/10.1080/13600834.2024.2320978?scroll=top&needAccess=true#abstract > accessed 29th October 2025.[11] Amelia Summerton ‘Can Children Make Wills ?A Look at Proposed Reforms to Wills Law’ 7th August 2025 Society of Will Writers < https://www.willwriters.com/blog/can-children-make-wills/ > accessed 29th October 2025.

Cite this work (OSCOLA)
Elaine Obika, 'Reconceptualizing the Law of Wills: An Analysis of the Law Commission’s Reform Proposals' (2025) Volume 3 Issue 8 Menara Aspen Advisory Journal eMAAJ15wea [pinpoint] <https://maajana1.carrd.co/#wills> accessed [Day Month Year].'

Published by Menara Aspen Advisory London England United Kingdom.
MENARA ASPEN ADVISORY LTD – AUTHORED WORK NOT FOR REPRODUCTION OR DISTRIBUTION

Menara Aspen Advisory Journal ISSN 2979-1723

Piercing the Corporate Veil: Illusion, Reality or Alternative Remedy? part 1

Press Cmd + F (Mac) or Ctrl + F (Win) to find keywords.

Article No: eMAAJ1comp
Category: comp (company law)
Published: July 2023
Author: Elaine Obika

Abstract

This article examines the contested doctrine of piercing the corporate veil and questions whether it exists as a coherent principle or merely as a rhetorical device masking the operation of alternative legal mechanisms. Beginning with the reasoning in Prest v Petrodel and VTB Capital, and tracing back to earlier authorities such as Gilford Motor, the analysis explores whether courts genuinely disregard corporate personality or instead rely on established doctrines such as agency, fraud, or statutory liability. The conclusion aligns with the sceptical view advanced by Ottolenghi: where liability is imposed on directors for fraudulent trading or similar misconduct, it is misleading to describe the outcome as veil‑piercing, since the legal basis lies in independent statutory or common law principles. The article argues that much of what is labelled veil‑piercing is better understood as the application of orthodox remedies rather than an exceptional incursion into corporate personality.

Keywords

Corporate Veil; Veil‑Piercing; Prest v Petrodel; VTB Capital; Gilford Motor; Corporate Personality; Fraudulent Trading; Company Law Doctrine.

Part One

Introduction

[p1] The doctrine of piercing the corporate veil remains one of the most contested areas of company law. Despite its dramatic language, courts have repeatedly questioned whether it exists as a coherent principle or merely as a label for outcomes reached through other legal mechanisms. This short analysis examines the reasoning in Prest, VTB, and earlier authorities such as Gilford Motor, exploring whether veil‑piercing is an illusion, a reality, or simply a misdescription of alternative remedies.

Opinions

[p2] In Prest, Lord Walker suggested that “piercing the corporate veil” is not a true doctrine but a label used to describe exceptional situations where liabilities are imposed on controllers despite the separate legal personality established in Salomon. On this view, the courts do not pierce the veil as a matter of principle; rather, they rely on statutory provisions or established common law routes to reach the controller, making veil‑piercing a descriptive convenience rather than a substantive doctrine.[p3] Lord Sumption, also in Prest, argued that earlier cases such as Gilford Motor are better understood through the evasion and concealment principles. Although the injunction against Mr Gilford has often been cited as an example of veil‑piercing, Lord Sumption clarified that the remedy was grounded in equitable principles and could have been granted through tortious analysis. He further emphasised that veil‑piercing should only be considered where no other remedy is available. On this reasoning, it is unlikely that the veil was pierced in Gilford, since an action in tort was already open to the claimant.[p4] Lord Neuberger, in VTB, similarly questioned whether the doctrine has ever been successfully invoked. He noted that the outcome in Gilford would have been the same even if the company had been replaced by Mrs Gilford, echoing the reasoning in Smith v Hancock. His judgment in Prest was directed at the deeper question of whether veil‑piercing exists at all as a freestanding doctrine.

Conclusion

[p5] Ottolenghi supports this sceptical view, arguing that where liability is imposed on directors for fraudulent trading, it is inaccurate to describe the outcome as lifting the veil. Instead, the liability arises from statutory or common law principles independent of corporate personality.

REFERENCES1.Prest v Petrodel Resources Ltd v Others [2013] UKSC 34.2. Prest v Petrodel Resources Ltd v Others [2013] UKSC 34 [31] - [32].3. Mohammed E Khimji v Christopher C Nicholls ‘Piercing the Corporate Veil Reframed as Evasion and Concealment’ (2015) 48 University of British Columbia Law Review 401.4.Prest (n1).5.Gilford Motor Co Ltd v Horne [1933] Ch 935.6.Prest (n1) [29].7.VTB Capital plc v Nuritek International Corp [2013] UKSC 5 [134].8.Prest (n1) [29].9.Charlottoe Kouo ‘Post-Prest Corporate Group Veil Piercing: Alternative Avenues to Justice (20160 4(2) Legal Issues Journal 45.10.Prest (n1) [26].11. VTB (n7).12.Smith v Hancock [1894] 2 Ch 377.13. Prest v Petrodel Resources Ltd v Others [2013] UKSC 34 [80].14. Insolvency Act 1986 s 213.15.Ottolenghi S ‘From Peeping Behind the corporate Veil, to Ignoring it Completely’ (May 1990) vol 53 Modern LawReview 338.

BIBLIOGRAPHY

Primary sources

CasesGilford Motor Co Ltd v Horne [1933] Ch 935Prest v Petrodel Resources Ltd v Others [2013] UKSC 34Smith v Hancock [1894] 2 Ch 377VTB Capital plc v Nuritek International Corp [2013] UKSC 5LegislationInsolvency Act 1986

Secondary Sources

Khimji M E v Nicholls C C ‘Piercing the Corporate Veil Reframed as Evasion and Concealment’ (2015) 48 University of British Columbia Law Review 40Kouo C ‘Post-Prest Corporate Group Veil Piercing: Alternative Avenues to Justice (20160 4(2) Legal Issues Journal 45Ottolenghi S ‘From Peeping Behind the corporate Veil, to Ignoring it Completely’ (May 1990) vol 53 Modern LawReview 338

Cite this work (OSCOLA)
Elaine Obika, 'Piercing the Corporate Veil: Illusion, Reality or Alternative Remedy? part 1 of 2 ' (2023) Volume 1 Issue 1 Menara Aspen Advisory Journal eMAAJ1comp [pinpoint] <https://maajana1.carrd.co/#corporateveilone> accessed [Day Month Year].'

Published by Menara Aspen Advisory London England United Kingdom.
MENARA ASPEN ADVISORY LTD – AUTHORED WORK NOT FOR REPRODUCTION OR DISTRIBUTION

Menara Aspen Advisory Journal ISSN 2979-1723

Piercing the Corporate Veil: Illusion Reality or Alternative Remedy? part 2

Press Cmd + F (Mac) or Ctrl + F (Win) to find keywords.

Article No: eMAAJ3comp
Category: comp (company law)
Published: July 2023
Author: Elaine Obika

Abstract

This second part continues the inquiry into whether “piercing the corporate veil” operates as a genuine doctrine or merely as a rhetorical label obscuring the use of orthodox legal mechanisms. Revisiting Jones v Lipman, Tjaskemolen, and Stone & Rolls, the analysis shows how courts have repeatedly achieved veil‑piercing outcomes through established principles such as constructive trusts, equitable remedies, and attribution, rather than by disregarding corporate personality itself. These cases reinforce the view that the supposed doctrine rarely, if ever, functions independently of these alternative routes. The conclusion argues that veil‑piercing persists more as a metaphor than a meaningful legal principle: its explanatory appeal masks the reality that the decisive work is done elsewhere — in equity, in trusts, in attribution rules, and in statutory exceptions. As such, veil‑piercing is best understood as an illusion sustained by its rhetorical power rather than its doctrinal necessity.

Keywords

Corporate Veil; Veil‑Piercing; Jones v Lipman; Stone & Rolls; Attribution; Equity; Trusts; Company Law Doctrine.

Part Two

[p1] The second part of this analysis continues the examination of whether “piercing the corporate veil” exists as a genuine doctrine or merely as a rhetorical label masking the use of alternative legal mechanisms. By revisiting Jones v Lipman Tjaskemolen, and Stone & Rolls, this section explores how courts have repeatedly achieved veil‑piercing outcomes through trusts, equitable remedies, and attribution principles — raising further doubts about whether the doctrine has ever operated independently of these established routes.[p2] In Jones v Lipman, what Lord Sumption later described as piercing the corporate veil can be more accurately understood as the court granting a specific performance order. The same outcome could have been achieved through the law of trusts, given that Mr Lipman controlled the company and was in a position to procure completion of the contract. On this view, the court did not pierce the veil because no alternative remedy existed; rather, the trust analysis provided a sufficient doctrinal basis. Jones may therefore be better characterised as a trust‑based decision that has been retrospectively labelled as veil‑piercing.[p3] In Prest, Lord Neuberger referred to Tjaskemolen as an example of the lack of coherent principle underpinning veil‑piercing. The case involved an evasion of existing liability, and although the court stated that the veil could be pierced because the defendant retained beneficial ownership despite the transferee company holding legal title, a closer reading suggests that the reasoning is grounded in trust principles. This supports Lord Walker’s view that veil‑piercing is simply a label, particularly given that in Yukong the corporate entity was effectively substituted for a natural person without invoking any true veil‑piercing doctrine.[p4] Halpern similarly critiques the reasoning in Stone & Rolls, arguing that Lord Phillips oscillated between the rule of attribution and veil‑lifting in a way that risks conflating distinct concepts. Maintaining the separation between attribution and veil‑piercing is essential to preserving the integrity of the separate legal entity principle. Halpern concludes that although the correct outcome was reached, the reasoning was tortuous — further evidence of the doctrinal instability surrounding veil‑piercing.

Conclusion

[p5] The long‑standing fascination with piercing the corporate veil rests less on doctrinal substance and more on the dramatic language that has surrounded it for over a century. Although courts have repeatedly invoked the metaphor of “lifting” or “piercing” the veil, a close reading of the authorities reveals that the outcomes in these cases were achieved through established legal mechanisms — trusts, agency, tort, equitable remedies, attribution, or statutory provisions — rather than through any freestanding veil‑piercing doctrine.[p6] Prest exposed this reality with unusual clarity. Lord Sumption’s insistence that veil‑piercing should only be used where no other remedy exists, Lord Walker’s characterisation of the doctrine as a mere label, and Lord Neuberger’s doubt as to whether it has ever been successfully invoked all point to the same conclusion: veil‑piercing is more rhetorical than real. The classic cases — Gilford Motor, Jones v Lipman, Tjaskemolen, Stone & Rolls — can all be explained without resorting to any exceptional judicial power to disregard corporate personality.[p7] The “hullabaloo” surrounding veil‑piercing therefore reflects a doctrinal myth sustained by dramatic terminology rather than consistent legal principle. The courts have never possessed a general discretion to ignore the separate legal entity established in Salomon, and the rare situations in which liability reaches controllers do so through alternative, orthodox routes.[p8] In this light, veil‑piercing is best understood not as a coherent doctrine but as a convenient label applied to outcomes reached by other means. Its continued prominence in academic and judicial discourse reveals more about the allure of the metaphor than about the true structure of company law. The real work is done elsewhere — in equity, in trusts, in attribution, and in statutory exceptions — leaving veil‑piercing as an illusion that persists largely because of its rhetorical power rather than its doctrinal necessity.

SOURCES1.Jones v Lipman [1962] 1 WLR 832.2. Prest v Petrodel Resources Ltd v Others [2013] UKSC 34 [30].3.Susan McLaughlin Unlocking Company Law (Third edition, Routledge 2015) 100.3.Ko Tsun Kiu and Lam Wan Shu ‘Piercing the Corporate Veil? A Critical Analysis on Prest v Petrodel and Others' Vol 5(1+2) No 3 Dundee Student Law Review.4. John Birds and Others Boyle & Birds' Company Law (Ninth edition, Jordan Publishing 2014) 63.5. Prest v Petrodel Resources Ltd v Others [2013] UKSC 34 [26].6. Jones v Lipman [1962] 1 WLR 832.7. Prest v Petrodel Resources Ltd v Others [2013] UKSC 34.8.The Tjaskemolen [1997] CLC 521.9.ibid.10. The Tjaskemolen [1997] CLC 521 [553].11. Prest v Petrodel Resources Ltd v Others [2013] UKSC 34 [31] - [32].12.Yukong Lines Ltd v Rendsburg Investments Corporation and Others (No 2) [1998]1 WLR 294 [308].13. David Halpern ‘Stone & Rolls Ltd v Moore Stephens: An Unnecessary Tangle’ (May 2010) Vol 73 The Modern Law Review 487.14.Stone & Rolls Ltd v Moore Stephens [2009] 1 AC 1391 [139] - [143].15.Ernest Lim ‘Attribution in Company Law’ (September 2014) Vol 77 The Modern Law Review 794.16. David Halpern ‘Stone & Rolls Ltd v Moore Stephens: An Unnecessary Tangle’ (May 2010) Vol 73 The Modern Law Review 487.17.Salomon v Salomon & Co Ltd [1897] AC 22.

BIBLIOGRAPHY

Primary sources

CasesGilford Motor Co Ltd v Horne [1933] Ch 935Prest v Petrodel Resources Ltd v Others [2013] UKSC 34Smith v Hancock [1894] 2 Ch 377VTB Capital plc v Nuritek International Corp [2013] UKSC 5LegislationInsolvency Act 1986

Secondary sourcesKhimji M E v Nicholls C C ‘Piercing the Corporate Veil Reframed as Evasion and Concealment’ (2015) 48 University of British Columbia Law Review 40Kouo C ‘Post-Prest Corporate Group Veil Piercing: Alternative Avenues to Justice (20160 4(2) Legal Issues Journal 45Ottolenghi S ‘From Peeping Behind the corporate Veil, to Ignoring it Completely’ (May 1990) vol 53 Modern LawReview 338

Cite this work (OSCOLA)
Elaine Obika, 'Piercing the Corporate Veil: Illusion, Reality or Alternative Remedy? part 2 of 2 ' (2023) Volume 1 Issue 3 Menara Aspen Advisory Journal eMAAJ3comp [pinpoint] <https://maajana1.carrd.co/#corporateveiltwo> accessed [Day Month Year].'

Published by Menara Aspen Advisory London England United Kingdom.
MENARA ASPEN ADVISORY LTD – AUTHORED WORK NOT FOR REPRODUCTION OR DISTRIBUTION

Menara Aspen Advisory Journal ISSN 2979-1723

Legal Pluralism and the Problem of Overriding Mandatory Rules

Press Cmd + F (Mac) or Ctrl + F (Win) to find keywords.

Article No: eMAAJ12itl
Category: itl (international trade law)
Published: October 2025
Author: Elaine Obika

Abstract

This article examines the disruptive role of overriding mandatory rules (OMR) within the pluralistic landscape of cross‑border contracting. As commercial relationships grow more complex, the tension between party autonomy and the mandatory rules of competing jurisdictions becomes increasingly acute. OMR sit at the centre of this tension: powerful, unpredictable, and capable of reshaping contractual outcomes irrespective of the parties’ chosen law. Drawing on contemporary scholarship, the analysis explores how OMR challenge legal certainty, harmonisation, and the practical functioning of international commerce. The conclusion highlights Kim’s argument that OMR create significant difficulties across contracts governed by German, Swiss, and English law, particularly in the context of EU and US trade embargoes and secondary boycotts. The application of third‑state OMR remains especially contentious, requiring courts to interpret unfamiliar laws and cultural norms in ways that undermine autonomy and coherence. The article ultimately suggests that party autonomy, though foundational, is not absolute.

Keywords

Overriding Mandatory Rules; Private International Law; Party Autonomy; Legal Pluralism; Conflict of Laws; Trade Embargoes; Third‑State OMR; Harmonisation.

INTRODUCTION

[p1] Cross‑border contracting has always operated in the shadow of legal pluralism, but the rise of increasingly complex commercial relationships has sharpened the tension between party autonomy and the mandatory rules of competing jurisdictions. Overriding mandatory rules (hereinafter OMR) sit at the centre of this tension: powerful, unpredictable, and capable of reshaping contractual outcomes regardless of the parties’ intentions. This short analysis examines the disruptive role of OMR in private international law, drawing on contemporary scholarship to illuminate the challenges they pose for legal certainty, harmonisation and the practical realities of international commerce.[p2] Legal pluralism inevitably produces inharmonious outcomes when a single contractual act is exposed to multiple jurisdictions. In the absence of a governing law clause or a specified jurisdiction — or where parties opt out of instruments such as the CISG — the forum will default to its private international law rules to resolve disputes. Unsophisticated parties may fail to include an appropriate choice‑of‑law clause, or their negotiations may be perfunctory, leaving them vulnerable to the application of unfamiliar legal systems. The difficulty is that even where a governing law is chosen, that law may contain overriding mandatory rules (OMR) capable of invalidating contractual provisions partially or entirely, thereby escalating legal costs and undermining commercial expectations. By contrast, sophisticated parties are more likely to anticipate the legal acceptability of clauses across jurisdictions and draft accordingly, reducing the risk of costly surprises.[p3] Lorenzo argues that where a governing law clause exists, the substantive contract law of that jurisdiction should apply supplementarily or interpretatively to preserve party autonomy. Even in the absence of such a clause, he contends that clarification is needed to illuminate the relationship between the substantive contract and conflict‑of‑laws autonomy. In his view, the governing law should be applied restrictively, and only where imperative.

CONCLUSION

[p4] Kim highlights that OMR pose significant challenges across various international contract types, including those governed by German, Swiss and English law. Examples include EU and US trade embargoes, particularly secondary boycotts. The application of third‑state OMR is especially contentious, with no coherent doctrinal solution. Kim further argues that requiring the forum to interpret the laws and cultural norms of multiple states — alongside their OMR — undermines party autonomy, legal certainty and harmonisation.This suggests that party autonomy is not absolute.

SOURCES[1] Carreño Bernal EG ,‘Harmonization of Cross-Border Contract law: Legal Solutions In A Globalised World’ (2024) Vol 2 Journal of Policy and Society 1, 2 < https://ojs.acad-pub.com/index.php/JPS/article/view/2273 > accessed 29th June 2025.[2] Redfern and Hunter Law and Practice of International Commercial Arbitration (Sweet & Maxwell, 2004) para 3.12.[3] Enka Insaat Ve Sanayi As v OOO Insurance Company Chubb 193 Con LR 87 [108]-[109], [177] (Lord Hamblen and Lord Legatt).[4] Goldring J, ‘Unification and Harmonisation of the Rules of Law’ (1978) Vol 9 Federal Law Review 284-325[5] Martin Davies, David V Snyder International Transactions in Goods: Global Sales in Comparative Context (Oxford University Press 2014), 40.[6] Gilles Cuniberti, ‘Is the CISG Benefiting Anybody?’ (2021) Vol 39 Vanderbilt Journal of Transnational Law 1511, 1521 < https://scholarship.law.vanderbilt.edu/vjtl/vol39/iss5/11/ > accessed 1st July 2025[7] Rome Convention Article 7.[8] Rome I Regulations, Article 9(3).[9] CISG Article 7.[10] Gilles Cuniberti, ‘Is the CISG Benefiting Anybody?’ (2021) Vol 39 Vanderbilt Journal of Transnational Law1511, 1522-1523 < https://scholarship.law.vanderbilt.edu/vjtl/vol39/iss5/11/ > accessed 1st July 2025[11] Sixto Sánchez Lorenzo, ‘Choice of Law and Overriding Mandatory Rules in International Contracts After Rome I’ (2010) Vol 12 Swiss Institute of Comparative Law 67, 68-[12] Johannes Ungerer, ‘Explicit Legislative Characterisation of Overriding Mandatory Provisions in EU Directives: Seeking for but Struggling to Achieve Legal Certainty’ (2021) Vol 17 Journal of Private International Law 399, 408-413.[13] Min Kyung Kim Comparative Research on the Treatment of Overriding Mandatory Rules of A Third Country (Hart Publishing 2025) pp 96 and 99.[14] Private International Law Act (PILA) Article 19.[15] Min Kyung Kim Comparative Research on the Treatment of Overriding Mandatory Rules of A Third Country (Hart Publishing 2025) pp 124-125.[16] Rome I Regulations Article 9.[17] Min Kyung Kim Comparative Research on the Treatment of Overriding Mandatory Rules of A Third Country (Hart Publishing 2025) pp 108-109.[18] Min Kyung Kim Comparative Research on the Treatment of Overriding Mandatory Rules of A Third Country (Hart Publishing 2025) pp 86 -91.[19] Ivana Kunda Internationally Mandatory Rules of a Third Country in the European Contracts Conflict of Laws: The Rome Convention and the Proposed Rome I Regulation (Rijeka) 332.[20] Rome I Article 3.[21] Rome II Article 14.[22] Andrew Legg and Daniel Hart, ‘Choice of Law and Forum Selection: Impact of Rome I and Rome II’ [2010] Mayer Brown International LLP Thomson Reuters Practical Law <https://uk.practicallaw.thomsonreuters.com/6-501-4353?comp=pluk&transitionType=Default&contextData=(sc.Default)&firstPage=true&OWSessionId=04a814a7c32a46239eb232230e608df5&skipAnonymous=true > accessed 4th July 2025.[23]Reinhard Elger, 'Overriding Mandatory Provisions' Max EuP2012 <https://max-eup2012.mpipriv.de/index.php/OverridingMandatoryProvisions#:~:text=The%20term%20overriding%20mandatory%20provisions,the%20proper%20law%20of%20contract.> accessed 3rd April 2026.

Cite this work (OSCOLA)
Elaine Obika, 'Legal Pluralism and the Problem of Overriding Mandatory Rules' (2025) Volume 3 Issue 5 Menara Aspen Advisory Journal eMAAJ12itl [pinpoint] <https://maajana1.carrd.co/#legalpluralism> accessed [Day Month Year].'

Published by Menara Aspen Advisory London England United Kingdom.
MENARA ASPEN ADVISORY LTD – AUTHORED WORK NOT FOR REPRODUCTION OR DISTRIBUTION

Menara Aspen Advisory Journal ISSN 2979-1723

Separation of Powers: Political Rhetoric, Judicial Scrutiny, and the Line Between Constitutional Clash and Personal Vendetta

Press Cmd + F (Mac) or Ctrl + F (Win) to find keywords.

Article No: eMAAJ17const
Category: const (constitutional law)
Published: 14th January 2026
Author: Elaine Obika

Abstract

This commentary reflects on recent political attacks on lawyers and argues that such criticisms reveal deeper constitutional tensions rather than mere personal grievances. Within the UK’s separation of powers framework, judicial scrutiny is not a political intrusion but an essential mechanism for holding the executive to account. The rhetoric of “activist lawyers” and similar labels blurs the distinction between representation and endorsement, enabling political actors to frame legal challenge as illegitimate obstruction. The analysis shows how these narratives function strategically: as scapegoating, as a means of portraying the executive as aligned with “the people,” and as a way of casting legal expertise as ideological. These dynamics are intensified by gaps in constitutional literacy and the adversarial nature of political debate. Ultimately, the resilience of the rule of law depends less on the tone of political commentary and more on whether institutional actors continue to respect and comply with judicial decisions. The question, therefore, is not whether attacks on lawyers are personal or political, but how they reflect the ongoing negotiation between democratic will, legal constraint, and constitutional accountability.

Keywords

Separation of Powers; Judicial Review; Rule of Law; Political Rhetoric; Activist Lawyers; Constitutional Accountability; Legal Profession; Executive–Judiciary Relations.

A brief reflection on recent political commentary about lawyers and the constitutional role of judicial scrutiny.

[p1] Attacks on lawyers often reveal deeper constitutional tensions rather than simple disagreements about professional conduct. Within the UK’s separation of powers framework, the executive is responsible for governing, the legislature for making law, and the judiciary for interpreting and applying it. Judicial review and robust legal argument are therefore not political intrusions but essential mechanisms through which the judiciary scrutinises executive action.[p2] If courts refuse to “block the will of the people,” they inevitably end up blocking the will of politicians — and that is precisely the safeguard the rule of law requires. Labels such as “activist lawyer” gain rhetorical force not because activism is inherently negative, but because the term is deployed to imply bias, partisanship, or illegitimacy, blurring the distinction between representation and endorsement.[p3] In a climate where constitutional norms are treated by some as optional, and where societal and political standards shift rapidly, it is unsurprising that legal challenge becomes a site of contest. Much of the friction arises from a mixture of personal and political agendas, gaps in public understanding, and differing conceptions of how institutional change should occur.These dynamics reflect not a crisis of law, but the ongoing negotiation between democratic will, institutional restraint, and the evolving expectations placed upon the legal profession.[p4] Political attacks on lawyers also serve multiple strategic functions within public discourse. Such criticisms can operate as a form of scapegoating, allowing governments to attribute policy difficulties or administrative failures to unelected judges or to lawyers characterised as obstructive. They simultaneously reinforce narratives that position the executive as aligned with “the people” against an alleged metropolitan or professional elite, thereby framing judicial oversight as a barrier to democratic legitimacy.[p5] References to the professional backgrounds of political opponents — including prior work in human rights or prosecutorial roles can be used rhetorically to signal partisanship or to cast legal expertise as ideological. These techniques mirror familiar features of adversarial legal practice, where parties present selective characterisations to advance their position and influence how decision makers perceive the issues before them.[p6] In political contexts, however, such portrayals can have broader consequences, shaping public understanding of legal institutions and the individuals who operate within them. The resulting tensions highlight the delicate balance between political accountability, legal constraint, and the contested narratives through which each branch of the state seeks to justify its role.[p7] A further perspective emphasises that inflammatory or exaggerated political remarks are not confined to one side of the political spectrum but arise from the adversarial nature of parliamentary debate itself. The deeper concern, however, lies in a widespread lack of constitutional literacy among MPs regarding the function and significance of the rule of law. From this standpoint, the critical question is not whether politicians express dissatisfaction with judicial decisions, but whether the legal framework continues to be respected in practice.

[p8] Access to political power inevitably creates opportunities to test, stretch, or even disregard constitutional boundaries, and—as in any sphere of society—there will always be actors inclined to probe the limits of legal restraint.[p9] The resilience of the rule of law therefore depends less on the tone of political commentary and more on whether institutional actors ultimately comply with judicial outcomes, even when those outcomes are politically inconvenient.

Conclusion

In closing, the question is whether the attack on lawyers is a constitutional clash or a personal vendetta?

The issue is not the insult, but what it exposes. Political attacks on lawyers operate on two levels at once: the personal and the constitutional. On the surface, they may look like individual grievances, partisan frustrations, or attempts to discredit particular professionals. But beneath that veneer lies a deeper struggle over the boundaries of institutional power. When politicians frame legal scrutiny as obstruction, or judicial oversight as elitism, they are not merely criticising lawyers — they are contesting the very mechanisms that restrain executive authority. What appears to be a personal vendetta often functions as a constitutional manoeuvre, testing how far political actors can push against the rule of law without openly repudiating it. The real significance of these attacks, therefore, lies not in their rhetoric but in what they reveal about the ongoing negotiation between democratic will, legal constraint, and the fragile norms that hold the constitutional order together.

Cite this work (OSCOLA)
Elaine Obika, 'Separation of Powers' (2026) Volume 4 Issue 2 Menara Aspen Advisory Journal eMAAJ17const [pinpoint] <https://maajana1.carrd.co/#separationofpowers> accessed [Day Month Year].'

Published by Menara Aspen Advisory London England United Kingdom.
MENARA ASPEN ADVISORY LTD – AUTHORED WORK NOT FOR REPRODUCTION OR DISTRIBUTION

Menara Aspen Advisory Journal ISSN 2979-1723

When Directors Keep Trading Through Financial Distress: Duties, Risks, and the Liquidator’s Lens

Press Cmd + F (Mac) or Ctrl + F (Win) to find keywords.

Article No: eMAAJ5comp
Category: comp (company law)
Published: August 2024
Author: Elaine Obika

Abstract

This case study examines the legal and practical risks directors face when continuing to trade through periods of financial distress, focusing on the interplay between subjective belief, statutory duties, and the liquidator’s retrospective scrutiny. When a company approaches insolvency, directors must not only act in what they honestly believe to be the company’s best interests but must also demonstrate reasonable care, skill, and diligence. Drawing on Re Smith v Fawcett Ltd and Regentcrest plc v Cohen, the analysis highlights the centrality of the director’s actual state of mind, while recognising that significant harm to the company makes good‑faith assertions harder to sustain. The scenario illustrates how informal legal advice, record‑keeping, and decision‑making processes become critical evidence in assessing potential breaches of duty, misfeasance, wrongful trading, or fraudulent trading under the Insolvency Act 1986. The conclusion emphasises that while honest belief may shield directors from liability, it must be supported by careful, well‑documented conduct; where continued trading worsens the company’s position, a liquidator may pursue personal contribution orders. Ultimately, the case underscores the fine line directors walk when navigating financial decline and the importance of aligning subjective belief with objective diligence.

Keywords

Directors’ Duties; Insolvency Act 1986; Wrongful Trading; Fraudulent Trading; Subjective Belief; Re Smith v Fawcett; Regentcrest v Cohen; Liquidator’s Powers; Financial Distress.

Introduction

[p1] Directors owe statutory duties under the Companies Act 2006, including the obligation to act in the company’s best interests and to exercise reasonable care, skill, and diligence. These duties apply to all directors — de jure, de facto, shadow, executive, and non‑executive alike.When a company approaches insolvency, the Insolvency Act 1986 introduces further responsibilities. The key question becomes whether the directors honestly believed that continuing to trade was in the company’s interests. Courts apply a subjective test: what did the director actually believe at the time? Cases such as Re Smith v Fawcett Ltd and Regentcrest plc v Cohen emphasise that the court does not substitute its own view for the directors, though directors who cause significant harm face a tougher task proving good faith.In this scenario, the directors experienced cash‑flow problems seven months before liquidation and sought informal legal advice. They were told to keep detailed records and to cease trading once they believed liquidation was likely. Whether they followed that advice is crucial. If records show decisions were made for the benefit of the company as a separate legal entity, their honest belief may be defensible. If not, they risk allegations of breach of duty, misfeasance, wrongful trading, or even fraudulent trading.[p2] A director’s belief must also be supported by reasonable conduct. The law expects directors to act with care and diligence, and those with specialist expertise are held to a higher standard. If the directors genuinely believed the company would recover — and there is no evidence to the contrary — that belief may protect them. But if their actions worsened the company’s position, liability becomes more likely.The Companies Act 2006 s 171-177 details the generic obligations that the director of a company has towards the company. The duties are owed by de jure, de facto, shadow executive and non-executive directors.[p3] In Re Smith v Fawcett Ltd the court stated that a director must act ‘bona fide’ in what they consider and not what the court may consider the best interests of the company. In Regentcrest plc v Cohen, Parker J explained, and I summarise that the issue is as to the director’s state of mind, however, where it is evident that the director's actions led to significant damage to the company, the director will have a more difficult task proving good intentions but this does not diminish the subjective nature of the test.In our scenario, in assessing the subjective belief of the directors that their actions were in the interests of the company, the court would consider the decisions that the directors took in light of the prevailing factors present around the time that the decisions were taken.The directors began to experience cash flow problems and sought informal legal advice.They were told by a lawyer (Eddie - a brother to one of the directors) -informally- to keep a record of all their decisions from that point onwards and stop trading once they believed that the company might enter liquidation. The company records will need to be checked to see if the advice given was followed.The important factor in any of the decisions taken is whether they were made for the benefit of the members and the company as a separate legal entity If upon checking the records it is found to the contrary, there may have been a breach of director’s duties, misfeasance fraudulent and or wrongful trading.[p4] Legislation provides that a director must exercise reasonable care, skill and diligence. Also, a director owes a common law duty of care not to act negligently in managing the affairs of the company. A higher standard of care is expected where directors are experts in a particular field.[p5] Since the directors held an honest belief that their actions would make the company profitable again, this could be used as a defence if there is no evidence to the contrary. But if there is evidence to the contrary, a claim for fraudulent trading may be brought against the directors. One fraudulent transaction that takes place in a company may be viewed as fraudulent but does not prove intent to commit fraud. For intent to defraud to be made out, actual dishonesty is a necessary ingredient.[p6] The directors of a company may continue to trade during difficult times because they have a genuine belief that the company will resume its buoyancy. If, however, it becomes apparent that the company is unable to pay its debts and the directors have continued to trade in spite of this, a liquidator may be able to bring a claim for wrongful or fraudulent trading against all or some of the directors. This is dependent on the roles that each director has in the company.[p7] A liquidator can apply to the court to obtain a contribution from those who knowingly carried on the business of the company in a fraudulent manner. There must be clear dishonesty and culpability. The liquidator must reveal the director’s knowledge and reasoning based on the actions they took at the time of the events, compare it to the objective standard of an ordinary decent person and show that the director was fraudulent.[p8] In claims brought for wrongful trading, culpability only arises if it can be shown that the continued trading made the company worse off. The directors' defence would be to show that they used every avenue possible to prevent going into insolvent liquidation, being mindful of not becoming indebted to their creditors.[p9] It is tenable for a liquidator to bring two claims, one for wrongful trading and one for fraudulent trading in the same case. Evidencing dishonesty is not required.[p10] The Insolvency Act provides the court with unrestrained powers to order the guilty directors to contribute to the company in liquidation. Section 214 is not intended to be punitive but compensatory. However, the courts can decide to be more severe in their judgement when directors deserve it and each case will turn on its facts.

Legal Advice: Formal or Informal

Assumption of responsibility[p12] In Burgess v Lejonvarn the claimant appealed against the decision of a lower court in a case where she (a trained architect) helped and advised her neighbour to complete a garden project. The Court of Appeal, after listing out her contribution to the project, held that she assumed the professional responsibility in the capacity of an architect and project manager.The parties to the case had been friends and neighbours for many years. Lejonvarn believed that she was helping the Burgess’s, but the court found that since she offered her skills over a period of time and while there was no written contract, there was an assumption of responsibility due to the nature of their relationship.In our scenario, it could be argued that a duty of care arose from the special relationship between Eddie and his brother (the lawyer). Eddie would have been trusting of his brother's advice as his brother would have known that he would rely on him, although, unlike our case, the services rendered by Lejonvarn were in return for benefits.[p13] However, in Hedley Byrne & Co Ltd v Heller & Partners Ltd, Lord Reid said that ‘the objective standard of what a reasonable man would have done is applied ... the reasonable man would have three courses open to him knowing that he was trusted or his skill and judgement are being relied on...keep silent or decline to answer....give an answer with a clear qualification that he accepted no responsibility...simply answer the question with no clear qualification...’Eddie’s brother chose the latter and so a duty of care would arise.[p14] In Merrett v Babb (6) the judge stated that where economic loss is caused by negligent misstatement, Henderson v Merret Syndicates Ltd can be substituted for Caparo Industries plc v Dickman.[p15] Dependence is necessary for Henderson v Merret Syndicates Ltd plus an assumption of responsibility. He also said that an assumption of responsibility and duty of care are the same thing.[p16] Directors could be vicariously liable, or liability could be attributed to them even if they have heeded the advice of fellow directors and continued to trade.[p17] A liquidator can request that the court examine the conduct of any person connected to the company directly or indirectly if it appears that the person has ‘misapplied, retained or become liable or accountable for any money or property of the company. or been guilty of any misfeasance or breach of trust in relation to the company. The court can order the person to restore, repay or contribute to the assets of the company by way of compensation as the court sees fit[p18] In summary, a claim could be brought against anyone by the liquidator if it can be evidenced that his advice has contributed to the insolvency of the company.

A decision to make full use of the overdraft facilities provided by the bank after cash flow problems and an intimation of possible insolvency?

[p19]
If during the liquidation of a company it becomes evident that the directors of the company continued to trade even though they were cognizant of the fact that they were unable to pay their creditors, the Insolvency Act (4) provides that the directors have been trading fraudulently.[p20] Also, under section 214 of the Insolvency Act, a director or directors can have an action of Wrongful trading can only be brought by a liquidator against the directors of a company while fraudulent trading can be brought against any business of a company.[p21] The liquidator would need to provide immense evidence that shows that the directors should have known about the insolvency. Evidence such as pressure from creditors, only paying creditors after demands have been made, warnings by auditors of the company and inaccurate record keeping. The liquidator should indicate when he thinks, based on the evidence provided, that the directors should have been aware or actually realised that the company had become insolvent as it is vitally important that the company must have entered liquidation for a claim to be brought.[p22] Taking on debt that cannot be paid and lying to creditors can be viewed as fraudulent depending on the facts of the case and the knowledge of the directors. In Re DKG Contractors Ltd, it was held that even though the directors claimed that they had no idea about companies and what being a director entailed, they should have realised that when they became ‘aware of pressing creditors’ and ‘a supplier refusing to make further deliveries...they should have instituted some form of financial control’.[p23] A defence against wrongful trading is that the director would have to show that they made decisions and took steps to mitigate financial loss.[p24] A disqualification order may be made against someone who is found guilty of misconduct while running a company. In Re Westwood Packing Services Ltd it was said that in determining a period of disqualification by a civil court, the period must reflect the seriousness of the offence, have preventative measures, an assessment of the correct period and must allow for attenuating factors. Also, the former director's age, state of health and their admittance of the offence before and after the offence may be relevant and admissible. However, another view is that in determining the period of qualification of a director, protection of the public from the past wrongdoing of the director should be paramount. Every other factor is irrelevant.[p25] Experiencing cash flow problems seven months earlier and stil deciding to make full use of the overdraft facilities provided by their bank is probable cause for a liquidator to bring an action in respect of wrongful trading and or fraudulent trading. Wrongful trading if they continued to trade knowing that they could not afford to pay their creditors and fraudulent trading if they falsified accounts to get full use of the overdraft facilities.

Failure to present a true picture of TCL’s financial state: Fraudulent trading

[p26] Presenting false information amounts to dishonesty and may be viewed as fraudulent activity, specifically the defrauding of a creditor. However, as already mentioned, the intent would have to be evidenced.Intent to defraud can be viewed in two ways. The intent to defraud a creditor and to achieve certain objectives. A liquidator could prove intent by providing a record of a business’s accounts at any material time during its trading. Also, records of the minutes of meetings held around specific times would need to be provided.Is the sale of a company’s stock after the commencement of the winding up allowed?As long as the sale of stock after the commencement of winding up is done with the consent of the liquidator and is to raise funds for the creditors, there should be no issues. The decision to sell shares must be made with the knowledge and consent of the liquidator. If the reverse is the case, the directors will be trading wrongfully, and an action can be brought against them. The directors could also face liability for personal debt. This is because once a liquidator is appointed, all the powers of the directors cease apart from when the creditors allow them to continue.

DUTIES OF THE LIQUIDATOR

[p27] Where the winding up of a company is compulsory, the official receiver continues as the liquidator. Legislation states the role of the liquidator. Where a company is being wound up by the court, the liquidator is to make sure that the assets of the company are collated, realised and distributed to the company’ creditors. The role is to some degree the character of a trustee, the officer of the company and the agent of the company. The role is also predominantly administrative but when performing the directives of the judges, it is semi-judiciary.The liquidator is not a trustee according to legislation because the company property does not legally belong to him, but the court can make an order giving the liquidator such authority if needed. The liquidator assumes the powers of the directors and owes a duty to the company. They cannot buy the property of the company or make a profit from the sales of the company..[p28] The liquidator is in a more delicate position than a lay trustee because he is always paid to assume his responsibility. A high standard of care and diligence is expected from a liquidator. Moreover, it has not been categorically stated that a liquidator can claim protection of the Trustee Act if he has acted honestly and reasonably and ought to be excused. In Re Windsor Steam Coal Ltd, the court decided that where a liquidator had not acted reasonably, by taking a decision without the direction of the court, the question of whether Trustee Act 1925 s 61 could be used as a defence was inconclusive.A liquidator negotiates on behalf of the company and so has the character of an agent. If needed, he makes contracts on behalf of the company for winding up purposes. However, he controls the actions of the company and so is not an agent in every sense of the word.Legislation provides that the liquidator is an officer of the company. He is also described as the person whom proceedings may be taken for misfeasance.A liquidator is controlled by the court because an action may be brought against him by anyone who is disgruntled by his recommendation or conduct. However, the courts are seen to generally favour whatever decision the liquidator arrives at.In a compulsory winding up, such as in our scenario, about half of his power is controlled by the court. He will need to seek the approval of the court to bring or defend actions, pay creditors in full and any business of the company as it relates to winding it up. But duties like selling the company’s properties or raising money from the company’s wealth can be done without the oversight of the court. In a case such as in our scenario, he will need the approval of the court to make a compromise with creditors, to compromise calls and debts and to pay creditors.The liquidator takes charge of all the assets and money in the bank that the company has but not money controlled by a trust. But assets still in the process of being sold before the commencement of the winding up of the company.

Secret Profits

[p29] If the directors have made unauthorised profits out of their positions, for example where the directors help the parent company out by putting up money for shares in a subsidiary company but were made to repay to the parent company a profit on those shares when they were sold. The directors may have also paid themselves unauthorised salaries which need to be returned.As already mentioned, the company’s officers may have actions brought against them for wrongful or fraudulent trading. Any money recovered from this is put into a fund for all the creditors.Legislation also provides that the actions of a promoter can be examined. This could be a previous or current promoter. If it is evident that the promoter has misapplied, retained or become liable for any property of the company, the court can order the promoter to repay, restore or contribute to the assets of the company.Under the Insolvency Act, the order of priority as it relates to payment of creditors is: Liquidators costs, fixed charge creditors, other costs and expenses, preferential debts, prescribed part funds, floating charges, unsecured creditors, interest in unsecured debts and last of all shareholders. The liquidator receives payments from part of the expenses of the winding up procedure.

CONCLUSION[p30] In this scenario, if the directors of the company continued to trade during difficult times because they had a genuine belief that the company would resume its buoyancy they may not be liable. The courts would look at what the director actually believed, but also what a reasonably diligent director should have known in that position.However, if it became apparent that the company was unable to pay its debts as the company and the directors continued to trade while arrears were amassed. The liquidator may be able to bring an action for wrongful or fraudulent trading against all or some of the directors. depending on the roles that each director has in the company and the evidence he can collate to support his cases.If the liquidator can prove fraudulent or wrongful trading against a director or officer, the court may order that person to become personally liable for the debt. However Wild and Weinstein state that it is not prudent for the liquidator to enter into litigation for the company as there is no more funding available for matters of company and partnership law. Further if the judge finds for the directors of the company, the cost is borne by the liquidator. Cases that are likely to be successful have their costs paid for by the creditors. Also, if litigation were to commence it is normally recouped by the money set aside from the company funds.Ultimately, the case illustrates the fine line directors walk when trading through financial difficulty. Honest belief is important, but it must be accompanied by careful, diligent, and well‑documented decision‑making.

SOURCESCompanies Act 2006 s 171 – 177.Companies Act s 250.Revenue and Customs Commission v Holland [2010] UKSC 51 [21] (Lord Hope).Re Hydrodram (Corby) Ltd (in Liquidation) [1994] 2 BCLC 180 [182C] - [182E] (Millett J).Dorchester Finance Co Ltd v Stebbing [1989] BCLC 498 [505F] - [505H] (Foster J).Re Smith v Fawcett Ltd [1942] 1 AII ER [543G] (Lord Greene).Re Smith v Fawcett Ltd [1942] Ch 304 [306 (Lord Grene).Francis Beaufort Palmer and Geoffrey Morse, Palmers Company Law (Sweet and Maxwell) para 8.508.Regentcrest plc v Cohen [2001] 2 BCLC 80 [105B] - [105C] (Jonathan Parker LJ).Regentcrest plc (in liquidation) v Cohen v Another [107] - [108] (Jonathan Parker LJ).Practical Law Restructuring and Insolvency ‘Insolvency and Consideration for Directors’ <https://uk.practicallaw.thomsonreuters.com/5-107-3984?transitionType=Default&contextData=(sc.Default)> Accessed 2nd August 2024.Practical Law Restructuring and Insolvency ‘Insolvency and Consideration for Directors’ <https://uk.practicallaw.thomsonreuters.com/5-107-3984?transitionType=Default&contextData=(sc.Default)> Accessed 2nd August 2024.Mutual Life Insurance Co of New York v Rank Organisation Ltd [1985] BCLC 11 [23G] - [24A] (Goulding J).Charles Wild and Stuart Weinsten, Smith and Keenan’s COMPANY LAW (18th Edition Pearson 2019) 210.Mutual Life insurance Co of New York v Rank Organisation Ltd [1985] BCLC 11 [24B] - [24E] (Goulding J).Companies Act 2006 Chapter 5 s 415.Charles Wild and Stuart Weinsten, Smith and Keenan’s COMPANY LAW (18th Edition Pearson 2019) 232.Insolvency Act 1986 s 238.Arlidge A and Fisher J, Arlidge and Parry on Fraud (6th Edition Sweet and Maxwell 2020) 21-018.Report of the Insolvency Law Review Committee, Insolvency Law and Practice (HMSO 1982) Cmnd 858 (routinely referred to as the Cork report) paras 1776 – 1780.Companies Act 2006 s 174.Charles Wild and Stuart Weinsten, Smith and Keenan’s COMPANY LAW (18th Edition Pearson 2019) 216.Lister v Romford Ice and Cold Storage Co [1957] 1 AC 555 [572] - [573] (Viscount Simonds).Philip R Wood, Principles of International Insolvency (3rd Edition Sweet and Maxwell 2019) 31- 004.Re White v Osmond Parkstone Ltd (1960 unreported).C.M Scmitthoff Palmers Company Law (23rd Edition vol 1 1982) 1192.Morphitis v Bernasconi and others [2001] BCLC 1 [28] – [29], [41 - [42] (Anthony Elleray QC).Hogg v Cramphorn [1966] 3 All ER 420 [426E] - [426G] (Buckley J).Taylors Industrial Flooring Ltd v M & H Plant Hire (Manchester) Ltd [1990] BCLC 216 [219I] (Dillon J, [221C] - [221E] (Staughton LJ).R v Grantham (Paul Reginald) [1984] QB 675 [684] (Lord Lane CJ).Charles Wild and Stuart Weinsten, Smith and Keenan’s COMPANY LAW (18th Edition Pearson 2019) 571.Thomas Saunders Partnership v Harvey (1989) 30 Con LR 103 [122] (Mr Recorder Thayne Forbes QC).Insolvency Act 1986 s 213 and s 246ZA.Re Patrick and Lyon Ltd [1933] Ch 786.Re JD Group Ltd [2022] EWHC 202 (Ch).Re Marini Ltd (the liquidator of Marini Ltd and Dickenson and Others) [2003] EWHC 334.Re Produce Market Consortium Ltd (No 2) [1989] BCLC 520.Re Brian D Pierson Contractors Ltd [1999] BCC 26.Insolvency Act 1986 ss 148 - 151, 158.Re Produce Marketing Consortium [598].Nicholson v Fielding [2017] AII ER (D) 156 (Oct) [110].Lejonvarn v Burgess [2017] EWCA Civ 254.Burgess v Lejonvarn [2016] EWHC 40 TCC [201] - [202] [205] (Mr Alexander Nissen QC).Robinson v National Bank of Scotland [1916] 4 WLUK 16.Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 [486] (Lord Reid), [502] - [503] (Lord Morris).Merrett v Babb [2001] QB 1174 [1189H] - [1191A], [1193B] (May LJ).Henderson v Merret Syndicates Ltd [1995] 2 AC 145.Caparo Industries plc v Dickman [1990] 2 AC 605.Insolvency Act 1986 s 212(1)(c).Charles Wild and Stuart Weinsten, Smith and Keenan’s COMPANY LAW (18th Edition Pearson 2019) 571.Insolvency Act 1986 s 21.Alix Adams Law for Business Students (10th Edition Pearson Education Ltd 2018) 478.Re Produce Marketing Consortium Ltd (No 2) [1989] 5 BCC 569Stephen Griffin, Personal Liability and Disqualification of Company Directors (1st Edition Bloomsbury 1999) 92-94.Wright v Chapell [2024] EWHC 1417 Ch [1153] (Mr Justice Leach).Re DKG Contractors Ltd [1990] BCC 903 (J Weeks QC).Insolvency Act 1986 s 214(3).Company Directors Disqualification Act 1986 (c 46) s 2.Re Westwood Packing Services [1998] 2 AII ER 124 [132] (Lord Woolf).Abbas Mithani, ‘The Flawed Approach of the Criminal Courts to the Making of Disqualification Orders – options for intervention’ [2023] Criminal Law Review 762, 769.Arlidge A and Fisher J, Arlidge and Parry on Fraud (6th Edition Sweet and Maxwell 2020) 21-024.R v Inman [1967] 1 QB 140 [148A] (Marshall J).Charles Wild and Stuart Weinsten, Smith and Keenan’s COMPANY LAW (18th Edition Pearson 2019) 570.Insolvency Act 1986 s 143.Charles Wild and Stuart Weinsten, Smith and Keenan’s COMPANY LAW (18th Edition Pearson 2019) 568.Re Chevron Furnisher Pty Ltd (1994)12 ACSR 565 [569].Insolvency (Amendment) Rules 2010 (SI 210/686).Re Home and Colonial Insurance Co [1929] AII ER Rep 231.Trustee Act 1925 s 61Re Windsor Steam Coal Ltd [1929] 1 Ch 151.Charles Wild and Stuart Weinsten, Smith and Keenan’s COMPANY LAW (18th Edition Pearson 2019) 568.Companies Act 2006 s 30 (4).Insolvency Act 1986 s 212.Leon v York O-Matic [1966] 3 AII ER 277.Insolvency Act 1986 s 167.Insolvency Act 1986 s 165.Re Kayford [1975] 1 AII ER 604Insolvency Act 1986 s 237.Insolvency Act s 208.R v McCredie [2000] BCLC 438

Cite this work (OSCOLA)
Elaine Obika, 'When Directors Keep Trading Through Financial Distress: Duties, Risks, and the Liquidator’s Lens' (2024) Volume 2 Issue 1 Menara Aspen Advisory Journal eMAAJ5comp [pinpoint] <https://maajana1.carrd.co/#trading> accessed [Day Month Year].'

Published by Menara Aspen Advisory London England United Kingdom.
MENARA ASPEN ADVISORY LTD – AUTHORED WORK NOT FOR REPRODUCTION OR DISTRIBUTION

Menara Aspen Advisory Journal ISSN 2979-1723

Factually Ambiguous, Legally Delicate

Press Cmd + F (Mac) or Ctrl + F (Win) to find keywords.

Article No: eMAAJ18pl
Category: pl (public law)
Published: 22nd January 2026
Author: Elaine Obika

[p1] The recent judgement in Austin Hurst v Solicitors Regulation Authority [2026] EWHC 85 (Admin) highlights the tension between procedural formalism and substantive justification in the UK’s regulatory framework. While a strict adherence to the letter of the law provides certainty, an over reliance on technicality at the expense of context may ultimately frustrate the spirit of the regulations the system was designed to enforce. Nevertheless, it is arguable that the Administrative Court’s decision was not a mandate for a divergent outcome but rather a demand for a more robust analytical architecture in the tribunal’s decision making process.[p2] The real message in this case appears to be that a demand for a retraction can be a settlement or suppression and the “without prejudice" (hereinafter WP) label can be viewed as proper or improper. Also, motive can matter, but only after the appropriate legal tests are applied.The central inquiry is whether the determination possessed the substantive justification for it to be upheld? When evaluated through an objective lens, does the email exhibit the requisite indica of a genuine settlement negotiation? Does a demand for retraction count as a “genuine” attempt to settle?[p3] Within the framework of defamation practice, a demand for retraction frequently constitutes an integral component of a bona fide settlement endeavour, consistent with Offer of Amends regime under ss 2-4 Defamation Act 1996. Standardised pre-action conduct – exemplified by proposals to forego litigation in exchange for a formal apology or correction – is explicitly contemplated by the Pre-action Protocol for Media and Communication Claims (para 1.4). Consequently, the inclusion of a demand for retraction does not ipso facto render a WP designation inapposite. This point of contention necessitated the judicial reasoning in Austin Hurst v Solicitors Regulation Authority where the Court emphasised the requirement for a clear articulation of why the communication failed to satisfy the criteria for a genuine settlement attempt at paragraph [79].Based on the publicly documented contents, the email comprised a peremptory demand, an adversarial threat and a prescriptive deadline, while conspicuously omitting any proposed terms of compromise. When viewed objectively, the elements characterize the communication as a formal demand for compliance under the aegis of threatened litigation rather than a bona fide negotiation. Consequently, this represents a compelling argument that the email lacked the requisite settlement intent to attract privilege.

[p4] Was the “WP” label applicable to the underlying substance of the communication?Under the objective test: If the email is not a settlement communication, then the WP designation is automatically improper, regardless of motive. So, the key question becomes: Did the email serve as a negotiation protocol? If not, the WP label is misleading.The tone was reportedly: urgent, pressuring and implicitly threatening. But tone alone does not decide the objective test. A settlement offer can be robust. A coercive letter can still be a settlement attempt. Tone is secondary.It is necessary to examine how the objective test applies to this case.According to the lexical analysis of the communications circulated in the public sphere, arguments that it was a settlement attempt (objective test satisfied) rely on the demanding of a retraction in the email, offering a way to avoid litigation. As already stated, the WP label is often used in pre action defamation correspondence.Arguments that it was not a settlement attempt (objective test failed) rely on the absence of an offer of compromise. No negotiation. No terms beyond “retract or be sued.” The WP label appeared to be used to deter publication, not to facilitate negotiation. The substance of the correspondence is more closely aligned with a formal admonition than a bona fide settlement proposal.The ambiguity arising from these two substantively grounded constructions necessitated a higher degree of justificatory rigour. Consequently, it was ruled that the Tribunal had a duty to elucidate its reasoning for its ultimate finding.The available evidence indicates that the conduct may have appeared to be coercive, but the motive was to reach a settlement.” A tenacious or robust mode of expression is often a component of adversarial negotiation and does not, in the absence of further evidence, meet the threshold for professional misconduct. Under the objective test, the presence of coercive elements does not ipso facto vitiate the status of a communication as a genuine settlement endeavour. Also, the mere presence of a settlement motive does not ensure a valid WP classification; the substance of the communication must objectively align with the criteria for compromise. (see Jones v Tracey & Ors (Re costs)[2023] EWHC 2256 (Ch)).The initial determination was amenable to judicial review owing to its procedural and substantive deficiencies, notably the omission of the use of objective test.The dearth of conciliatory substance within the email strongly suggests that the designation was inapposite. Conversely, the argument reverts to a position of neutrality when one considers that such demands are standardised features within the statutory regime of defamation practice. The competing arguments regarding the WP status of the correspondence appear to be in analytical equipoise.Which of the competing interpretations carries the greater evidentiary weight when subjected to an objective appraisal?

It is necessary to examine how the objective test applies to this case.

According to the lexical analysis of the communications circulated in the public sphere, arguments that it was a settlement attempt (objective test satisfied) rely on the demanding of a retraction in the email, offering a way to avoid litigation. As already stated, the WP label is often used in pre action defamation correspondence.Arguments that it was not a settlement attempt (objective test failed) rely on the absence of an offer of compromise. No negotiation. No terms beyond “retract or be sued.” The WP label appeared to be used to deter publication, not to facilitate negotiation. The substance of the correspondence is more closely aligned with a formal admonition than a bona fide settlement proposal.The ambiguity arising from these two substantively grounded constructions necessitated a higher degree of justificatory rigour. Consequently, it was ruled that the Tribunal had a duty to elucidate its reasoning for its ultimate finding.The available evidence indicates that the conduct may have appeared to be coercive, but the motive was to reach a settlement.” A tenacious or robust mode of expression is often a component of adversarial negotiation and does not, in the absence of further evidence, meet the threshold for professional misconduct. Under the objective test, the presence of coercive elements does not ipso facto vitiate the status of a communication as a genuine settlement endeavour. Also, the mere presence of a settlement motive does not ensure a valid WP classification; the substance of the communication must objectively align with the criteria for compromise. (see Jones v Tracey & Ors (Re costs)[2023] EWHC 2256 (Ch)).The initial determination was amenable to judicial review owing to its procedural and substantive deficiencies, notably the omission of the use of objective test.The dearth of conciliatory substance within the email strongly suggests that the designation was inapposite. Conversely, the argument reverts to a position of neutrality when one considers that such demands are standardised features within the statutory regime of defamation practice. The competing arguments regarding the WP status of the correspondence appear to be in analytical equipoise.

Which of the competing interpretations carries the greater evidentiary weight when subjected to an objective appraisal?

Sources

Austin Hurst v Solicitors Regulation Authority [2026] EWHC 85 (Admin).

Cite this work (OSCOLA)
Elaine Obika, 'Factually Ambiguous, Legally Delicate*' (2026) Volume 4 Issue 2 Menara Aspen Advisory Journal eMAAJ18pl [pinpoint] <https://maajana1.carrd.co/#factuallyambiguous> accessed [Day Month Year].'

Published by Menara Aspen Advisory London England United Kingdom.
MENARA ASPEN ADVISORY LTD – AUTHORED WORK NOT FOR REPRODUCTION OR DISTRIBUTION

Menara Aspen Advisory Journal ISSN 2979-1723

Article 25: Reconciling its interpretative divergence in the CISG

Press Cmd + F (Mac) or Ctrl + F (Win) to find keywords.

Article No: eMAAJ11itl
Category: itl (international trade law)
Published: October 2025
Author: Elaine Obika

Abstract

This article examines the interpretative divergence surrounding Article 25 of the CISG and situates the provision within the Convention’s broader commitment to transnational neutrality and autonomous interpretation. While the CISG introduces several innovative features — including strict liability, flexible formation rules, and the exclusion of validity — Article 25 remains one of its most contested provisions. Its dual‑axis test of substantial detriment and foreseeability has generated significant doctrinal fragmentation, with courts and arbitral tribunals adopting commercially, relationally, or expectation‑based reasoning. These inconsistencies are compounded by the interpretative obligations in Article 7(1), particularly the requirement of internationalism and the unresolved scope of good faith. Against this backdrop, the article proposes a Quad‑Matrix Breach Assessment model designed to guide principled, CISG‑autonomous application. By classifying breach scenarios along the axes of obligation type and buyer impact, the framework promotes uniformity, discourages reliance on domestic analogies, and enhances remedy predictability. The analysis concludes that structured breach assessment is essential to preserving the CISG’s coherence and long‑term viability as a genuinely transnational instrument.

Keywords

CISG; Article 25; Fundamental Breach; Article 7(1); International Interpretation; Good Faith; Doctrinal Divergence; Uniformity; Transnational Contract Law.

Doctrinal Architecture and Jurisprudential Divergence

This section introduces the new features of the Vienna Convention on the International sale of Goods (hereinafter CISG) while critically unpacking the doctrinal and jurisdictional tensions surrounding Article 25. The analysis adopts a structured doctrinal method, recognising its reform-orientated potential. [1]Unlike domestic sales regimes, the CISG prioritises transnational neutrality and upholds an equitable distribution of rights and obligations between contracting parties. [2] Among its novel features are the exclusion of validity and property rules; [3] its neutral stance on standard terms; [4] electronic communication compatibility; [5] flexible offer and acceptance formation; [6] and strict liability in its remedial architecture. [7] The governance of contractual validity is excluded from its purview [8] nevertheless the CISG constructs a substantive framework for breach classification, most notably, the concept of fundamental breach under Article 25. [9]Article 25 operates as a functional filter through which both judicial and arbitral bodies interpret breach severity. It defines a fundamental breach as one that “results in such detriment to the other party as substantially to deprive them of what they are entitled to expect under the contract,” provided the breaching party foresaw or should have foreseen such result”. [10]The provisions language embeds a dual axis test: substantial detriment and foreseeability, both of which have yielded significant interpretative heterogeneity across jurisdictions. [11] This phrasing while deceptively straightforward, has fostered doctrinal fragmentation and inconsistent thresholds. [12] [13]The doctrinal complexity of article 25 cannot be understood in isolation from the interpretative apparatus outlined in Article 7(1)[14] which underscores the need for autonomous and globally coherent doctrinal analysis. The protracted success of the CISG is contingent upon how national courts construe its innovative provisions, [15] particularly, through an internationally orientated method.Against this backdrop, three key interpretative challenges have emerged - two of which pertain to Article 7(1) and frame this analysis. First, concerns persist regarding the extent to which judicial and arbitral bodies faithfully adopt an international approach and acknowledge relevant jurisprudence. [16] Second, significant doctrinal indeterminacy surrounds the good faith requirement whose scope and normative weight remain unresolved. These interpretative challenges bear directly on how fundamental breach under Article 25 is assessed and applied in practice. [17]Tribunals vary: some favour commercial impact, others relational or expectation-based reasoning. [18] This divergence complicates remedy predictability and underscores the need for structured critique [19]This paper proposes a matrix-based breach assessment model to reconcile interpretative divergence and guide principled application. Article 25 is framed as both a doctrinal node and a site of analytical contestation.Doctrinal Foundation of Article 25 CISGForeseeabilityForeseeability concerns the evidentiary burden borne by the alleging party. A breach is fundamental only if the breaching party actually foresaw or ought reasonably to have foreseen its consequences. Thus, Article 25 requires proof of both subjective and objective unpredictability. [20]However, foreseeability is not decisive in assessing breach severity; it may function as an affirmative defence. [21] The breaching party must show actual ignorance and lack of foreseeability from a reasonable standpoint [22] [23] Shifting this burden to the aggrieved party would be disproportionate. Interpreting “and” as “or” would demand proof of subjective foresight—an untenable interpretation. The reasonable person standard remains the decisive lens through which foreseeability is assessed. [24]Importing foreseeability into breach analysis misaligns with Article 25’s remedial logic. While relevant under Article 74 for damage quantification, its migration into breach classification makes gravity contingent on speculation. Conditioning fundamental breach on ex ante privileges conjecture over objective performance failure. In cross-border trade, where volatility and opacity prevail, this risks shielding serious breaches. A seller’s failure to supply goods as agreed frustrates the buyer’s commercial expectation in fact, regardless of predictability. Recognising delivery failure as fundamentally grave upholds the CISG’s protective and certainty-promoting function, confining foreseeability to its compensatory domain. [25]Substantial DeprivationConstruction of Article 25 rests on evaluative standards such as “substantially to deprive” or “entitled to expect” both noted for their indeterminacy and lack of authoritative definition. [26] While this deliberate vagueness accommodates factual diversity it risks undermining legal predictability. [27] [28] The standard-rule dichotomy often invoked to justify such broad language remains underexamined. [29] One might question whether Article 25 should incorporate threshold indicators or presumptive benchmarks to temper interpretive discretion. [30]. Jurisprudence shows selective engagement with contextual factors but lacks a harmonised framework—revealing a structural lacuna in breach analysis. [31] [32]Entitled To ExpectArticle 25 must be read in conjunction with Articles 7, [33] 35, 48, and 49. [34] Article 7(1) mandates interpretation consistent with CISG’s international character and uniformity goals. [35] [36] “Entitled to expect” in Article 25 CISG denotes objective expectations rooted in the contract, trade usages, and prior dealings; not subjective preferences. It anchors the inquiry into whether a breach has defeated the contract’s core benefit.The CISG Advisory Council interprets entitlement autonomously, grounded in full commercial context and consistent with the good faith principle in Article 7(1). [37] Liu interprets “under the contract” to include both express and implied terms, aligning with the CISG’s teleological aim of preserving economic balance and predictability in international trade. [38] In Schmitz-Werke, [39] tribunals affirmed that a buyer’s entitlement under Article 25 encompasses both technical conformity and the commercial purpose. [40] Ishida likens entitlement to foreseeability, embedding a reasonableness criterion. This supports an objective, context-sensitive breach threshold and curbs opportunistic avoidance. [41]Other Supporting ConceptsSupporting concepts include detriment, curability, good faith and reasonable person standard.Detriment activates the substantial deprivation test. Koch sees it as a filter: the breach must cause material or functional injury, not just loss of value. [42]Curability though not in Article 25, is invoked under Articles 48 and 49, adding a remedial dimension. [43]Good faith informs entitlement and foreseeability, [44] offering a contextual lens for evaluating conduct. [45]Reasonable Person Standard tempers subjective claims with commercial logic [46] Beyond breach analysis, its interpretive function is codified in the UNIDROIT principles, [47] where it serves to reconstruct contractual meaning where the parties’ shared intent cannot be established – anchoring ambiguity resolution in contextualised commercial reasonableness. [48] [49]Comparative Jurisdictional CritiqueGermanGerman engagement with the CISG is reflected both in sustained academic interest and in the substantial interpretative contribution of its judiciary. [50] As of 10 January 2021, Germany accounted for the highest number of reported decisions (222) on the CLOUT database, including several rulings by the Federal Supreme Court that have been regarded as highly authoritative beyond German borders. [51]German commentators typically begin by examining the parties’ contractual intent to determine which obligations are essential for termination. [52] Additional factors include the gravity of the breach relative to the contract’s purpose, the parties’ interests, and the potential for cure.Bundesgerichtshof – Germany’s federal court of justice (hereinafter BGH), tends to apply foreseeability and curability as mitigating factors—often rejecting avoidance even in cases of significant delay or defect. [53] [54] In Oberlandesgericht Düsseldorf, [55] the court held that curability negated fundamental breach, even where the goods where defective. [56]Ferrari observes that German courts frequently deny fundamental breach in cases of non-delivery or late delivery, treating such breaches as curable unless the buyer can demonstrate irreparable detriment or loss of contractual purpose. This reflects a doctrinal preference for preserving contractual efficiency and avoiding unnecessary termination. [57] [58] Koch critiques this outcome-focused stance for marginalising buyer reliance—particularly where curability is privileged over the buyer’s commercial expectations. This paper extends Koch’s concern by arguing that such an approach may disproportionately burden buyers engaged in resale chains or time-sensitive transactions. In practice, sellers are afforded a wide berth to cure non-performance, even where delay undermines the buyer’s commercial viability. The insistence on curability risks obscuring the functional harm caused by delay, subordinating the buyer’s reliance interest to a formalistic notion of contractual preservation. In this respect, the German approach, though doctrinally coherent, may prove commercially untenable and normatively unbalanced. [59]This paper proposes a recalibration of evidentiary standards under Article 25 CISG, whereby the burden shifts to the seller to demonstrate curability in cases of non-delivery or delay. Concurrently, the buyer should be permitted to establish substantial interference through commercially grounded indicators — such as downstream breach risk, reputational harm, or financial loss exceeding a defined percentage of the contract value. This approach avoids the doctrinal vagueness of ‘loss of contractual purpose’ and restores analytical clarity to breach assessment.Germany’s structured and remedial-centric approach stands in contrast to China’s more discretionary and context-sensitive interpretation, which we now examine.ChineseChinese arbitral and judicial practice reveals a fragmented approach to Article 25. Ishida observes that CIETAC tribunals often treat reputational harm and buyer reliance as indicators of fundamental breach, especially in branded goods and resale contexts, even where defects are minor. [60]. [61] Liu and Ren’s empirical study of CISG judgments confirms instability, noting the lack of a consistent breach standard across Chinese adjudication. [62]Chinese CISG adjudication often lacks interpretive uniformity, with courts reverting to domestic legal principles in ways that obscure the CISG’s autonomous framework. Rather than promoting doctrinal clarity, this reliance reflects deeper structural characteristics of China’s legal system, most notably, what Potter describes as legal instrumentalism, wherein statutory vagueness is not a drafting flaw but a deliberate feature designed to accommodate policy flexibility and administrative discretion. [63] Peerenboom similarly notes that Chinese legal development is shaped by broad legislative drafting and Confucian traditions that prioritize moral persuasion and relational harmony over legal determinacy. [64]Rather than fostering harmonization, these features entrench a form of institutional inertia, inhibiting courts from adopting transnational interpretive methodologies.As Peerenboom highlights, the persistence of adjudicative discretion and statutory indeterminacy in Chinese legal practice poses challenges for transnational instruments like the CISG. In relation to Article 25, this paper contends that such doctrinal entrenchment intensifies the Convention’s own vagueness and destabilizes breach assessments in Chinese case law. Particularly, CISG’s failure to define key evaluative thresholds such as “fundamental breach” and “substantial deprivation” undermines the consistency of breach assessments in Chinese case law.This paper proposes a complementary remedy to interpretative inconsistency in CISG adjudication. Mandating reference to a transnational case law forum may enhance doctrinal coherence, especially in breach assessments under Article 25, but it could also provoke resistance from jurisdictions wary of external interpretive authority. A more viable alternative may lie in incentivizing judicial engagement with curated case law databases, supported by training and doctrinal commentary, rather than imposing rigid obligations that could jeopardize ratification consensus. This approach respects the Convention’s foundational compromise—uniformity through Article 7(1) without binding precedent—while offering a functional path toward greater consistency in breach determinations.FrenchDiMatteo et al state that French courts have generally administered the CISG’s fundamental breach standard with ease, often equating it to the domestic concept of “sufficiently serious breach.” In doing so, they apply factors beyond Article 25’s text, including the obligee’s interest, foreseeability of loss, and additional subjective and objective criteria drawn from domestic law. [65] These include the promptness of each party’s response, [66] fault in causing or mitigating the breach, [67] evidentiary certainty, [68] availability of technical examination, and any refusal to cooperate. [69]However, French case law remains limited and doctrinally insular, with courts showing reluctance to engage with foreign CISG jurisprudence or adopt transnational interpretive methods. [70] This has led to inconsistent application of the foreseeability test and a tendency to subsume CISG analysis within domestic breach frameworks. [71]Judicial training, this paper argues, offers a pragmatic path to harmonization. France’s École Nationale de la Magistrature, with support from UNCITRAL, the CISG Advisory Council would strengthen doctrinal depth through CLOUT integration, expert workshops, and curated case law resources. [72]Introducing the Quad-Matrix FrameworkTo support a more consistent application of Article 25, this section proposes the Quad-Matrix. A structured framework that classifies breach types and offers courts a doctrinal lens for assessing fundamental breach in a way that reinforces the CISG’s autonomous logic and reduces interpretive divergence.The Quad-Matrix framework distinguishes breach scenarios along two axes: the nature of the obligation (delivery vs conformity) and the type of impact on the buyer (objective vs subjective). This yields four interpretive quadrants, each guiding courts toward a CISG-consistent assessment of fundamental breach under Article 25.Non-delivery - typically falls within Quadrant I (Delivery + Objective Impact). It is presumptively a fundamental breach, as it deprives the buyer of the entire benefit of the contract. Article 25 is satisfied unless exceptional circumstances — such as buyer-induced non-performance, force majeure, or effective mitigation — negate substantial deprivation or foreseeability.Late delivery - where the buyer relies on a fixed delivery date for resale or production, falls within Quadrant II (Delivery + Subjective Impact). Here, the breach may be fundamental if the seller knew or ought to have known of the buyer’s reliance, and the delay foreseeably undermines the buyer’s commercial purpose. Courts must assess foreseeability not by duration alone, but by contextual harm.Defective goods fall within Quadrant III (Conformity + Objective Impact) when the goods are unusable for their ordinary or agreed purpose. The breach is fundamental if the buyer suffers a substantial deprivation, and the seller could foresee this impact. Article 8 guides the foreseeability analysis, particularly where the buyer’s intended use was communicated.

Wrong quantity and packaging/labelling breaches often fall within Quadrant IV (Conformity + Subjective Impact) These breaches may be fundamental if the seller knew the buyer’s reliance on full quantity or regulatory compliance — for example, where resale or export was anticipated. Courts must assess whether the deprivation was foreseeable considering the seller’s knowledge and the commercial context.By classifying breach types within this matrix, courts are encouraged to apply Article 25 autonomously, avoiding domestic analogies and focusing on the CISG’s core criteria: substantial deprivation and foreseeability. The matrix does not constrain judicial discretion but disciplines it, offering a doctrinal lens through which breach severity can be assessed consistently across jurisdictions. See the links below for Tables 1 and 2 (Author’s Own) in Appendix’s A and B for breach typologies.

Cure and Avoidance in Breach ClassificationRemedies under the CISG — particularly the seller’s right to cure (Article 48) and the buyer’s right to avoid (Articles 49 and 64) — operate within the doctrinal boundaries set by Article 25. [73] Yet across jurisdictions, the interpretation of these remedies often diverges, revealing tensions between buyer protection, seller opportunity, and the Convention’s goal of uniformity. This section critiques how cure and avoidance are applied in practice, assessing whether they reinforce or destabilize the breach framework outlined in the Quad-Matrix. Particular attention is given to Quadrant II breaches, where performance failures cause moderate buyer impact, and the availability of cure becomes decisive.German courts frequently prioritize the seller’s right to cure under Article 48, even in cases of delayed or defective performance. [74] This approach narrows the scope of fundamental breach, especially in Quadrant II scenarios, where cure is treated as a doctrinal filter before avoidance is considered. The emphasis on preserving contractual performance reflects a seller-protective reading of Article 25.Chinese jurisprudence tends to favour buyer avoidance, particularly where delay or non-conformity disrupts commercial expectations. Courts often grant avoidance without fully exploring the feasibility of cure, suggesting a stricter interpretation of buyer deprivation. [75] This remedy-first approach expands the reach of fundamental breach, especially in Quadrant I and II cases.French decisions occasionally invoke domestic concepts of “essential obligation,” which blur the doctrinal boundary between breach and remedy. Avoidance may be granted even where cure is viable, reflecting a hybrid logic that risks undermining CISG autonomy. [76] This interpretive drift complicates the classification of Quadrant II and IV breaches.Italian courts exhibit doctrinal inconsistency: some decisions emphasize the possibility of cure before recognizing breach as fundamental, [77] subordinating Article 25 to good faith under Article 7(1) while others rely solely on buyer impact and foreseeability. [78] This ambivalence affects the treatment of Quadrant II breaches and reflects an unresolved tension between breach classification and remedial sequencing.Across jurisdictions, the interpretation of cure and avoidance significantly shapes the application of Article 25. Where cure is prioritized, breach thresholds tend to narrow; where avoidance is readily granted, the scope of fundamental breach expands. Embedding remedy logic into breach analysis is essential for doctrinal coherence and for preserving the CISG’s transnational integrity. A harmonized approach would treat cure not as a procedural afterthought but as a substantive filter within breach classification, particularly in borderline cases where buyer deprivation is partial, and performance remains salvageableConclusionStructuring Breach Analysis to Support UniformityThe Quad-Matrix Breach Assessment offers a structured method for interpreting Article 25 that respects judicial discretion while promoting doctrinal consistency. By classifying breach scenarios along two axes — obligation type and buyer impact — the framework guides courts toward a CISG-autonomous analysis grounded in substantial deprivation and foreseeability. It discourages reliance on domestic breach concepts and supports a more predictable, harmonized application of the Convention. In doing so, the matrix contributes not only to clearer judicial reasoning but also to the long-term viability of the CISG as a truly transnational instrument.

REFERENCES

[1] P Ishwara Bhat, ‘Doctrinal Legal Research as a Means of Synthesizing Facts, Thoughts, and Legal Principles’ in Idea and Methods of Legal Research (Oxford University Press 2020) 143–168; Terry Hutchinson, ‘The Doctrinal Method: Incorporating Interdisciplinary Methods in Reforming the Law’ [2015] Erasmus Law Review 130<https://www.academia.edu/115517526/TheDoctrinalMethodIncorporatingInterdisciplinaryMethodsinReformingtheLaw > accessed 19th July 2025.[2] Indira Carr and Peter Stone International Trade Law (Sixth Edition, Routledge 2018) 59.[3] Article 4 CISG < https://cisg-online.org/cisg-article-by-article/part-1/art.-4-cisg > accessed 22nd July 2025.[4] Peter Huber, ‘Standard Terms Under the CISG’[2009] Vindobona Journal of International Commercial Law of Arbitration [2009] 123, 125 < https://iicl.law.pace.edu/sites/default/files/cisgfiles/huber2.html > accessed 22nd July 2025.[5] Ingeborg Schwenzer, ‘The CISG Advisory Council’ CISG Online 1, pp 6-7 < https://cisg-online.org/files/commentFiles/SchwenzerTheCISGAdvisoryCouncil20173.pdf > accessed 22nd July 2025.[6] Indira Carr and Peter Stone International Trade Law (Sixth Edition, Routledge 2018) 63.[7] Indira Carr and Peter Stone International Trade Law (Sixth Edition, Routledge 2018) 83.[8] CISG – AC Opinion 17, p 7 < https://cisgac.com/wp-content/uploads/2023/02/CISGAdvisoryCouncilOpinionNo171.pdf > accessed 22nd July 2025.[9] Koch R, ‘The Concept of Fundamental Breach of Contract under the United Nations Convention on Contracts for the International sale of Goods (CISG) (1998) Review of the Convention on Contracts for the International Sale of Goods (CISG) 177, 348.[10] United Nations Convention on Contracts for International Sale of Goods (adopted 11th April 1980, entered into force 1st January 1988) 1489 UNTS 3 (CISG) art 25.[11] Aneta Spaic, ‘Interpreting Fundamental Breach’ from International Sales Law a Global Challenge (Cambridge University Press 2014) 240.[12] J Brandon Duck- Mayr, ‘Explaining Legal Inconsistency’ (2022) Vol 34 Journal of Theoretical Politics 107-126.[13] Ulrich Magnus, ‘The Remedy of Avoidance Under CISG – General Remarks and Special Cases’ UNCITRAL < https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/magnus.pdf > accessed 23rd July 2025; Ingeborg Schwenzer and Paschal Hachem, ‘The CISG – Successes and Pitfalls’ (2009) Vol 57 The American Journal of Comparative Law 457, 459 < https://www.jstor.org/stable/25652649?ifdata=e30%3D&seq=1 > accessed 23rd July 2025; Larry A Di Matteo, ‘Formal and Operative Rules of the CISG: Case of Article 25’ (2025) Vol 43 Journal of Law and Commerce 184.[14] Article 7 CISG < https://cisg-online.org/cisg-article-by-article/part-1/art.-7-cisg > accessed 27th July 2024.[15] Sara G Zwart, ‘The New International Law of Sales: A Marriage Between Socialist, Third World, Common and Civil Law Principles’ (1988) Vol 13 North Carolina Journal of International Law 109, 111 <https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=1347&context=ncilj > accessed 22nd July 2025.[16] Bonnell and Ligouri, ‘The UN Convention on the International Sale of Goods: A Critical Analysis of Current International Case Law’ (1997) Vol 2 Revue de Droit Uniforme 385.[17] Konstantina Kalaitsoglo, ‘Article 7 CISG – An Interpretation Challenge or A Pretext for Non-Adoption? The CISG through UK Lenses’ 13thJune 2022 The Legal Compass Journal < https://www.thelegalcompass.co.uk/post/art-7-cisg-an-interpretation-challenge-or-a-pretext-for-non-adoption-the-cisg-through-uk-lenses > accessed 27th July 2025.[18] Yashutoshi Ishida, ‘Identifying Fundamental Breach of Articles 25 and 49 of the CISG: The Good Faith Duty of Collaborative Efforts to Cure Defects – Make the Parties Draw a Line in the Sand of Substantiality’ (2020) Vol 41 Michigan Journal of International Law 63, 70-73.[19] Camilla Andersen, ‘The Uniform International Sales Law and the Global Jurisconsultorium’ (2005) Vol 24, The University of Western Australia.[20] Larry A DiMatteo, ‘Formal and Operative Rules of the CISG: Case of Article 25’ (2025) Vol 43 Journal of Law and Commerce 179.[21] Glossary ‘Affirmative Defence’ Thomson Reuters Practical Law <https://uk.practicallaw.thomsonreuters.com/6-518-1993?comp=pluk&transitionType=Default&contextData=(sc.Default)&OWSessionId=9b440b92e769407da29e036ce3a742a6&skipAnonymous=true&firstPage=true > accessed 20th July 2025.[22] Stefan Kröll, Loucas Mistelis, Maria del Pilar Perales Viscacillas The UN Convention on Contracts for the International Sale of Goods (CISG) Commentary (New Edition, Hart Publishing 2011) 341.[23] Cobalt Sulphate Case (VIII ZR 51/95) 3 April 1996 [17]-[22].[24] Cobalt Sulphate Case (VIII ZR 51/95) 3 April 1996 [23].[25] Yasutoshi Ishida, ‘What Does “Foreseeable” Mean, The Scope of Damages Under CISG Articles 74-77: Reasonability Principle of Foreseeability – We Don’t Need a Crystal Ball’ (2022) Vol 40 Journal of Law and Commerce 235.[26] Ingeborg Schwenzer and Ulrich Schroeter CISG Article 25 - Commentary on the UN Convention on the International Sale of Goods(Oxford University Press 2022).[27] Yasutoshi Ishida, ‘Identifying Fundamental Breach of Articles 25 and 49 of the CISG: The Good faith Duty of Collaborative Efforts to Cure Defects – Make the Parties Draw a Line in the Sand of Substantiality’ (2020) Vol 41 Michigan Journal of International Law 63, 67-70 <https://repository.law.umich.edu/mjil/vol41/iss1/3/ > accessed 23rd July 2025.[28] Gerhard Lubbe, ‘Fundamental Breach under CISG: A Source of Fundamentally Divergent Results’ [2004] The Rabel Journal of Comparative and International Private Law 444, 446.[29] Bruno Zeller, ‘Fundamental Breach and the CISG – A Unique Treatment of Failed Experiment?’ (2004) Vol 8 Vindobona Journal of International Commerce, Law and Arbitration 81, 83.[30] Bruno Zeller, ‘Fundamental Breach and the CISG – A Unique Treatment of Failed Experiment?’ (2004) Vol 8 Vindobona Journal of International Commerce, Law and Arbitration 81; ICC Case No 11849 (Final Award 2003) < https://trans-lex.org/211849 > accessed 22nd July 2025.[31] Ulrich G Schroeter, ‘General Principles of CISG Interpretation’ (2007) Vol 22 Pace International Law Review 1, 2; Indira Carr and Peter Stone International Trade Law (Sixth Edition, Routledge 2018) 83; Bruno Zeller Damages Under the Convention on Contracts for the International Sale of Goods (Third Edition, 2018); Yasutoshi Ishida, ‘Identifying Fundamental Breach of Articles 25 and 49 of the CISG: The Good Faith Duty of Collaborative Efforts to Cure Defects – Make the Parties Draw a Line in the Sand of Substantiality’ (2020) Vol 41 Michigan Journal of International Law 63, 64 <https://repository.law.umich.edu/mjil/vol41/iss1/3/ > accessed 23rd July 2025; Ana Paula S C Rizzo de Barros, ‘Definition of Fundamental Breach under CISG’s Article 25 and Analysis of Recent Case Law’ Institute of Commercial Law 1, 6 <https://iicl.law.pace.edu/sites/default/files/bibliography/fulltext.pdf > accessed 17th July 2025.[32] Schmitz-Werke GmbH & Co v Rockland Industries Inc US Court of Appeal (4th circuit) 21st June 2002 < https://www.courtlistener.com/opinion/1007810/schmitz-werke-gmbh-v-rockland-industries/ > accessed 22nd July 2025.[33] Article 7(1) CISG.[34] Article 35 CISG; Article 48 CISG; Article 49 CISG[35] Indira Carr and Peter Stone International Trade Law (Sixth Edition, Routledge 2018) 72.[36] Inma Conde, ‘Regard Is To Be Had’: The Legislative Intent of Article 7(1) of the CISG (Part 1)’ European Journal of Commercial Contract Law 1, 3-5 < https://cisg-online.org/files/commentFiles/UPDATED-Part-1---SUMMARY---REGARD-IS-TO-BE-HAD-part-1---INMA-CONDE---EJCCL.pdf > accessed 22nd July 2025.[37] CISG Advisory Council Opinion No 20 ‘Hardship Under the CISG’ para 2.[38] Chengwei Liu The Concept of Fundamental Breach: Perspectives from the CISG, UNIDROIT Principles and PECL (2nd Edition, IICL 2005) s 2.2.[39] Schmitz-Werke GmbH & Co v Rockland Industries Inc, US Court of Appeal (4th circuit) 21st June 2002, 00-1125 CISG Online Case No 625 <https://www.courtlistener.com/opinion/1007810/schmitz-werke-gmbh-v-rockland-industries/ > accessed 22nd July 2025.[40] Schmitz-Werke GmbH & Co. KG v Rockland Industries Inc, US Court of Appeals (4th Cir), 21 June 2002, 00-1125, CISG-online Case No 625 < https://cisg-online.org/files/cases/6581/fullTextFile/62537962382.pdf > accessed 22nd July 2025.[41] Yasutoshi Ishida, ‘Identifying Fundamental Breach of Articles 25 and 49 of the CISG: The Good faith Duty of Collaborative Efforts to Cure Defects – Make the Parties Draw a Line in the Sand of Substantiality’ (2020) Vol 41 Michigan Journal of International Law 63 <https://repository.law.umich.edu/mjil/vol41/iss1/3/ > accessed 23rd July 2025.[42] Robert Koch The Concept of Fundamental Breach of Contract under the United Nations Convention on Contracts for the International sale of Goods (CISG) (Kluwer Law International 1999) 177, 218-219 <https://iicl.law.pace.edu/sites/default/files/cisgfiles/koch.html#II > accessed 22nd July 2025.[43] CISG Advisory Council Opinion No 5, ‘The Buyer’s Right to Avoid the Contract in Case of Non-Conforming Goods or Documents’ (2005) para 4.3.[44] Article 7(1) CISG.[45] Robert Koch The Concept of Fundamental Breach of Contract under the United Nations Convention on Contracts for the International sale of Goods (CISG) (Kluwer Law International 1999) 177, 207
<https://iicl.law.pace.edu/sites/default/files/cisgfiles/koch.html#II > accessed 22nd July 2025.[46] Yasutoshi Ishida, ‘Identifying Fundamental Breach of Articles 25 and 49 of the CISG: The Good faith Duty of Collaborative Efforts to Cure Defects – Make the Parties Draw a Line in the Sand of Substantiality ‘(2002) Vol 41 Michigan Journal of International Law 63, 69-70 < https://repository.law.umich.edu/mjil/vol41/iss1/3/ > accessed 23rd July 2025.[47] Article 4.1(2) UNIDROIT Principles.[48] Arbitral Award, Zürich Chamber of Commerce (25 November 1994), UNILEX Case No 642 <https://www.unilex.info/principles/case/642 > accessed 22nd July 2025.[49] Indira Carr and Peter Stone International Trade Law (Sixth Edition, Routledge 2018) 92.[50] Beate Gsell, Article 25, in Kommentar Zum Un-Kaufrecht (CISG) Rn. 2 (Heinrich Honsell
Ed 2010); Peter Huber, ‘Typically German? Two Contentious German Contributions to the CISG’Belgrade Law Review No 3 (2011) 1, 150 – 161 < https://anali.rs/xml/201-/2011c/2011-3e/Annalssveska201159-3.pdf > accessed 23rd July 2025.[51] UNCITRAL CLOUT database Germany (2021).[52] Bundesgerichtshof [BGH] [Federal Court of Justice] Apr. 3, 1996, VIII ZB 51/95.[53] Bundesgerichtshof [German Supreme Court], VIII ZR 51/95 (3 April 1996) < https://cisg-online.org/files/cases/6113/translationFile/13513548459.pdf > accessed 22nd July 2025.[54] Bruno Zeller, ‘Fundamental Breach and the CISG – A Unique Treatment or Failed Experiment?’ (2004) Vol 8 Vindobona Journal of International Commercial Law and Arbitration 81; Robert Koch, ‘The Concept of Fundamental Breach of Contract under the CISG’ (1999) Review of the Convention 177.[55] Oberlandesgericht Düsseldorf, 2 July 1993, 6 U 152/92, CISG-online Case No. 83 (Industrial Ink-Jet Printers Case) < https://cisg-online.org/search-for-cases?caseId=6981 > accessed 22nd July 2025.[56] Ingeborg Schwenzer (ed), Commentary on the UN Convention on the International Sale of Goods (CISG) (Fourth Edition, Oxford University Press 2016) 424, Art 25 para 13.[57] Franco Ferrari, ‘Fundamental Breach of Contract under the UN Sales Convention: 25 Years of Article 25 CISG’ CHAPTER FIVE The Buyers Right of Avoidance and the Requirement of Fundamental Breach p 250.[58] Franco Ferrari, ‘Fundamental Breach of Contract Under the UN Sales Convention: 25 Years of Article 25 CISG’ (2006) 25 Journal of Law and Commerce 489, 499–500.[59] Robert Koch, ‘The Concept of Fundamental Breach of Contract under the United Nations Convention on Contracts for the International Sale of Goods (CISG)’ [1999] at the Pace Institute of International Commercial Law 177.[60] Yasutoshi Ishida, ‘CISG Article 25: A Functional Analysis of the Threshold of Fundamental Breach’ (2020) Vol 25 Uniform Law Review 337, 362–365[61] Qiao Liu, ‘The Chinese Judicial Approach to CISG Article 25: A Uniformity Assessment’, in Francesca Benatti, Sergio García Long & Filippo Viglione (eds), *The Transnational Sales Contract *(Wolters Kluwer 2022) 459–486.[62] Qiao Liu and Xiang Ren, ‘CISG in Chinese Courts: The Issue of Applicability’ (2017) Vol 65 The American Journal of Comparative Law 873.[63] Pittman B Potter China’s Legal System (Cambridge, Malden Polity Press 2013) pp 45-48.[64] Randall Peerenboom China’s Long March Toward Rule of Law(Cambridge University Press 2002) pp 89-94.[65] Larry A DiMatteo, Marta Infantino, Jingen Wang and Paola Monaco, ‘Once More Unto the Breach: A Comparative Analysis of the Meaning of Breach in Contract Law’ (2022) Vol 31 CISG Online 33, 45–48 < https://cisg-online.org/files/commentFiles/DiMatteoInfantinoWangMonaco31TLCP202233.pdf > accessed 23rd July 2025.[66] Cour de cassation [Cass.] [supreme court of judicial matters] com., Mar. 22, 2016, Bull. civ. (Fr.);Cour d’appel [CA] [regional court of appeal] Bordeaux, June 27, 2011 (Fr.); Cour d’appel [CA][regional court of appeal] Paris, civ., June 14, 2001, 98/38724, D. 2005 Somm. 2281 (Fr.) (confirmedby Cour de cassation [Cass.] [supreme court for judicial matters] com., Sept. 24, 2003, Bull. civ. IV,
No. 139 (Fr.)).[67] Cour de cassation [Cass.] [supreme court of judicial matters] com., July 9, 2019, Bull. civ.(Fr.); Cour de cassation [Cass.] [supreme court for judicial matters] com., Mar. 26, 2013, Bull. civ.IV, No. 46 (Fr.); Cour d’appel [CA] [regional court of appeal] Grenoble, civ., Oct. 21, 1999, D. 2000Somm. (Fr.); Cour d’appel [CA] [regional court of appeal] Grenoble, com., Feb. 22, 1995, 11/01518(Fr.).; Tribunal de grande instance [TGI] [ordinary court of original jurisdiction] Strasbourg, Dec.22, 2006, 04/00925 (Fr.).[68] Cour de cassation [Cass.] [supreme court of judicial matters] com., July 9, 2019, Bull. civ.(Fr.).; Cour de cassation [Cass.] [supreme court for judicial matters] com., Mar. 26, 2013, Bull. civ.IV, No. 46 (Fr.).; Cour d’appel [CA] [regional court of appeal] Versailles, civ., Jan. 29, 1998, 1222/95 (Fr.).[69] Cour de cassation [Cass.] [supreme court for judicial matters] com., Mar. 26, 2013, Bull. civ. IV,No. 46 (Fr.).; Cour d’appel [CA] [regional court of appeal] Lyon, civ., Feb. 4, 2011, 11/01518 (Fr.);Cour d’appel [CA] [regional court of appeal] Paris, civ., June 14, 2001, 98/38724, D. 2005 Somm.2281 (Fr.); Cour d’appel [CA] [regional court of appeal] Versailles, civ., Jan. 29, 1998, 1222/95 (Fr.)[70] John E Murray Jr ‘The Neglect of CISG: A Workable Solution’ (1998) Vol 17 Journal of Law and Commerce 365.[71] Larry A DiMatteo, Marta Infantino, Jingen Wang and Paola Monaco, ‘ Once More Unto the Breach: A Comparative Analysis of the Meaning of Breach in Contract Law’ (2022) Vol 31 CISG Online 33, 45–48 < https://cisg-online.org/files/commentFiles/DiMatteoInfantinoWangMonaco31TLCP202233.pdf > accessed 23rd July 2025.[72] UNCITRAL Digest on CISG < https://cisg-online.org/search-for-cases/uncitral-digest-on-the-cisg > accessed 23rd July 2025.[73] Indira Carr and Peter Stone International Trade Law (Sixth Edition, Routledge 2018) 84.[74] Cobalt Sulphate Case (VIII ZR 51/95) 3 April 1996 [17]-[22] [23].

[75] Qiao Liu and Xiang Ren, ‘CISG in Chinese Courts: The Issue of Applicability’ (2017) Vol 65 The American Journal of Comparative Law 873.[76] Larry A DiMatteo, Marta Infantino, Jingen Wang and Paola Monaco ‘Once More Unto the Breach: A Comparative Analysis of the Meaning of Breach in Contract Law’ (2022) Vol 31 CISG Online 33, 45–48 < https://cisg-online.org/files/commentFiles/DiMatteoInfantinoWangMonaco31TLCP202233.pdf > accessed 23rd July 2025.[77] Yasutoshi Ishida ‘Identifying Fundamental Breach of Articles 25 and 49 of the CISG: The Good faith Duty of Collaborative Efforts to Cure Defects – Make the Parties Draw a Line in the Sand of Substantiality’ (2020) Vol 41 Michigan Journal of International Law 63, 103-106 <https://repository.law.umich.edu/mjil/vol41/iss1/3/ > accessed 23rd July 2025[78] Larry A DiMatteo, Marta Infantino, Jingen Wang and Paola Monaco ‘Once More Unto the Breach: A Comparative Analysis of the Meaning of Breach in Contract Law’ (2022) Vol 31 CISG Online 33, 54–55 < https://cisg-online.org/files/commentFiles/DiMatteoInfantinoWangMonaco31TLCP202233.pdf > accessed 23rd July 2025.

BIBLIOGRAPHY

Primary sourcesCasesInternational casesAmericanSchmitz-Werke GmbH & Co. KG v Rockland Industries Inc, US Court of Appeals (4th Cir), 21 June 2002FrenchCour d’appel [CA] [regional court of appeal] Grenoble, com., Feb. 22, 1995, 11/01518 (Fr.)Cour d’appel [CA] [regional court of appeal] Versailles, civ., Jan. 29, 1998, 1222/95 (Fr.)Cour d’appel [CA] [regional court of appeal] Grenoble, civ., Oct. 21, 1999, D. 2000 Somm. (Fr.)Cour d’appel [CA] [regional court of appeal] Paris, civ., June 14, 2001, 98/38724, D. 2005 Somm. 2281 (Fr.)Cour d’appel [CA][regional court of appeal] Paris, civ., June 14, 2001, 98/38724, D. 2005 Somm. 2281 (Fr.) (confirmed by Cour de cassation [Cass.] [supreme court for judicial matters] com., Sept. 24, 2003, Bull. civ. IV, No. 139 (Fr.))Cour d’appel [CA] [regional court of appeal] Bordeaux, June 27, 2011 (Fr.)Cour d’appel [CA] [regional court of appeal] Lyon, civ., Feb. 4, 2011, 11/01518 (Fr.)Cour de cassation [Cass.] [supreme court for judicial matters] com., Mar. 26, 2013, Bull. civ. IV, No. 46 (Fr.)Cour de cassation [Cass.] [supreme court of judicial matters] com., Mar. 22, 2016, Bull. civ. (Fr.)Cour de cassation [Cass.] [supreme court of judicial matters] com., July 9, 2019, Bull. civ. (Fr.)
International Chambers of Commerce - ICC Case No 11849 (Final Award 2003)Tribunal de grande instance [TGI] [ordinary court of original jurisdiction] Strasbourg, Dec.22, 2006, 04/00925 (Fr.)Cour d’appel [CA] [regional court of appeal] Paris, civ., June 14, 2001, 98/38724, D. 2005 Somm. 2281 (Fr.) (confirmed by Cour de cassation [Cass.] [supreme court for judicial matters] com., Sept. 24, 2003, Bull. civ. IV,No. 139 (Fr.))GermanBundesgerichtshof [BGH] [Federal Court of Justice] Apr. 3, 1996, VIII ZB 51/95Bundesgerichtshof [German Supreme Court], VIII ZR 51/95 (3 April 1996)Cobalt Sulphate Case (VIII ZR 51/95) 3 April 1996Oberlandesgericht Düsseldorf, 2 July 1993, 6 U 152/92, CISG-online Case No. 83 (Industrial Ink-Jet Printers Case)SwissArbitral Award, Zürich Chamber of Commerce (25 November 1994), UNILEX Case No 642LegislationUnited Nations Convention on Contracts for the International Sale of Goods

Secondary Sources

Andersen C, ‘The Uniform International Sales Law and the Global Jurisconsultorium’ The University of Western Australia (2005)Bhat P I, ‘Doctrinal Legal Research as a Means of Synthesizing Facts, Thoughts, and Legal Principles’ in Idea and Methods of Legal Research (Oxford University Press 2020)Bonnell and Ligouri, ‘The UN Convention on the International Sale of Goods: A Critical Analysis of Current International Case Law’ (1997) Vol 2 Revue de Droit UniformeCarr I and Stone P International Trade Law (Sixth Edition, Routledge 2018)CISG Advisory Council Opinion No 5, ‘The Buyer’s Right to Avoid the Contract in Case of Non-Conforming Goods or Documents’ (2005)CISG Advisory Council Opinion No 20 ‘Hardship Under the CISG’Conde I ‘Regard Is To Be Had: The Legislative Intent of Article 7(1) of the CISG (Part 1)’ European Journal of Commercial Contract LawDiMatteo L A ‘Formal and Operative Rules of the CISG: Case of Article 25’ (2025) Vol 43 Journal of Law and CommerceDiMatteo L A, Infantino M, Wang J and Monaco P ‘Once More Unto the Breach: A Comparative Analysis of the Meaning of Breach in Contract Law’ (2022) Vol 31 CISG Online
<https://cisgonline.org/files/commentFiles/DiMatteoInfantinoWangMonaco31TLCP202233.pdf> accessed 23rdJuly 2025Duck-Mayr J B, ‘Explaining Legal Inconsistency’ (2022) Vol 34 Journal of Theoretical PoliticsFranco Ferrari ‘Fundamental Breach of Contract under the UN Sales Convention: 25 Years of Article 25 CISG’ CHAPTER FIVE The Buyers Right of Avoidance and the Requirement of Fundamental BreachFerrari F, ‘Fundamental Breach of Contract Under the UN Sales Convention: 25 Years of Article 25 CISG’ (2006) 25 Journal of Law and CommerceGlossary ‘Affirmative Defence’ Thomson Reuters Practical Law < https://uk.practicallaw.thomsonreuters.com/6-518-1993?comp=pluk&transitionType=Default&contextData=(sc.Default)&OWSessionId=9b440b92e769407da29e036ce3a742a6&skipAnonymous=true&firstPage=true > accessed 20th July 2025Gsell B Article 25, in Kommentar Zum Un-Kaufrecht (CISG) Rn. 2 (Heinrich Honsell Ed 2010)Huber P ‘Standard Terms Under the CISG’ [2009] Vindobona Journal of International Commercial Law of Arbitration [2009] <https://iicl.law.pace.edu/sites/default/files/cisgfiles/huber2.html > accessed 22nd July 2025Huber P, ‘Typically German? Two Contentious German Contributions to the CISG’ Vindobona Journal of International Commercial Law of Arbitration [2009] <https://iicl.law.pace.edu/sites/default/files/cisgfiles/huber2.html > accessed 22nd July 2025Belgrade Law Review No 3 (2011) 1, 150 – 161 < https://anali.rs/xml/201-/2011c/2011-3e/Annalssveska201159-3.pdf > accessed 23rd July 2025Hutchinson T, ‘The Doctrinal Method: Incorporating Interdisciplinary Methods in Reforming the Law’ [2015] Erasmus Law Review 130<https://www.academia.edu/115517526/TheDoctrinalMethodIncorporatingInterdisciplinaryMethodsinReformingtheLaw> accessed 19th July 2025Ishida Y, ‘CISG Article 25: A Functional Analysis of the Threshold of Fundamental Breach’ (2020) Vol 25 Uniform Law ReviewIshida Y, ‘Identifying Fundamental Breach of Articles 25 and 49 of the CISG: The Good faith Duty of Collaborative Efforts to Cure Defects – Make the Parties Draw a Line in the Sand of Substantiality’ (2020) Vol 41 Michigan Journal of International Law <https://repository.law.umich.edu/mjil/vol41/iss1/3/ > accessed 23rd July 2025Ishida Y, ‘What Does “Foreseeable” Mean, The Scope of Damages Under CISG Articles 74-77: Reasonability Principle of Foreseeability – We Don’t Need a Crystal Ball’ (2022) Vol 40 Journal of Law and CommerceKalaitsoglou K, ‘Article 7 CISG – An Interpretation Challenge or A Pretext for Non-Adoption? The CISG through UK Lenses’ 13th June 2022 The Legal Compass JournalKoch R, ‘The Concept of Fundamental Breach of Contract under the CISG’ (1999) Review of the ConventionKoch R, ‘The Concept of Fundamental Breach of Contract under the United Nations Convention on Contracts for the International Sale of Goods (CISG)’ [1999] at the Pace Institute of International Commercial LawKoch R The Concept of Fundamental Breach of Contract under the United Nations Convention on Contracts for the International sale of Goods (CISG) (Kluwer Law International 1999)Kröll S, Mistelis L, del Pilar M Viscacillas P The UN Convention on Contracts for the International Sale of Goods (CISG) Commentary (New Edition, Hart Publishing 2011)Liu C The Concept of Fundamental Breach: Perspectives from the CISG, UNIDROIT Principles and PECL(2nd Edition, IICL 2005)Liu Q and Ren X, ‘CISG in Chinese Courts: The Issue of Applicability’ (2017) Vol 65 The American Journal of Comparative LawLiu Q, ‘The Chinese Judicial Approach to CISG Article 25: A Uniformity Assessment’, in Benatti F, Long S G & Viglione F (eds), *The Transnational Sales Contract *(Wolters Kluwer 2022)Lubbe G, ‘Fundamental Breach under CISG: A Source of Fundamentally Divergent Results’ [2004] The Rabel Journal of Comparative and International Private LawMagnus U, ‘The Remedy of Avoidance Under CISG – General Remarks and Special Cases’ UNCITRAL < https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/magnus.pdf > accessed 23rd July 2025Murray Jr J E, ‘The Neglect of CISG: A Workable Solution’ (1998) Vol 17 Journal of Law and Commerce 365Peerenboom R China’s Long March Toward Rule of Law (Cambridge University Press 2002)Potter P B China’s Legal System (Cambridge, Malden Polity Press 2013)Rizzo de Barros A P S C, ‘Definition of Fundamental Breach under CISG’s Article 25 and Analysis of Recent Case Law’ Institute of Commercial LawSchroeter U G, ‘General Principles of CISG Interpretation’ (2007) Vol 22 Pace International Law ReviewSchwenzer I, ‘The CISG Advisory Council’ CISG Online 1, pp 6-7 < https://cisg-online.org/files/commentFiles/SchwenzerTheCISGAdvisoryCouncil20173.pdf >Schwenzer I and Hachem P, ‘The CISG – Successes and Pitfalls’ (2009) Vol 57 The American Journal of Comparative LawSchwenzer I and Schroeter U CISG Article 25 - Commentary on the UN Convention on the International Sale of Goods (Oxford University Press 2022).Schwenzer I (ed), Commentary on the UN Convention on the International Sale of Goods (CISG) (Fourth Edition, Oxford University Press 2016)Spaic A, ‘Interpreting Fundamental Breach’ from International Sales Law a Global Challenge (Cambridge University Press 2014)UNCITRAL Digest on CISG < https://cisg-online.org/search-for-cases/uncitral-digest-on-the-cisg > accessed 23rd July 2025UNIDROIT PRINCIPLESZeller B Damages Under the Convention on Contracts for the International Sale of Goods (Third Edition, 2018)Zeller B, ‘Fundamental Breach and the CISG – A Unique Treatment or Failed Experiment?’ (2004) Vol 8 Vindobona Journal of International Commercial Law and ArbitrationZwart S G, ‘The New International Law of Sales: A Marriage Between Socialist, Third World, Common and Civil Law Principles’ (1988) Vol 13 North Carolina Journal of International Law

Cite this work (OSCOLA)
Elaine Obika, 'Article 25: Reconciling its interpretative divergence in the CISG*' (2025) Volume 3 Issue 4 Menara Aspen Advisory Journal eMAAJ11itl [pinpoint] <https://maajana1.carrd.co/#articletwofive> accessed [Day Month Year].'

Published by Menara Aspen Advisory London England United Kingdom.
MENARA ASPEN ADVISORY LTD – AUTHORED WORK NOT FOR REPRODUCTION OR DISTRIBUTION

Menara Aspen Advisory Journal ISSN 2979-1723

Can Autonomy Survive Trumps Tariffs?

Press Cmd + F (Mac) or Ctrl + F (Win) to find keywords.

Article No: eMAAJ13itl
Category: itl (international trade law)
Published: October 2025
Author: Elaine Obika

Abstract

This article examines how the 2025 U.S. tariff regime challenged the stability of the Autonomy Principle (AP) and the Strict Doctrine of Compliance (SDC) in documentary credit practice. Traditionally viewed as insulated from political and economic turbulence, these doctrines rely on the independence of the credit from the underlying contract and on exact compliance with documentary requirements. The introduction of wide‑ranging tariffs on over sixty countries, including the UK, disrupted this commercial neutrality by altering cost structures, increasing regulatory scrutiny, and creating uncertainty around document acceptability. Banks, positioned between doctrinal obligations and heightened commercial risk, faced new pressures that tested the functional resilience of AP and SDC. The UK’s restrained diplomatic response helped preserve doctrinal stability within English law, while other jurisdictions adopted more confrontational approaches. The analysis concludes that although AP and SDC remain doctrinally intact, their practical operation is increasingly exposed to geopolitical forces. Their continued viability depends not on legal insulation alone but on the broader strategic choices states make in managing trade conflict.

Keywords

Autonomy Principle; Strict Compliance; Documentary Credits; Tariffs; International Trade; Banking Law; Political Risk; English Law.

Introduction

[p1] The Autonomy Principle and the Strict Doctrine of Compliance have long been regarded as the stabilising pillars of documentary credit practice — doctrines designed to shield commercial transactions from political turbulence and contractual disputes. Their authority rests on a simple premise: banks deal in documents, not goods, motives, or geopolitical pressures. Yet the 2025 U.S. tariff regime disrupted this carefully insulated landscape. By transforming trade measures into instruments of political leverage, the tariff shift exposed the vulnerability of doctrines traditionally assumed to operate above the fray. This article examines how far the Autonomy Principle and Strict Compliance can withstand such external shocks, and whether their continued operation reflects doctrinal resilience or merely the hope that law can remain neutral in an increasingly politicised trading environment.

[p2] The tariff shift did more than unsettle diplomatic relations — it recalibrated the commercial environment in which documentary credits operate. Transactions that once moved predictably through banking channels were suddenly exposed to fluctuating duties, origin‑based scrutiny, and heightened regulatory intervention. For traders, this meant recalculating margins mid‑performance; for banks, it meant reassessing the risk profile of credits that, on paper, still complied with their terms. The very conditions that allow the Autonomy Principle and Strict Compliance to function — stability, neutrality, and documentary certainty — were strained by a landscape in which political decisions could alter the commercial value of a credit overnight. It is within this altered terrain that the resilience of these doctrines must be assessed.

[p3] Against this backdrop, the legal question becomes unavoidable: how do the Autonomy Principle and Strict Compliance operate when the commercial environment they presuppose is destabilised by geopolitical intervention? The doctrines themselves have not changed — their language, logic, and judicial treatment remain intact — but the conditions under which they are applied have shifted. To understand whether they can withstand this pressure, the analysis must return to their doctrinal foundations: the independence of the credit, the bank’s documentary mandate, and the limits of external interference. Only by examining these principles in their pure form can we assess how far they bend, and whether they risk breaking, when confronted with politically charged trade measures.

[p4] At the heart of documentary credit law lies the Autonomy Principle, the rule that the credit stands independent from the underlying sales contract. Its purpose is certainty: the bank’s obligation is triggered by the presentation of conforming documents, not by disputes about performance, quality, or external regulatory conditions. The Strict Doctrine of Compliance reinforces this by requiring that documents match the credit terms precisely, leaving banks with no evaluative discretion. Together, these doctrines create a closed documentary universe in which commercial risk is allocated predictably and political developments remain irrelevant. Their strength has always been their insulation. Yet insulation presupposes stability, and the 2025 tariff regime forces a reconsideration of whether these principles can operate as intended when external conditions shift rapidly and unpredictably.

[p5] The Autonomy Principle (hereinafter AP) and Strict Doctrine of Compliance (hereinafter SDC) are often treated as doctrinal fortresses - immune to external interference, politically neutral and commercially reliable. [1] But Trump’s 2025 tariff regime exposed their fragility. [2] When trade becomes politicised, can these principles function as intended?[p6] Trumps “Liberation Day” strategy imposed sweeping tariffs on 60 countries, including the UK. A 10% baseline duty was introduced, alongside 25% sector-specific tariffs on steel and cars exceeding quota thresholds. These measures were not just economic, they were political tools used to leverage immigration policy, [3] drug enforcement [4] and diplomatic pressure. [5] [6][p7] This shift destabilised the commercial terrain the AP and SDC rely on. Documentary credits are meant to operate independently of the underlying sales contract. Banks honour them based on the documents alone not on the performance of the contract or the legality of the goods. [7] SDC reinforces this by requiring exact compliance with credit terms – no discretion, no deviation. [8][p8] But tariffs disrupt this neutrality. They alter cost structures mid-transaction, raise questions about origin and classification and introduce regulatory scrutiny that makes even technically complying documents appear “unclean”. Banks caught between doctrinal obligation and commercial risk, may hesitate to honour credits that now carry political baggage. [9] [10][p9] The UK’s response was strategic restraint. [11] Rather than retaliate, it pursued quota negotiations and diplomatic engagement. Some businesses criticised Starmer’s approach, fearing it signalled weakness. [12] But legally, this restraint helped preserve the operational integrity of AP and SDC within English law. By avoiding escalation, the UK allowed its banks to continue honouring credits without politicising their obligations.[p10] Other jurisdictions chose differently. China [13] Canada and EU [14] imposed counter-tariffs asserting sovereignty and challenging unilateralism. [15][p11] So, can AP and SDC survive Trump’s tariffs?Doctrinally, yes. Functionally, it is being stress-tested. [16] The AP and SDC remains standing – but their insulation from political risk now looks more like strategic hope that legal certainty. [17] English law’s response suggests that AP and SDC are not untouchable ideals, but the most realistic anchors in an increasingly politicised trade landscape.

Conclusion

[p12] Ultimately, the question is not whether the Autonomy Principle and Strict Compliance can survive periods of geopolitical volatility — doctrinally, they can and do. The deeper issue is whether their continued operation depends on the stability of the commercial environment or on the strategic choices states make when that stability is threatened. The 2025 tariff regime revealed that these doctrines endure not because they are hermetically sealed from political forces, but because jurisdictions like England chose not to escalate the conflict in ways that would have dragged banks into political decision‑making. In this sense, the resilience of AP and SDC is less a testament to doctrinal invulnerability than to the practical recognition that, in a politicised trade landscape, legal certainty is a scarce commodity worth protecting. Their survival, therefore, reflects both the strength of the doctrines and the fragility of the environment in which they operate — a reminder that autonomy in international trade law is never absolute, but always contingent on the world around it.

In the end, the survival of autonomy may depend less on doctrine than on the discipline to protect it.

SOURCES[1] Power Curber International Ltd v International Bank of Kuwait [1981] 1 WLR 1233 [1241] (Lord Denning MR); Equitable Trust Co of New York v Dawson Partners Ltd (1927) 27 LIL Rep 49 [p52] (Lord Sumner); Moralice (London) Ltd v ED and F Man [1954] 2 Lloyds Rep 526 (McNair J); J H Rayner & Co Ltd v Hambros Bank Ltd [1943] 1 KB 37 [p 40] (Mackinnon LJ); Uniform Customs and Practice of Documentary Credits (UCP) 600 article 5; The Doctrine of Strict Compliance: Its Development and Current Construction’ in Francis D Rose (ed), Lex Mercatoria: Essays on International Commercial Law in Honour of Francis Reynolds (LLP 2000).[2] Dr Linda Yeuh, ‘Expert Comment: Why Has Trump Launched So Many Tarrifs and Will it Cause a Recession?’ 4th April 2025 University of Oxford – News and Events < https://www.ox.ac.uk/news/2025-04-04-expert-comment-why-has-trump-launched-so-many-tariffs-and-will-it-cause-recession > accessed 11th September 2025.[3] Voices, ‘Trumps Tariffs, Threats Fir Growing Global Phenomenon: Hardball Migration Diplomacy’ 3rd February 2025 UPI < https://www.upi.com/Voices/2025/02/03/migration-diplomacy-tariffs-trump/8921738593235/ accessed 11th September 2025.[4] Silobreaker Research Team ‘Trumps Use of Tariffs for Foreign Policy Leverage’ 10th September 2025 Silobreaker < https://www.silobreaker.com/blog/cyber-threats/trumps-use-of-tariffs-for-foreign-policy-leverage/ .> accessed 11th September 2025.[5] Silobreaker Research Team ‘Trumps Use of Tariffs for Foreign Policy Leverage’ 10th September 2025 Silobreaker < https://www.silobreaker.com/blog/cyber-threats/trumps-use-of-tariffs-for-foreign-policy-leverage/ .> accessed 11th September 2025.[6] Jennifer Clarke, ‘What Tariffs Has Trump Announced and Why?’ 3rd February 2025 BBC News < https://www.bbc.co.uk/news/articles/cn93e12rypgo > accessed 11th September 2025.[7] Indira Carr and Peter Stone International Trade Law (Sixth Edition, Routledge 2018) 464.[8] Stefano Ferrero, ‘Some Considerations On The Doctrine of Strict Compliance And The Autonomy Principle in Documentary Credit’ (2013) Vol 25 Business Jus < https://www.businessjus.com/wp-content/uploads/2014/05/Some-considerations-on-the-doctrine-of-strict-compliance-and-the-autonomy-principle-in-documentary-credit.pdf > accessed 6th September 2025.[9] Costas Milas, ‘Trump’s Tariff Wars and Their Impact and their Impact on the UK Economy in Five Graphs’ 24th March 2025 London’s School of Economics < https://blogs.lse.ac.uk/businessreview/2025/03/24/trumps-tariff-wars-and-their-impact-on-the-uk-economy-in-five-graphs/ > accessed 11th September 2025.[10] Anita Hawser, ‘Trade Finance to Rebound Despite Tariff Uncertainty, Say Experts’ 11th February The Banker < https://www.thebanker.com/content/4d6a1e51-59b2-488b-aeef-97a4f65948e6 > accessed 11th September 2025.[11] BBC News, ‘Trade War Should Not be UK’s First Response to Tariffs’ 2nd April 2025 BBC News’ < https://www.bbc.co.uk/news/articles/c4grm90119xo > accessed 11th September 2025.[12] Mille Cooke and Archie Mitchell, ‘Starmer Scrambles to Secure Deal To Escape Trump’s Tariffs’ 13th March 2025 INDEPENDENT < https://www.independent.co.uk/news/uk/politics/trump-tariffs-keir-starmer-trade-deal-b2714293.html > accessed 11th September 2025.[13] Stephen McDonnell, ‘Why Beijing Is Not Backing Down On Tariffs’ 11th April 2025 BBC News’ <https://www.bbc.co.uk/news/articles/cjew7y4j724o .> accessed 11th September 2025.[14] Francoise-Charles Lepravote, Wanjie Lin and Kimia Vaye, ‘The EU’s Latest Response to Trump II Tariffs’ 16th April 2025 CLEARLY GOTLIEB <https://www.clearytradewatch.com/2025/04/the-eus-latest-response-to-trump-ii-tariffs/ > accessed 11th September 2025.[15] Jacqueline Howard edited by Emily McGarvey ‘Major US Stocks See Biggest Losses Since 2020 After Trump’s Tariff Announcement’ 2ndApril 2025 BBC News < https://www.bbc.co.uk/news/live/c1dr7vy39eet > accessed 11th September 2025.[16] Nicholas Bloom, Philip Bunn, Paul Mizen, Veenaa Sasikaran, Krishan Shah, Gregory Thwaite and Ivan Yotzov ‘The Impact of the US Tariff Announcements on UK Firms' 27th July 2025 VOXEU < https://cepr.org/voxeu/columns/impact-2025-us-tariff-announcements-uk-firms > accessed 11th September 2025.[17] Jun Du and Oleksandr Shepotylo, ‘Tariffs and Triumph: The UK’s Edge in a Fractured World’ < https://www.aston.ac.uk/research/bss/research-centres/business-prosperity/fractured-world > accessed 11th September 2025.

Cite this work (OSCOLA)
Elaine Obika, 'Can Autonomy Survive Trumps Tariffs?' (2025) Volume 3 Issue 6 Menara Aspen Advisory Journal eMAAJ13itl [pinpoint] <https://maajana1.carrd.co/#trumpstariffs> accessed [Day Month Year].'

Published by Menara Aspen Advisory London England United Kingdom.
MENARA ASPEN ADVISORY LTD – AUTHORED WORK NOT FOR REPRODUCTION OR DISTRIBUTION

Menara Aspen Advisory Journal ISSN 2979-1723

ADR in Cross Border Contracts

Press Cmd + F (Mac) or Ctrl + F (Win) to find keywords.

MENARA ASPEN ADVISORY LTD AUTHORED WORK - NOT FOR REPRODUCTION OR DISTRIBUTION

Article No: eMAAJ10itl
Category: itl (international trade law)
Published: 8th October 2025
Author: Elaine Obika

Abstract

This article evaluates the appropriateness of Alternative Dispute Resolution (ADR) mechanisms in resolving disputes arising from cross‑border commercial contracts, particularly those involving the international carriage of goods by sea and the international sale of goods. While arbitration and mediation are often presented as efficient and commercially attuned alternatives to litigation, their suitability is highly context‑dependent. The analysis examines the procedural flexibility, confidentiality, and enforceability that make ADR attractive in international trade, alongside the limitations posed by cost, complexity, jurisdictional culture, and enforcement architecture. Arbitration’s dominance—supported by institutions such as the ICC, LCIA, and SIAC, and reinforced by the New York Convention—is contrasted with the more modest uptake of mediation despite the emergence of the Singapore Convention. The article argues that neither arbitration nor mediation offers a universally optimal solution; rather, their effectiveness depends on the nature of the dispute, the governing legal framework, and the strategic priorities of the parties. It concludes that hybrid and digitally enabled models represent a pragmatic evolution, suggesting that the future of cross‑border dispute resolution lies not in choosing between ADR and litigation, but in deploying them in complementary and context‑sensitive ways.

Key Insights

ADR is not inherently superior to litigation in cross‑border trade disputes its effectiveness depends on dispute type, enforcement architecture, and commercial context.Arbitration dominates international trade disputes due to enforceability under the New York Convention and strong institutional support (ICC, LCIA, SIAC), but its cost and procedural complexity limit universal suitability.Mediation remains underutilised despite the Singapore Convention’s attempt to strengthen enforceability; its voluntary nature and limited authority make it less effective in high‑stakes or rights‑heavy disputes.Carriage and sale contracts present distinct challenges, shaped by frameworks such as the Hague‑Visby Rules and the CISG, requiring tailored dispute resolution strategies rather than a one‑size‑fits‑all approach.Hybrid and digital models (Med‑Arb, ODR) represent the emerging direction of cross‑border dispute resolution, blending flexibility with enforceability.The optimal mechanism is context‑dependent, requiring parties to choreograph a resolution strategy aligned with commercial priorities, legal integrity, and global enforceability.

Keywords

ADR; Arbitration; Mediation; International Trade; Cross‑Border Contracts; Carriage of Goods; CISG; Hague‑Visby Rules; New York Convention; Singapore Convention.

SECTION 1: INTRODUCTION[p1] In the theatre of global commerce, Alternative Dispute Resolution (hereinafter “ADR") is not merely procedural – it is strategic. This essay interrogates the claim that ADR is appropriate for resolving disputes in international trade contracts, arguing that while often effective its suitability is contingent upon dispute type, enforcement architecture and commercial context.[p2] Arbitration and mediation have gained prominence as mechanisms for resolving disputes arising from complex cross-border contracts [1] - particularly those governing the international carriage of goods by sea [2] and the international sale of goods. [3] These contracts are inherently complex, cross-jurisdictional and commercially sensitive, engaging frameworks such as the Hague Visby Rules [4] and the CISG. [5] Both contract types present unique challenges [6] that make the choice of dispute resolution mechanism particularly consequential[p3] Traditional litigation, with its jurisdictional rigidity, public nature and exposure to scrutiny is increasingly viewed as ill-suited to the demands of global trade. [7] In contrast ADR offers flexibility, confidentiality, and procedural autonomy, making it an attractive alternative for commercial actors. [8][p4] Arbitration has become the dominant method for resolving international trade disputes, [9] supported by institutional frameworks such as the International Chamber of Commerce (hereinafter ICC), [10] the London Court of International Arbitration (hereinafter LCIA) [11] and the Singapore International Arbitration Centre (hereinafter SIAC). [12] Its enforceability under the New York Convention (1958) [13] and its adaptability to party choice of law and forum make it especially suitable for contracts involving carriage of goods and sale of goods across borders. Mediation while less prevalent, appears to have gained traction following the Singapore Convention on Mediation (2019), [14] which seeks to make mediated settled agreements enforceable internationally.[p5] However, the appropriateness of ADR mechanisms is not absolute. Their effectiveness depends on jurisdictional culture, enforcement reliability and the nature of the dispute. For example, while arbitration may offer finality [15] and neutrality [16] it can be costly and procedurally complex. [17] [18] Mediation, though cost-effective and collaborative, may lack enforceability in certain jurisdictions and it is often underutilised in high-stakes trade disputes. [19]Andrews notes that mediation remains underused in international commercial contexts due to its voluntary nature and limited enforcement power. [20] ICC statistics similarly show that mediation accounts for fewer than 5% of cases in 2023 [21] and 11% in 2024 [22] administered annually, compared to arbitration’s overwhelming dominance – 95.1% in 2023 and 88.9% in 2024. [23][p6] Scholars such as S.I. Strong argue that mediation is increasingly preferred due to its perceived efficiency, [24] while Indira Carr describes arbitration as the privatisation of justice. [25] Yet both claims invite scrutiny. Mediation’s success is not universal, and arbitration, though privately structured, remains tethered to national legal systems and public enforcement regimes. Even the most strategically choreographed arbitration — with careful selection of seat, adjudicators, and procedural rules — remains subject to domestic oversight. Ultimately, the choice between ADR mechanisms is not doctrinally fixed but context-dependent.[p7] A nuanced evaluation reveals that ADR is not a universal solution but a context-sensitive tool that demands strategic deployment and doctrinal scrutiny. The analysis proceeds by first examining the legal and commercial context of international trade disputes, followed by a critical comparison of ADR and litigation, and concluding with an assessment of emerging hybrid models and their implications.SECTION 2: LEGAL AND COMMERCIAL CONTEXT[p8] Understanding the legal and commercial contexts of international trade disputes is essential to evaluating the appropriateness of ADR mechanisms. [26] Contracts involving carriage of and sale of goods often engage intricate regulatory frameworks, [27] jurisdictional tensions and strategic commercial interests. [28]Such contracts are governed by a complex web of legal instruments, [29] commercial practices, [30] and jurisdictional considerations. [31] [32] Disputes arising from such contracts often involve parties from different legal systems, making the choice of dispute resolution mechanism a matter of strategic importance. [33]Contracts for the international carriage of goods by sea are typically governed by standardised instruments such as the Hague-Visby Rules, [34] which regulate the rights and obligations of carriers and shippers. These contracts often incorporate arbitration clauses, particularly in charterparties and bills of lading, [35] where parties seek neutral forums and specialist adjudicators. [36] [37] Maritime disputes may involve technical issues such as seaworthiness, [38] demurrage, [39] or cargo damage, [40] which benefit from the expertise of arbitrators familiar with shipping law and practice.Similarly, contracts for the international sale of goods are frequently governed by the United Nations Convention on Contracts for the International Sale of Goods (CISG), [41] which provides a harmonised legal framework for cross-border transactions. Disputes in this context may concern non-conformity of goods, [42] delayed delivery, [43] or payment failures. [44] ADR mechanisms are often preferred in these cases due to their speed, confidentiality, and commercial sensitivity. [45][p9] The principle of party autonomy [46] affirmed under Rome I, [47] plays a central role in international trade. Parties are free to choose the governing law, forum, and dispute resolution method. [48] This flexibility allows them to tailor dispute resolution clauses to suit the nature of the transaction and the risks involved. [49] Institutions such as the ICC, [50]LCIA, [51] and SIAC [52] offer procedural rules and administrative support that enhance the reliability of ADR processes.However, the global nature of trade also introduces challenges. Jurisdictional conflicts, enforcement issues, and differing procedural norms can complicate dispute resolution. In a globalised landscape, the choice between ADR and litigation is not merely a matter of law – it is a matter of leverage. As illustrated in Alaska Packers [53] case the workers attempt to renegotiate wages mid-performance was legally void due to lack of new consideration – yet the employer’s initial acquiescence reveals how coercion and situational leverage can distort intent. ADR, especially in commercial contexts, often reflects these asymmetries more than doctrinal purity.SECTION 3: ADVANTAGES OF ADR[p10] Alternative Dispute Resolution mechanisms offer several advantages that make them particularly attractive in the context of international trade contracts. [54] Arbitration and mediation, while distinct in process and outcome, share features that respond to the commercial and jurisdictional complexities of cross-border transactions. [55]3.1 Arbitration[p11] One of the most significant advantages of arbitration is the enforceability of awards. Under the New York Convention (1958), [56] arbitral awards are recognised and enforceable in over 170 jurisdictions, providing parties with a reliable mechanism for cross-border enforcement. This is especially valuable in international carriage of goods by sea, where parties may be located in different continents and enforcement through domestic courts may be impractical or uncertain. [57] Beyond the New York Convention, English law provides alternative enforcement routes, including the common law regime [58] and statutory instruments. [59] The 1996 Act [60] lacked provisions for emergency arbitrators and left court powers over third parties unclear. The 2025 reforms [61] address this: sections 41 and 42 enable enforcement of emergency orders, while section 44 confirms court support against third parties. This layered framework underscores the UK’s pro-enforcement stance and reinforces London’s appeal as a seat for maritime and commercial arbitration. [62][p12] Arbitration offers both neutrality and party autonomy. Parties can select arbitrators with expertise in maritime or commercial law, choose the seat of arbitration, and agree on procedural rules. This flexibility mitigates perceived bias and allows parties to tailor proceedings to the dispute’s nature. [63] In shipping contracts, for example, parties often prefer arbitrators with technical knowledge of demurrage, laytime, or vessel performance—areas where domestic judges may lack familiarity.[p13] A doctrinal advantage of arbitration is the separability of the arbitration agreement. [64] This principle ensures that the arbitration clause is treated as legally independent from the main contract, allowing arbitration to proceed even if the underlying contract is alleged to be void, terminated, or breached. In international trade, where allegations of fraud, misrepresentation, or illegality may arise, separability preserves the parties’ chosen forum and prevents tactical litigation aimed at derailing arbitration. As affirmed in Fiona Trust [65] English courts presume that rational commercial parties intend all disputes arising from their relationship to be resolved by the same tribunal. This enhances procedural stability and reinforces party autonomy in complex cross-border transactions.[p14] Another key advantage is confidentiality. [66] Unlike litigation, which is typically public, arbitration proceedings are private. This protects sensitive commercial information and preserves reputational interests, particularly in disputes involving defective goods or contractual breaches. [67] Confidentiality is often a decisive factor for parties engaged in high-value international sales. [68][p15] Arbitration also provides procedural flexibility and finality. [69] Parties can streamline timelines, limit disclosure, and avoid protracted appeals. While the limited scope for appeal [70]may be seen as a disadvantage in some contexts, it also ensures that disputes are resolved efficiently—an important consideration in fast-moving trade environments. [71]3.2 Mediation[p16] Mediation offers a different set of advantages, particularly in preserving commercial relationships. [72] As a non-adjudicative process, mediation encourages cooperation and mutual understanding. [73] This is especially valuable in long-term supply arrangements or shipping partnerships, where maintaining goodwill [74] may be more important than securing a legal victory. [75][p17] Mediation is cost-effective, time-efficient [76] and confidential. [77] [78] [79] Mediation typically involves fewer procedural steps and lower fees than arbitration or litigation. [80] In disputes over delayed delivery or minor contractual breaches, mediation can offer a pragmatic resolution without escalating costs.[p18] Mediation is also flexible and culturally adaptive. [81] Parties can shape the process to reflect their communication styles, cultural norms, and commercial priorities. [82] This adaptability is particularly useful in international sale of goods disputes, where parties may come from jurisdictions with differing legal traditions and negotiation practices. [83] [84][p19] While mediation outcomes are not binding unless formalised, [85] [86] this can be an advantage in certain contexts. Parties retain control over the resolution and can explore creative solutions that a court or tribunal may not be empowered to impose. [87][p20] These advantages demonstrate why ADR is often considered appropriate for resolving disputes in international trade contracts. Yet their effectiveness is not automatic; it depends on the dispute’s nature, the parties’ expectations [88]and the legal architecture governing the transaction. [89] The following section offers a critical evaluation of ADR’s limitations and risks.SECTION 4: LIMITATIONS AND RISKS OF ADR4.1 Arbitration[p21] While the doctrine of separability preserves access to arbitration, it can entrench procedural asymmetry. Arbitration clauses may survive even when the main contract is void ab initio, insulating dispute resolution from defects in consent. This disproportionately benefits stronger parties who embed arbitration clauses in standard-form contracts, using ADR as a strategic tool rather than a neutral mechanism. The doctrine’s rigidity may frustrate judicial scrutiny of coercive or fraudulent agreements, especially where the clause was not separately negotiated. [90][p22] Despite its reputation for efficiency, arbitration can be costly and procedurally opaque. Specialist arbitrators are often costly. [91] Institutional proceedings under ICC [92] or LCIA [93] involve significant fees and legal costs, which may outweigh benefits in smaller international sale of goods disputes. Procedural flexibility can also lead to unpredictability, particularly when parties fail to agree on rules or arbitrators adopt inconsistent approaches. Clarifying points of law may still require court intervention. [94][p23] Finality is another concern. [95] Arbitral awards are generally not subject to appeal, and while this promotes efficiency, it risks unjust outcomes if errors of law or fact occur. [96] Unlike litigation, arbitration offers limited recourse, raising questions about procedural fairness. [97][p24] Power imbalances further complicate arbitration. Dominant parties may dictate the seat, language, and arbitrator selection, undermining party autonomy and disadvantaging less-resourced parties. [98] Confidentiality, while often seen as a benefit, can obscure disputes involving public interest—such as environmental harm—where transparency and precedent are vital. [99][p25] The New York Convention facilitates cross-border enforcement, but its effectiveness depends on reservations made by contracting states. The reciprocity reservation, for example, limits enforcement to awards from fellow signatories, reflecting strategic self-interest. [100] The reciprocity reservation, while ostensibly procedural, has tangible commercial consequences. It shapes not only enforcement strategy but also market selection, as businesses may avoid jurisdictions where arbitral awards are unenforceable — effectively transforming legal reservations into informal trade barriers. Parties must be legally literate when drafting arbitration clauses, [101] yet many rely on boilerplate forms. Cuniberti [102] and Baird [103] note that while this promotes uniformity it obscures jurisdictional risks and limits strategic tailoring – particularly when enforcement depends seat selection, asset location or political viability. [104][p26] This tension is acute in international sale and carriage contracts, where enforcement depends on the seat of arbitration, asset location, and political viability. Even well-drafted clauses can be destabilised by geopolitical shifts, such as trade sanctions. Irdi’s analysis [105] of political risk clauses highlights their limited effectiveness, noting that political behaviour often defies contractual logic and undermines enforcement predictability.[p27] Supranational regimes also constrain arbitration. In West Tankers, [106] the Court of Justice of the European Union (hereinafter “CJEU”) held that English courts could not issue anti-suit injunctions to restrain proceedings in Italy, subordinating arbitration to EU jurisdictional rules. This undermines party autonomy and reveals friction between regional instruments and the New York Convention. [107][p28] Multi-party contracts pose further challenges. In Jakob Handte, [108] the CJEU held that jurisdiction under Article 5(1) of the Brussels Convention applies only where a direct contractual obligation exists. Without explicit ADR clauses extending to all parties, jurisdictional access may be blocked—especially problematic in sale and carriage chains involving intermediaries. [109]

4.2. Mediation[p29]Mediation’s non-binding nature offers flexibility but also limits enforceability. [110] While parties retain control over outcomes, agreements reached are only binding if formalised through consent awards or settlement contracts. [111] In high-stakes commercial disputes, this uncertainty may deter parties from selecting mediation as a primary resolution method.[p30] Cross-border disputes introduce cultural [112] and psychological complexities. [113] Divergent negotiation styles, [114]communication norms, and expectations [115] can hinder consensus. [116] Successful mediation depends on cultural compatibility [117] and mutual trust [118] - often absent in adversarial trade contexts. [119][p31] Mediation is also ill-suited to disputes requiring legal interpretation or precedent. [120] Issues involving contractual construction, [121] international conventions, or liability often demand authoritative adjudication, which mediation cannot provide due to its facilitative nature. [122][p32] Additionally, mediation may be vulnerable to misuse. [123] Parties acting in bad faith may exploit the process to delay proceedings or extract information without intent to settle. [124] Without procedural safeguards, mediation risks becoming a tactical manoeuvre rather than a genuine resolution mechanism. [125][p33] These limitations highlight the need for a context-sensitive approach to ADR. The suitability of mediation or arbitration depends on the dispute’s nature, the governing legal framework, and the strategic interests of the parties. [126] The following section will compare ADR with litigation, evaluating their respective strengths and limitations in resolving international trade disputes.[p34] Ultimately, while ADR mechanisms offer strategic advantages, their effectiveness is contingent upon context - shaped by the dispute’s nature, party expectations, and the legal framework governing the transaction. [127] A critical evaluation must account for procedural, structural, and contextual risks. [128]SECTION 5: COMPARATIVE ANALYSIS WITH LITIGATION[p35] While ADR mechanisms such as arbitration and mediation offer distinct advantages, litigation remains a vital and, in some cases, preferable method for resolving international trade disputes. [129] A comparative analysis reveals that the choice between ADR and litigation depends on factors such as enforceability, [130] procedural safeguards, [131] public accountability, [132] and the nature of the dispute.5.1 Strengths of Litigation[p36] One of litigation’s key strengths is its contribution to legal precedent and public accountability. Court judgments are typically published and may be cited in future cases, thereby shaping the development of commercial law. [133] This is particularly important in disputes involving novel legal issues or regulatory concerns. For example, in The Starsin [134] , the House of Lords clarified the legal status of bills of lading, influencing subsequent maritime litigation and contract drafting.[p37] Litigation also offers procedural safeguards, notably, the right to appeal. [135] This ensures that errors of law or fact can be reviewed by higher courts, promoting fairness and consistency. [136] In contrast, arbitration awards are generally final, with limited grounds for challenge under national arbitration laws. [137] For parties seeking legal certainty and the possibility of correction, litigation may be more appropriate.[p38] Moreover, litigation may be preferable in disputes involving public interest [138] or reputational risk. [139] Environmental damage caused by shipping, allegations of fraud in international sales, or breaches of regulatory obligations may require public scrutiny and judicial oversight. [140]ADR’s confidentiality, while beneficial in commercial contexts, may obscure issues that warrant transparency. This was exemplified in Mineral Development, Gauteng, [141]where the Supreme Court of Appeal affirmed that environmental concerns must be considered in administrative decisions, even if not explicitly mandated by statute. The ability to challenge procedural omissions through litigation ensured that constitutional environmental rights were upheld — a safeguard that would likely have been unavailable in a confidential ADR setting.[p39] In certain jurisdictions, litigation may also be more cost-effective than arbitration, particularly in specialised commercial courts where procedures are streamlined and fees are transparent. [142]For disputes arising under international sale or carriage contracts — especially those involving legal interpretation rather than technical fact-finding — litigation may offer a more predictable and efficient process. This was evident in MSC Mediterranean Shipping, [143] where the English Commercial Court resolved a demurrage dispute through doctrinal analysis, avoiding the layered costs of arbitration.5.2 Weaknesses of Litigation[p40] However, litigation is not without its drawbacks. Jurisdictional complexity is a major concern in international trade. Determining the appropriate forum, applying foreign law, and enforcing judgments across borders can be time-consuming and uncertain. [144] Unlike arbitral awards, which benefit from the New York Convention, court judgments may face obstacles to recognition and enforcement. [145][p41] Litigation is often slower and more formal than ADR. Procedural rules, disclosure obligations, and appeal processes can prolong resolution, which may be commercially damaging in fast-paced trade environments. In disputes over perishable goods or time-sensitive shipments, delay can result in significant losses. [146][p42] Furthermore, litigation may lack the commercial sensitivity and expertise offered by arbitration. Judges may not have specialist knowledge of maritime operations or international sales practices, leading to decisions that overlook industry norms. In contrast, arbitrators are often selected for their technical expertise and familiarity with trade customs. [147][p43] Finally, litigation is public, which may deter parties from pursuing claims that involve confidential information or reputational concerns. In high-value commercial disputes, the risk of adverse publicity may outweigh the benefits of judicial resolution. [148][p44] This comparative analysis underscores that neither ADR nor litigation is universally superior. Each method offers distinct advantages and limitations, and their appropriateness depends on the dispute’s nature, the parties’ priorities, and the legal framework involved. The next section explores emerging hybrid models and technological innovations that seek to reconcile these approaches, offering more adaptable solutions for international trade disputes.The table in the link below outlines key differences between arbitration and litigation in international trade disputes, especially in carriage and sale contracts.

SECTION 6: EMERGING TRENDS AND HYBRID MODELS[p45] As international trade continues to evolve, so too do the mechanisms for resolving its disputes. Recent developments in hybrid dispute resolution models and digital platforms reflect a growing desire to combine the strengths of arbitration, mediation, and litigation into more adaptive, commercially responsive systems.6.1 Hybrid Models: Med-Arb and Arb-Med[p46] Hybrid models such as Med-Arb (mediation followed by arbitration) and Arb-Med (arbitration paused for mediation) are gaining traction in international trade. These approaches enable parties to pursue amicable resolution before resorting to binding adjudication, offering both flexibility and finality. Institutions like the Singapore International Arbitration Centre (SIAC) and the China International Economic and Trade Arbitration Commission (CIETAC) have formalised procedures for such hybrids. [149][p47] The appeal lies in their procedural efficiency and relational sensitivity. Parties can preserve commercial relationships through mediation, while retaining the security of enforceable outcomes via arbitration. Deason argues that combining roles may compromise neutrality and confidentiality, particularly when disclosures made during mediation influence arbitral reasoning. [150] The potential for prejudgment or perceived bias must be mitigated through robust procedural safeguards, such as appointing separate neutrals or codifying transition protocols. [151] Similar concerns arise in Online Dispute Resolution (ODR), where the absence of harmonised recognition frameworks and inconsistent treatment of digital awards across jurisdictions undermine enforceability. This legal uncertainty can deter parties from using ODR in high-stakes disputes, particularly where cross-border enforcement is critical and commercial efficiency is paramount. [152]6.2 Online Dispute Resolution (ODR)[p48] The rise of Online Dispute Resolution (herein after “ODR”) platforms marks a significant shift in how international trade disputes are handled. Enabled by digital infrastructure and accelerated by the COVID-19 pandemic, ODR offers remote access, automated case management, and virtual hearings. UNCITRAL’s Technical Notes on ODR provide a framework for cross-border digital resolution, particularly in e-commerce and low-value international sales. [153][p49] ODR enhances accessibility and expedites resolution reducing logistical barriers and costs. [154] It is especially useful in disputes involving SMEs or parties in different time zones. [155] However, concerns remain about procedural fairness, data security, and enforceability. [156] Not all jurisdictions recognise digital signatures or remote awards, and the lack of physical presence may affect the dynamics of negotiation and adjudication. [157]6.3 Institutional Innovation and Customisation[p50] Leading arbitral institutions are also innovating to meet the demands of global trade. The ICC has introduced expedited procedures for smaller claims, [158] while the LCIA [159] and SIAC [160] offer flexible rules for multi-party and multi-contract disputes. While joinder and discontinuance have long existed in arbitral practice, institutions like the LCIA have codified these powers to enhance clarity and procedural efficiency. This reflects a broader shift toward modular dispute resolution - refining familiar tools to meet the demands of complex international trade. Such developments reflect a shift toward customisable, modular dispute resolution, allowing parties to tailor processes to the complexity and value of the dispute.[p51] Such innovations blur the boundaries between traditional ADR and litigation, creating a constellation of options rather than a binary choice. For parties engaged in international carriage of goods or sale of goods, this flexibility is invaluable - allowing them to balance speed, cost, enforceability, and relational dynamics. [161][p52] These emerging trends suggest that the future of dispute resolution in international trade lies not in choosing between ADR and litigation, but in strategically combining elements of both. The final section will draw together these insights and offer a nuanced conclusion on the appropriateness of ADR in this context.

CONCLUSION

[p53] The evaluation of Alternative Dispute Resolution (ADR) mechanisms in international trade contracts reveals a nuanced and evolving landscape. Arbitration and mediation offer distinct advantages—enforceability, neutrality, confidentiality, and procedural flexibility—that make them attractive in cross-border disputes, particularly those arising from the international carriage of goods by sea and the international sale of goods. Their adaptability and relational sensitivity position them as valuable tools within the global trade ecosystem.This analysis has considered the differing legal and commercial dynamics of carriage and sale contracts. Maritime disputes often involve technical issues governed by conventions such as the Hague-Visby Rules, while sale contracts may engage harmonised frameworks like the CISG.The appropriateness of ADR depends not only on procedural efficiency but also on the dispute’s substance and regulatory context therefore ADR is not universally suitable. Arbitration’s cost, limited appeal rights, and procedural opacity must be weighed against its benefits. Mediation may falter where enforceable outcomes or authoritative interpretation are required. Litigation, though slower and more public, retains strengths in precedent-setting, procedural safeguards, and regulatory oversight.The rise of hybrid models and digital platforms suggests that the future lies not in choosing between ADR and litigation, but in strategically combining elements of both. Med-Arb procedures, online dispute resolution, and institutional innovations offer parties tailored processes aligned with dispute complexity and commercial priorities.In conclusion, ADR mechanisms are often appropriate for resolving international trade disputes, but their suitability depends on a constellation of factors: contract type, dispute nature, strategic priorities, and legal framework. A context-aware deployment of ADR—possibly in combination with litigation or hybrid models—offers the most effective path forward. The challenge for legal practitioners is not merely to select a method, but to choreograph a resolution strategy aligned with commercial goals, legal integrity, and global enforceability.

REFERENCES

[1] Reyburn W Lominack III ‘Examining Alternative Dispute Resolution in the Business Domain’ (2003) Vol 1 South Carolina Journal of International Law and Business 18.[2] Carriage of Goods by Sea Act 1992.[3] Sale of Goods Act 1979.[4] The Hague Visby Rules as amended by the Protocol of 1979 the Hague Rules 1924.[5] United Nations on Conventions on Contracts for the International Sale of Goods (Vienna 11 April 1980) (CISG).[6] D R Thomas, ‘Laytime and Demurrage – Contractual Concepts in a State of Flux’ (2014) Vol 20 The Journal of International Maritime Law 183.[7] Madeleine Elisabeth Petersen Weiner , ‘Whereto Litigation? Litigation and Arbitration Compared as Modern Commercial Dispute Resolution Measures’ [2019] Heidelberger OJS Journals 1, 3.[8] Indira Carr and Peter Stone International Trade Law (Sixth Edition, Routledge 2018) 631-633.[9] Gary Born* International Commercial Arbitration* (Kluwer Law International, 2009).[10] International Chamber of Commerce < https://iccwbo.org > accessed 29th September 2025.[11] London Court of International Arbitration < https://www.lcia.org > accessed 29th September 2025.[12] Singapore International Arbitration Centre < https://siac.org.sg/about-us > accessed 29th September 2025.[13] United Nations on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 10 June 1958) < https://www.newyorkconvention.org/english > accessed 29th September 2025.[14] Singapore Convention on Mediation < https://www.singaporeconvention.org > 29th September 2025.[15] Indira Carr and Peter Stone International Trade Law (Sixth Edition, Routledge 2018) 632.[16] Indira Carr and Peter Stone International Trade Law (Sixth Edition, Routledge 2018) 631.[17] Indira Carr and Peter Stone International Trade Law (Sixth Edition, Routledge 2018) 633.[18] Arbitration Act 1996 s 45(1).[19] Jaemin Lee, ‘Long-Term Relationship Over Litigation: Mediation in WTO Dispute Settlement Proceedings’ (2025) Vol 24 World Trade Review 50.[20] Neil H Andrews, ‘Mediation: International Experience and Global Trends’ (Legal Studies Research Paper Series Paper No 42/2018, University of Cambridge) 2018.[21] ICC Dispute Resolution Statistics 2023 <https://iccwbo.org/wp-content/uploads/sites/3/2024/06/2023-StatisticsICCDispute-Resolution991.pdf > accessed 29th September 2025[22] ICC Dispute Resolution Statistics 2024 <https://iccwbo.org/wp-content/uploads/sites/3/2025/06/2024-StatisticsICCDispute-Resolution.pdf> accessed 29th September 2025.[23] ICC Dispute Resolution Statistics 2023 <https://iccwbo.org/wp-content/uploads/sites/3/2024/06/2023-StatisticsICCDispute-Resolution991.pdf > accessed 29th September 2025;
ICC Dispute Resolution Statistics 2024 < https://iccwbo.org/wp-content/uploads/sites/3/2025/06/2024-StatisticsICCDispute-Resolution.pdf > accessed 29th September 2025.[24] S I Strong, ‘Beyond International Commercial Arbitration? The Promise of International Commercial Mediation’ (2014) Vol 45 Journal of Law and Policy 11.[25] Indira Carr and Peter Stone International Trade Law (Sixth Edition, Routledge 2018) 628.[26] Indira Carr and Peter Stone International Trade Law (Sixth Edition, Routledge 2018) 499.[27] Indira Carr and Peter Stone International Trade Law (Sixth Edition, Routledge 2018) 59.[28] Stephen Girvin Carriage of Goods by Sea (Third edition, Oxford University Press) 2022, Chapter 18.[29] United Nations on Conventions on Contracts for the International Sale of Goods (Vienna 11 April 1980) (CISG); UNITED NATIONS COMISSION ON INTERNATIONAL TRADE LAW ‘UNCITRAL, HCCH and UNIDROIT Legal Guide to Uniform Instruments in the Area of International Commercial Contracts, with a Focus on Sales’ < https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/tripartiteguide.pdf > accessed 1st October 2025; HCCH ‘Hague Conference on Private International Law’ HCCH < https://www.hcch.net/en/home > accessed 1st October 2025; International Chambers of Commerce ‘Incoterms 2020’ ICC < https://iccwbo.org/business-solutions/incoterms-rules/incoterms-2020/ > accessed 2nd October 2025; Rome I Regulation (EU).[30] Vienna Convention on the Law of Treaties (1969), Article 26; Mark Abrams ‘UCP 600 and Letters of Credit’ 10th March 2025 Trade Finance Global 2025 Guide < https://www.tradefinanceglobal.com/letters-of-credit/ucp-600/ > accessed 2nd October 2025; International Chambers of Commerce ‘Incoterms 2020’ ICC < https://iccwbo.org/business-solutions/incoterms-rules/incoterms-2020/ > accessed 2nd October 2025.[31] Chukwuma Samuel, Adesina Okoli and Abubakri Yekini, ‘Implied Jurisdiction Agreements in International Commercial Contracts: A Global Comparative Perspective’ (2023) Vol 19 Journal of Private International Law 321, 325-327; Indira Carr and Peter Stone International Trade Law (Sixth Edition, Routledge 2018) pp 650.[32] Anu Vihervaara, ‘The Validity and Relevance of a Jurisdictional Clause in a Contract for the International Carriage of Goods by Sea’ (Master’s Thesis, University of Helsinki 2019); Indira Carr and Peter Stone International Trade Law (Sixth Edition, Routledge 2018) pp 225-226.[33] Indira Carr and Peter Stone International Trade Law (Sixth Edition, Routledge 2018) 499.[34] Hague-Visby Rules <http://www.dutchcivillaw.com/legislation/haguevisbyrules.htm > accessed 2nd October 2025.[35] Indira Carr and Peter Stone International Trade Law (Sixth Edition, Routledge 2018) 201.[36] Tamar Mskhvilidze, ‘The Legal Nature of Forum Shopping in International Civil Procedure Law’ (2023) Vol 9 Law and World.[37] Franco Ferrari, ‘Forum Shopping: A Plea for A Broad and Value-Neutral Definition’ (2014) New York University School of Law: Public Law and Legal Theory Research Paper Series Working Paper No 14-39 < https://papers.ssrn.com/sol3/papers.cfm?abstractid=2474181 > accessed 2nd October 2025.[38] Riverstone Meat Company Ltd v Lancashire Shipping Company Ltd [1961] 1 Lloyds Rep 57.[39] K Line Pte Ltd v Priminds Shipping HK Co Ltd (Eternal Bliss) [2022] EWCA Civ 1712[40] The Jordan II [2004] UKHL 49.[41] United Nations on Conventions on Contracts for the International Sale of Goods (Vienna 11 April 1980) (CISG).[42] J & H Ritchie Ltd v Lloyd Ltd [2007] UKHL 9.[43] Bunge Corporation v Tradax Export SA [1981] UKHL 11.[44] E D & F Man Sugar Ltd v Unicargo Transport [2013] EWCA Civ 1449.[45] Stephen Girvin Carriage of Goods by Sea (Third edition, Oxford University Press) 2022, Chapter 18.[46] Symeon Symeonides, ‘Party Autonomy in International Contracts and the Multiple Ways of Slicing the Apple’ (2013) Vol 39 Brooklyn Journal of International Law.[47] Rome I Regulation (Regulation (EC) No 593/2008).[48] Symeon C Symeonides Codifying Choice of Law Around the World: An International Comparative Analysis (Oxford University Press 2017).[49] Ifrah Barge, Saanya Vashishta and Shreya Tiwari, ‘Critical Analysis of Forum Shopping in International Commercial Law’ 19th May 2025 Ex Curia International < https://excuriainternational.com/2025/05/19/critical-analysis-of-forum-law-shopping-in-international-commercial-law/#::text=Forum%20law%20shopping%20is%2D%20an,of%20the%20legal%20machinery%20itself. > accessed 3rd October 2025.[50] International Chamber of Commerce < https://iccwbo.org > accessed 29th September 2025.[51] London Court of International Arbitration < https://www.lcia.org > accessed 29th September 2025.[52] Singapore International Arbitration Centre < https://siac.org.sg/about-us > accessed 29th September 2025.[53] Alaska Packers v Domenico(117 F. 99, 9th Cir. 1902).[54] Indira Carr and Peter Stone International Trade Law (Sixth Edition, Routledge 2018) 630-632.[55] International Trade Council, ‘Arbitration versus Mediation in International Trade Disputes’ (2023) International Trade Council p 18< https://tradecouncil.org/wp-content/uploads/2024/10/arbitration-vs-mediation.pdf > accessed 3rd October 2025.[56] United Nations on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 10 June 1958) < https://www.newyorkconvention.org/english > accessed 29th September 2025.[57] Nigel Blackaby and Constantine Partasides, Alan Redfern and Martin Hunter Redfern and Hunter on International Arbitration (Sixth edition, Oxford University Press 2015) chapter 10.[58] Lawrence Collins et al (eds), Dicey, Morris and Collins on the Conflict of Laws (Fourteenth edition, Sweet & Maxwell 2006) rr 59–60.[59] Administration of Justice Act 1920, s 9.[60] Arbitration Act 1996.[61] Arbitration Act 2025, ss 41, 42 and 44.[62] Lydia Fontes, ‘London is the World’s Top Location for International Arbitration, Research Reveals’ 1st May 2025 Legal Cheek < https://www.legalcheek.com/2025/05/london-is-the-worlds-top-location-for-international-arbitration-research-reveals/ > accessed 3rd October 2025; David Edwards and Amy Volz, ‘Why International Contracts Still Point to London’ Simpson Thacher Publications in The Law Society Gazette p 28 < https://edition.pagesuite-professional.co.uk/html5/reader/production/default.aspx?pubname=&edid=2aa61c48-9a66-48a6-85ff-8eae3d88faba > accessed 3rd October 2025; Nadir Hassan and Tom Wheeler, ‘Securing London’s Status as A World Leading Arbitral Seat: The Arbitration Act 2025’ June 2025 Beale & Co < https://beale-law.com/article/securing-londons-status-as-a-world-leading-arbitral-seat-the-arbitration-act-2025/ > accessed 3rd October 2025.[63] Indira Carr and Peter Stone International Trade Law (Sixth Edition, Routledge 2018) 631.[64] Arbitration Act 1996, s 7[65] Fiona Trust & Holding Corporation v Privalov [2007] UKHL 40.[66] Ali Shipping Corp v Shipyard Trogir [1998] 1 Lloyd’s Rep 643, p 654.[67] Hassneh Insurance Co of Israel Ltd v Mew [1993] 2 Lloyds Rep 3.[68] Hans Smit, ‘Confidentiality in Arbitration’ (1995) Vol 11 Arbitration International 337.[69] Indira Carr and Peter Stone International Trade Law (Sixth Edition, Routledge 2018) 633 and 638.[70] Arbitration Act 1996 ss 67-69.[71] Pioneer Shipping Ltd and Others v BTP Tioxide Ltd (The Nema) [1981] 2 All ER 1030.[72] Tackaberry (ed), International Commercial Arbitration for Today and Tomorrow 1991 Euro Conferences p 41.[73] Mediate Legal ‘Our Fees: Commercial Mediation Fees’ Mediate Legal<https://mediatelegal.co.uk/our-fees/#::text=Commercial%20Mediation%20Fees&text=MediateLegal%20charge%20our%20fee%20at,1%20full%20day%20mediation%20session. > accessed 16th May 2025.[74] Claire Gill, ‘Protecting Your Reputation in Commercial Litigation’ Carter Ruck < https://www.carter-ruck.com/insight/protecting-your-reputation-in-commercial-litigation/ > accessed 14th May 2025.[75] Ian Carson, ‘Types of Alternative Dispute Resolution Methods: Choosing The Best One For Your Business’ 12th April 2021 Harper James < https://harperjames.co.uk/article/choosing-types-of-alternative-dispute-resolution-adr/ > accessed 16th May 2025.[76] Lucilla MacGregor Charlotte Peacey Georgina Ridsdale Civil Litigation (Fifteenth edition, Oxford University Press) 2022, 55.[77] Lake Utopia Paper Ltd v Connelly Containers Inc 608 F2d (2dr Cir 1997) p 930.[78] UNICITRAL Rules, Article 13.[79] International Chamber of Commerce ‘ADR Rules 2001, Article 9 Confidentiality’ < https://iccwbo.org/dispute-resolution/dispute-resolution-services/adr/mediation/mediation-rules/ > accessed 5th October 2025.[80] RICS, ‘Your Essential Guide to Alternative Dispute Resolutions’ RICS < https://www.rics.org/dispute-resolution-service/alternative-dispute-resolution > accessed 14th May 2025.[81] Daniela Bushe, ‘Alternative Dispute Resolution – The Main Options’ July 2015 Gaby Hardwicke Solicitors <https://www.gabyhardwicke.co.uk/briefing-notes-and-faqs/alternative-dispute-resolution-the-main-options/#:~:text=It%20is%20both%20voluntary%20and,their%20side's%20point%20of%20view. > accessed 14th May 2025.[82] Lucilla MacGregor Charlotte Peacey Georgina Ridsdale Civil Litigation (Fifteenth edition, Oxford University Press) 2022, 52.[83] R Lalthasangzeli and Jyotirmoy Banerjee, ‘Comprehensive Study on the Evolving Role of Mediation in Resolving Cross Border Commercial Disputes’ (2025) Vol 4 International Journal of Human Rights Law Review 554 < https://humanrightlawreview.in/wp-content/uploads/2025/05/Comprehensive-Study-on-the-Evolving-Role-of-Mediation-in-Resolving-Cross-Border-Commercial-Disputes.pdf > accessed 5th October 2025.[84] Carrie Menkel-Meadow, ‘The History and Development of “A”DR (alternative/appropriate dispute resolution)’1st July 2016 Volkerrechtsblog – International Law and International Legal Thought <https://voelkerrechtsblog.org/the-history-and-development-of-a-dr-alternativeappropriate-dispute-resolution/ >accessed 14th May 2025.[85] Indira Carr and Peter Stone International Trade Law (Sixth Edition, Routledge 2018) 664.[86] CEDR, ‘Am I Required to Sign the Settlement Agreement?’ Center for Effective Dispute Resolution < https://learn.cedr.com/knowledge-base/am-i-required-to-sign-the-settlement-agreement > accessed 5th October 2025.[87] CEDR, ‘What if the Other Side Doesn’t Perform Their End of the Settlement?’ Center for Effective Dispute Resolution < https://learn.cedr.com/knowledge-base/what-if-the-other-side-doesnt-perform-their-end-of-the-settlement > accessed 5th October 2025.[88] Sam Leaver, ‘Effective Approaches to Alternative Dispute Resolution (ADR): Five Key Pointers for Success’ 23rd July 2025 Howes Percival < https://www.howespercival.com/effective-approaches-to-alternative-dispute-resolution-adr-five-key-pointers-for-success/ > accessed 5th October 2025.[89] Aaron Hall, ‘Enforcing ADR Clauses in International Business Contracts’ Aaron Hall Attorney < https://aaronhall.com/enforcing-adr-clauses-in-international-business-contracts/ > accessed 5th October 2025.[90] Gary Born International Commercial Arbitration (Third edition, Kluwer Law International) chapter 5.[91] Indira Carr and Peter Stone International Trade Law (Sixth Edition, Routledge 2018) 633.[92] International Chambers of Commerce ‘Arbitration Costs and Fees 2025’ ICC < https://iccwbo.org/dispute-resolution/dispute-resolution-services/arbitration/costs-and-payment/ > accessed 5th October 2025.[93] London Court of International Arbitration ‘Schedule of Arbitration Costs 2023’ LCIA < https://www.lcia.org/disputeresolution_services/schedule-of-arbitration-costs-2023.aspx > accessed 5th October 2025.[94] Arbitration Act 1996 s 45(1).[95] Indira Carr and Peter Stone International Trade Law (Sixth Edition, Routledge 2018) 642.[96] The Federal Republic of Nigeria v Process and Industrial Developments Ltd [2023] EWHC 2638 (Comm) [574]-[591] (Knowles LJ).[97] ICC Arbitration Rules Article 19(1).[98] Giles Cuniberti Rethinking International Commercial Arbitration Towards Default Arbitration (Edward Elgar, 2017) ch 3.[99] Harsh Verma, ‘Confidentiality vs Public Interest in Arbitration’ 10th September 2024 The Legal Quorum < https://thelegalquorum.com/confidentiality-vs-public-interest-in-arbitration/ > accessed 5th October 2025.[100] Indira Carr and Peter Stone International Trade Law (Sixth Edition, Routledge 2018) 648.[101] Jane Parsons, ‘Don’t Be A Midnight Cowboy: Avoiding Common Pitfalls When Drafting and Negotiating Arbitration Clauses’ 1st November 2018 Thomson Reuters < http://arbitrationblog.practicallaw.com/dont-be-a-midnight-cowboy-avoiding-common-pitfalls-when-drafting-and-negotiating-arbitration-clauses/ > accessed 13th May 2025.[102] Giles Cuniberti Rethinking International Commercial Arbitration Towards Default Arbitration (Edward Elgar, 2017).[103] Douglas G Baird and Rober Weisberg, ‘Rules Standards and the Battle of the Forms: A Reassessment of s 2-207’ (1982) Vol 68 Virginia Law Review 1217, 1229-1230.[104] Indian Organic Chemicals v Chemtex Fibres (1978) 65 A.I.R Bom 108.[105] Beniaminio Irdi, ‘Geopolitical Analysis Can – and Should – Affect Legal Risk Review’ 26th February 2024 Bloomberg Law < https://news.bloomberglaw.com/us-law-week/geopolitical-analysis-can-and-should-affect-legal-risk-review > accessed 14th September 2025

[106] West Tankers v Allianz (C-185/07) [2009] AC 1138.[107] Holly Stebbing and India Furse, ‘West Tankers Stays on Course in Recent Anti-Suit Decision’ December 2018 Norton Rose Fulbright < https://www.nortonrosefulbright.com/en/knowledge/publications/88cad768/west-tankers-stays-on-course-in-recent-anti-suit-decision > accessed 6th October 2025.[108] Jakob Handte & Co GmbH v Traitements Mécano-Chimiques des Surfaces SA (TMCS) (C-26/91) ECR 1992 page I-03967.[109] Westlaw ‘Jakob Handte & Co GmbH v Traitements Mécano-Chimiques des Surfaces SA (TMCS) (C-26/91) ECR 1992 page I-03967’ Thomson Reuters Westlaw Edge UK paras 14 to 17 <https://uk.practicallaw.thomsonreuters.com/Document/I5763297C72E745D6B5BD00F23BDD2467/View/FullText.html?transitionType=Default&contextData=(sc.Default) > accessed 6th October 2025.[110] Courtney and Fairburn Ltd v Toilani Brothers (Hotels) Ltd [1975] 1 All ER 716 (Lord Denning); Walford v Miles [1992] 1 All ER (Comm) 303 [462] (Lord Ackner).[111] CEDR, ‘Am I Required to Sign the Settlement Agreement?’ Center for Effective Dispute Resolution < https://learn.cedr.com/knowledge-base/am-i-required-to-sign-the-settlement-agreement > accessed 5th October 2025.[112] Daniel Q Posin, ‘Mediating International Business Disputes’ (2004) Vol 9 Fordham Journal of Corporate and Financial Law 449, 466 < https://www.nottingham.ac.uk/research/groups/ctccs/projects/translating-cultures/documents/journals/mediating-international-business-disputes.pdf > accessed 6th October 2025.[113] Jaemin Lee, ‘Long-Term Relationship Over Litigation: Mediation in WTO Dispute Settlement Proceedings’ (2025) Vol 24 World Trade Review 50, 56.[114] Daniel Q Posin, ‘Mediating International Business Disputes’ (2004) Vol 9 Fordham Journal of Corporate and Financial Law 449, 471 < https://www.nottingham.ac.uk/research/groups/ctccs/projects/translating-cultures/documents/journals/mediating-international-business-disputes.pdf >[115] Jaemin Lee, ‘Long-Term Relationship Over Litigation: Mediation in WTO Dispute Settlement Proceedings’ (2025) Vol 24 World Trade Review 50, 74.[116] Geert Hoftede Cultural Consequences (SAGE Publications, 1984) pp 92, 153, 213 and 261.[11718] Cynthia A Savage, ‘Culture and Mediation: A Red Herring’ [1996] Journal of Gender And The Law 269 < https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1239&context=jgspl > accessed 6th October 2025.[119] Dean Allen Foster Bargaining Across Borders – How to Negotiate Business Successfully Anywhere in the World (McGraw-Hill, 1992) pp 264-70.[120] Michael Edwards, ‘Mediation in International and Commercial Disputes: Benefits and Challenges’ Michael Edwards < https://michaeledwards.uk/mediation-in-international-commercial-disputes-benefits-and-challenges/ accessed 6th October 2025.[121] Jacqueline M Nolan-Haley, ‘Court Mediation and the Search for Justice through Law’ (1996) Vol 74 Washington University Law Quarterly 47, 81.[122] Lucilla MacGregor Charlotte Peacey Georgina Ridsdale Civil Litigation (Fifteenth Edition, Oxford University Press) 2022, 61.[123] Lucilla MacGregor Charlotte Peacey Georgina Ridsdale Civil Litigation (Fifteenth Edition, Oxford University Press) 2022, 62 (5.8.1).[124] Marta Urbane, ‘Opportunities and Challenges of Mediation in International Commercial Disputes’ Faculty of European Studies Latvia 292, 297-298 < https://www.apgads.lu.lv/fileadmin/userupload/luportal/apgads/PDF/Konferences/2022/iscflul-8-1/iscflul.8.1.26-urbane.pdf > accessed 6thOctober 2025.[125] Mediate Legal, ‘Our Fees: Commercial Mediation Fees’ Mediate Legal<https://mediatelegal.co.uk/our-fees/#:~:text=Commercial%20Mediation%20Fees&text=MediateLegal%20charge%20our%20fee%20at,1%20full%20day%20mediation%20session. > accessed 16th May 2025.[126] Jacqueline M Nolan-Haley, ‘Court Mediation and the Search for Justice through Law’ (1996) Vol 74 Washington University Law Quarterly 47, 95-97.[127] Daniel Q Posin, ‘Mediating International Business Disputes’ (2004) Vol 9 Fordham Journal of Corporate and Financial Law 449, 467-470 < https://www.nottingham.ac.uk/research/groups/ctccs/projects/translating-cultures/documents/journals/mediating-international-business-disputes.pdf > accessed 6th October 2025.[128] Frost v Wake Smith and Tofield Solicitors [2013] EWCA Civ 772.[129] Harry Perrin, ‘Alternative Dispute Resolution (ADR) – An Overview of Some Common Mechanisms, And Their Strengths and Weaknesses in Context’ (2014) Vol 6 Plymouth Law and Criminal Justice Review 70, 76.[130] Lucilla MacGregor Charlotte Peacey Georgina Ridsdale Civil Litigation (Fifteenth Edition, Oxford University Press) 2022, 61 (5.6).[131] Halifax Financial Services v Intuitive Systems Ltd [1999] 1 All ER (Comm) 303.[132] Jacqueline M Nolan-Haley, ‘Court Mediation and the Search for Justice through Law’ (1996) Vol 74 Washington University Law Quarterly 47, 90.[133] Claire Gill, ‘Protecting Your Reputation in Commercial Litigation’ Carter Ruck < https://www.carter-ruck.com/insight/protecting-your-reputation-in-commercial-litigation/ > accessed 14th May 2025.[134] Bruno Deffains, Dominique Demougin, Claudine Desrieux, ‘Choosing ADR or Litigation’ [2016] International Review of Law and Economics 33, 34.[135] Homburg Hutimport BV v Agrosin Private Ltd (The Starsin) [2003] UKHL 12.[136] Adam Brown, ‘Utilising Procedural Mechanisms’ Simmons & Simmons < https://www.simmons-simmons.com/en/features/parallel-proceedings/ck1t3w1rz2c0j0b1998xzicy7/utilising-procedural-mechanisms > accessed 6th October 2025.[137] Scott Slorach, Judith Embley, Peter Goodchild, Catherine Shephard Legal Systems and Skills (Fourth edition Oxford University Press, 2020) 44.[138] Indira Carr and Peter Stone International Trade Law (Sixth Edition, Routledge 2018) 632.[139] Harsh Verma, ‘Confidentiality vs Public Interest in Arbitration’ 10th September 2024 The Legal Quorum < https://thelegalquorum.com/confidentiality-vs-public-interest-in-arbitration/ > accessed 5th October 2025[140] Claire Gill, ‘Protecting Your Reputation in Commercial Litigation’ Carter Ruck < https://www.carter-ruck.com/insight/protecting-your-reputation-in-commercial-litigation/ > accessed 14th May 2025.[141] Beverley Agbakoba-Onyejianya, Emmanuel Agherario, Chukunonyenim Okoh, ‘The Use of Alternative Dispute Resolution in Environmental and Community Disputes’ 11th March 2025 Olisa Agbakoba Legal < https://oal.law/the-use-of-alternative-dispute-resolution-in-environmental-and-community-disputes/ > accessed 6th October 2025.[142] Director: Mineral Development, Gauteng v Save the Vaal Environment, 2 All SA 381 (A) 12th March 1992[142] Part 58 Commercial Court < https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part58 > accessed 6th October 2025.[143] MSC Mediterranean Shipping Company SA v Cottonex Anstalt [2016] EWCA Civ 789.[144] Min Kyung Kim * Comparative Research on the Treatment of Overriding Mandatory Rules of a Third Country* (Hart Publishing 2025) pp 96 and 99.[145] West Tankers v Allianz (C-185/07) [2009] AC 1138.[146] Pepperdine Law Blog, ‘Arbitration v Litigation: Choosing the Right Path’ 4th April 2024 Pepperdine Caruso School of Law < https://law.pepperdine.edu/blog/posts/arbitration-vs-litigation-choosing-the-right-path.htm > accessed 6th October 2025.[147] Indira Carr and Peter Stone International Trade Law (Sixth Edition, Routledge 2018) 631.[148] Hans Smit, ‘Confidentiality in Arbitration’ (1995) Vol 11 Arbitration International 337.[149] Eunice Chua, ‘The Singapore Convention on Mediation and the New York Convention on Arbitration: Comparing Enforcement Mechanisms and Drawing Lessons for Asia’ (2020) Vol 16 Asian International Arbitration Journal 113 < https://papers.ssrn.com/sol3/papers.cfm?abstractid=3802242 > accessed 6th October 2025.[150] Ellen E Deason, ‘Combinations of Mediation with Arbitration with the Same Neutral: A Framework for Judicial Review’(2013) Vol 5 Arbitration Law Review 218 < https://insight.dickinsonlaw.psu.edu/cgi/viewcontent.cgi?article=1091&context=arbitrationlawreview > accessed 6th October 2025.[151] Kristen M Blankley, ‘Keeping a Secret from Yourself? Confidentiality When the Same Neutral Serves Both As Mediator and as Arbitrator in the Same Case’ < https://litigationethicsconference.org/wp-content/uploads/2023/09/SSRN-id1793515.pdf > accessed 6th October 2025.[152] Weixia Gu, ‘Hybrid Dispute Resolution Beyond the Belt and Road: Toward a New Design of Chinese Arb-Med (Arb) and its Global Implications’ (2019) Vol 29 Washington Internation Law Journal < https://digitalcommons.law.uw.edu/cgi/viewcontent.cgi?article=1827&context=wilj > accessed 6th October 2025.[153] Indira Carr and Peter Stone International Trade Law (Sixth Edition, Routledge 2018) 665.[154] eBay Inc v Bidder’s Edge Inc 100 F Supp 2d 1058 (ND Cal 2000)[155] United Nations Commission on International Trade Law ‘Online Dispute Resolution’ < https://uncitral.un.org/en/texts/onlinedispute > accessed 6th October 2025.[156] Ethan Katsh and Colin Rule, ‘What We Need to Know About Online Dispute Resolution’ (2016) Vol 67 South Carolina Law Review 328 < https://scholarcommons.sc.edu/cgi/viewcontent.cgi?article=4166&context=sclr&hl=en-US > accessed 6th October 2025.[157] Pablo Cortez Online Dispute Resolution for Consumers in the European Union (Routledge Research in IT and E-Commerce Law, 2010) 1.5-1.6 and 5.1-5.4 < https://www.econstor.eu/bitstream/10419/181972/1/391038.pdf > accessed 6th October 2025.[158] International Chamber of Commerce ‘Expedited Procedure Provisions’ ICC < https://iccwbo.org/dispute-resolution/dispute-resolution-services/arbitration/rules-procedure/expedited-procedure/ > accessed 6th October 2025.[159] London Court of International Arbitration ‘Arbitration Rules 2020, Articles 22.1(x) and 22.1(xi)’ < https://www.lcia.org/DisputeResolutionServices/lcia-arbitration-rules-2020.aspx#Article%2022 > accessed 6th October 2025.[160] SIAC, ‘Expedited Procedure – Rule 5’ < https://siac.org.sg/wp-content/uploads/2022/06/SIAC-Rules-2016-English28-Feb-2017.pdf > accessed 6th October 2025.[161] Gary Born International Commercial Arbitration (Third edition Kluwer Law International, 2021) Vol I, chapters 5, 15–16.

BIBLIOGRAPHY

Primary Sources

CasesAli Shipping Corp v Shipyard Trogir [1998] 1 Lloyd’s Rep 643Bunge Corporation v Tradax Export SA [1981] UKHL 11Courtney and Fairburn Ltd v Toilani Brothers (Hotels) Ltd [1975] 1 All ER 716E D & F Man Sugar Ltd v Unicargo Transport [2013] EWCA Civ 1449Fiona Trust & Holding Corporation v Privalov [2007] UKHL 40Frost v Wake Smith and Tofield Solicitors [2013] EWCA Civ 772Halifax Financial Services v Intuitive Systems Ltd [1999] 1 All ER (Comm) 303Hassneh Insurance Co of Israel Ltd v Mew [1993] 2 Lloyds Rep 3Homburg Hutimport BV v Agrosin Private Ltd (The Starsin) [2003] UKHL 12J & H Ritchie Ltd v Lloyd Ltd [2007] UKHL 9MSC Mediterranean Shipping Company SA v Cottonex Anstalt [2016] EWCA Civ 789Pioneer Shipping Ltd and Others v BTP Tioxide Ltd (The Nema) [1981] 2 All ER 1030The Federal Republic of Nigeria v Process and Industrial Developments Ltd [2023] EWHC 2638 (Comm)The Jordan II [2004] UKHL 49Walford v Miles [1992] 1 All ER (Comm) 303International casesAlaska Packers v Domenico (117 F. 99, 9th Cir. 1902)Director: Mineral Development, Gauteng v Save the Vaal Environment, 2 All SA 381 (A) 12th March 1992eBay Inc v Bidder’s Edge Inc 100 F Supp 2d 1058 (ND Cal 2000)Indian Organic Chemicals v Chemtex Fibres (1978) 65 A.I.R Bom 108Jakob Handte & Co GmbH v Traitements Mécano-Chimiques des Surfaces SA (TMCS) (C-26/91) ECR 1992K Line Pte Ltd v Priminds Shipping HK Co Ltd (Eternal Bliss) [2022] EWCA Civ 1712Lake Utopia Paper Ltd v Connelly Containers Inc 608 F2d (2dr Cir 1997)Riverstone Meat Company Ltd v Lancashire Shipping Company Ltd [1961] 1 Lloyds Rep 57West Tankers v Allianz (C-185/07) [2009] AC 1138

Legislation

Administration of Justice Act 1920Arbitration Act 1996Arbitration Act 2025Carriage of Goods by Sea Act 1992Sale of Goods Act 1979International LegislationHCCH ‘Hague Conference on Private International Law’ HCCHHague-Visby RulesInternational Chambers of Commerce RulesRome I Regulation (Regulation (EC) No 593/2008)Vienna Convention on the Law of Treaties (1969)

Secondary Sources

Abrams M ‘UCP 600 and Letters of Credit’ 10th March 2025 Trade Finance Global 2025 Guide < https://www.tradefinanceglobal.com/letters-of-credit/ucp-600/ > accessed 2nd October 2025Agbakoba-Onyejianya B, Agherario E, Okoh C ‘The Use of Alternative Dispute Resolution in Environmental and Community Disputes’ 11thMarch 2025 Olisa Agbakoba Legal < https://oal.law/the-use-of-alternative-dispute-resolution-in-environmental-and-community-disputes/ > accessed 6th October 2025Allen D Foster Bargaining Across Borders – How to Negotiate Business Successfully Anywhere in the World (McGraw-Hill, 1992)Andrews N H ‘Mediation: International Experience and Global Trends’ (Legal Studies Research Paper Series Paper No 42/2018, University of Cambridge) 2018Barge I et al ‘Critical Analysis of Forum Shopping in International Commercial Law’ 19th May 2025 Ex Curia International < https://excuriainternational.com/2025/05/19/critical-analysis-of-forum-law-shopping-in-international-commercial-law/#::text=Forum%20law%20shopping%20is%2D%20an,of%20the%20legal%20machinery%20itself. > accessed 3rd October 2025Baird D G and Weisberg R ‘Rules Standards and the Battle of the Forms: A Reassessment of s2-207’ (1982) Vol 68 Virginia Law Review 1217Blackaby N et al, Redfern and Hunter on International Arbitration (Sixth edition, Oxford University Press 2015)Blankley K M ‘Keeping a Secret from Yourself? Confidentiality When the Same Neutral Serves Both As Mediator and as Arbitrator in the Same Case’ < https://litigationethicsconference.org/wp-content/uploads/2023/09/SSRN-id1793515.pdf > accessed 6th October 2025Born G, International Commercial Arbitration (Third edition Kluwer Law International, 2021)Brown A ‘Utilising Procedural Mechanisms’ Simmons & Simmons < https://www.simmons-simmons.com/en/features/parallel-proceedings/ck1t3w1rz2c0j0b1998xzicy7/utilising-procedural-mechanisms > accessed 6th October 2025Bushe D ‘Alternative Dispute Resolution – The Main Options’ July 2015 Gaby Hardwicke Solicitors <https://www.gabyhardwicke.co.uk/briefing-notes-and-faqs/alternative-dispute-resolution-the-main-options/#::text=It%20is%20both%20voluntary%20and,their%20side's%20point%20of%20view. > accessed 14th May 2025Carr I and Stone P International Trade Law (Sixth Edition, Routledge 2018)Carson I ‘Types of Alternative Dispute Resolution Methods: Choosing The Best One For Your Business’ 12th April 2021 Harper James < https://harperjames.co.uk/article/choosing-types-of-alternative-dispute-resolution-adr/ > accessed 16th May 2025CEDR ‘Am I Required to Sign the Settlement Agreement?’ Center for Effective Dispute Resolution < https://learn.cedr.com/knowledge-base/am-i-required-to-sign-the-settlement-agreement > accessed 5th October 2025CEDR ‘What if the Other Side Doesn’t Perform Their End of the Settlement?’ Center for Effective Dispute Resolution < https://learn.cedr.com/knowledge-base/what-if-the-other-side-doesnt-perform-their-end-of-the-settlement > accessed 5th October 2025Chua E ‘The Singapore Convention on Mediation and the New York Convention on Arbitration: Comparing Enforcement Mechanism
Collins L et al (eds), Dicey, Morris and Collins on the Conflict of Laws (Fourteenth edition, Sweet & Maxwell 2006)Cortez P Online Dispute Resolution for Consumers in the European Union (Routledge Research in IT and E-Commerce Law, 2010) <https://www.econstor.eu/bitstream/10419/181972/1/391038.pdf > accessed 6th October 2025Cuniberti G Rethinking International Commercial Arbitration Towards Default Arbitration (Edward Elgar, 2017)Deason E E ‘Combinations of Mediation with Arbitration with the Same Neutral: A Framework for Judicial Review’(2013) Vol 5 Arbitration Law Review 218 < https://insight.dickinsonlaw.psu.edu/cgi/viewcontent.cgi?article=1091&context=arbitrationlawreview > accessed 6th October 2025Deffains B, Demougin D, Desrieux C ‘Choosing ADR or Litigation’ [2016] International Review of Law and Economics 33Edwards M ‘Mediation in International and Commercial Disputes: Benefits and Challenges’ Michael Edwards < https://michaeledwards.uk/mediation-in-international-commercial-disputes-benefits-and-challenges/ accessed 6th October 2025Edwards D and Volz A ‘Why International Contracts Still Point to London’ Simpson Thacher Publications in The Law Society Gazette p 28 < https://edition.pagesuite-professional.co.uk/html5/reader/production/default.aspx?pubname=&edid=2aa61c48-9a66-48a6-85ff-8eae3d88faba > accessed 3rd October 2025Ferrari F ‘Forum Shopping: A Plea for A Broad and Value-Neutral Definition’ (2014) New York University School of Law: Public Law and Legal Theory Research Paper Series Working Paper No 14-39 < https://papers.ssrn.com/sol3/papers.cfm?abstractid=2474181 > accessed 2nd October 2025Fontes L ‘London is the World’s Top Location for International Arbitration, Research Reveals’ 1st May 2025 Legal Cheek < https://www.legalcheek.com/2025/05/london-is-the-worlds-top-location-for-international-arbitration-research-reveals/ > accessed 3rd October 2025Gill C ‘Protecting Your Reputation in Commercial Litigation’ Carter Ruck < https://www.carter-ruck.com/insight/protecting-your-reputation-in-commercial-litigation/ > accessed 14th May 2025Girvin S Carriage of Goods by Sea (Third edition, Oxford University Press) 2022Gu W ‘Hybrid Dispute Resolution Beyond the Belt and Road: Toward a New Design of Chinese Arb-Med (Arb) and its Global Implications’ (2019) Vol 29 Washington Internation Law Journal < https://digitalcommons.law.uw.edu/cgi/viewcontent.cgi?article=1827&context=wilj > accessed 6th October 2025Hall A ‘Enforcing ADR Clauses in International Business Contracts’ Aaron Hall Attorney < https://aaronhall.com/enforcing-adr-clauses-in-international-business-contracts/ > accessed 5th October 2025Hassan N and Wheeler T ‘Securing London’s Status as A World Leading Arbitral Seat: The Arbitration Act 2025’ June 2025 Beale & Co < https://beale-law.com/article/securing-londons-status-as-a-world-leading-arbitral-seat-the-arbitration-act-2025/ > accessed 3rd October 2025Hoftede G Cultural Consequences (SAGE Publications, 1984)ICC Dispute Resolution Statistics 2023 < https://iccwbo.org/wp-content/uploads/sites/3/2024/06/2023-StatisticsICCDispute-Resolution991.pdf > accessed 29th September 2025ICC Dispute Resolution Statistics 2024 < https://iccwbo.org/wp-content/uploads/sites/3/2025/06/2024-StatisticsICCDispute-Resolution.pdf > accessed 29th September 2025International Chamber of Commerce < https://iccwbo.org > accessed 29th September 2025International Chamber of Commerce < https://iccwbo.org > accessed 29th September 2025International Chambers of Commerce ‘Arbitration Costs and Fees 2025’ ICC < https://iccwbo.org/dispute-resolution/dispute-resolution-services/arbitration/costs-and-payment/ > accessed 5th October 2025International Chamber of Commerce ‘ADR Rules 2001, Article 9 Confidentiality’ < https://iccwbo.org/dispute-resolution/dispute-resolution-services/adr/mediation/mediation-rules/ > accessed 5th October 2025International Chamber of Commerce ‘Expedited Procedure Provisions’ ICC < https://iccwbo.org/dispute-resolution/dispute-resolution-services/arbitration/rules-procedure/expedited-procedure/ > accessed 6th October 2025International Chambers of Commerce ‘Incoterms 2020’ ICC < https://iccwbo.org/business-solutions/incoterms-rules/incoterms-2020/ > accessed 2nd October 2025International Trade Council ‘Arbitration versus Mediation in International Trade Disputes’ (2023) International Trade Council < https://tradecouncil.org/wp-content/uploads/2024/10/arbitration-vs-mediation.pdf > accessed 3rd October 2025Irdi B ‘Geopolitical Analysis Can – and Should – Affect Legal Risk Review’ 26th February 2024 Bloomberg Law < https://news.bloomberglaw.com/us-law-week/geopolitical-analysis-can-and-should-affect-legal-risk-review > accessed 14th September 2025Katsh E and Rule C ‘What We Need to Know About Online Dispute Resolution’ (2016) Vol 67 South Carolina Law Review 328 < https://scholarcommons.sc.edu/cgi/viewcontent.cgi?article=4166&context=sclr&hl=en-US > accessed 6th October 2025Kyung Kim M Comparative Research on the Treatment of Overriding Mandatory Rules of a Third Country (Hart Publishing 2025)Lalthasangzeli R and Banerjee J ‘Comprehensive Study on the Evolving Role of Mediation in Resolving Cross Border Commercial Disputes’ (2025) Vol 4 International Journal of Human Rights Law Review 554 < https://humanrightlawreview.in/wp-content/uploads/2025/05/Comprehensive-Study-on-the-Evolving-Role-of-Mediation-in-Resolving-Cross-Border-Commercial-Disputes.pdf > accessed 5th October 2025Leaver S ‘Effective Approaches to Alternative Dispute Resolution (ADR): Five Key Pointers for Success’ 23rd July 2025 Howes Percival < https://www.howespercival.com/effective-approaches-to-alternative-dispute-resolution-adr-five-key-pointers-for-success/ > accessed 5th October 2025Lee J ‘Long-Term Relationship Over Litigation: Mediation in WTO Dispute Settlement Proceedings’ (2025) Vol 24 World Trade Review 50Lominack R W ‘Examining Alternative Dispute Resolution in the Business Domain’ (2003) Vol 1 South Carolina Journal of International Law and Business 18London Court of International Arbitration < https://www.lcia.org > accessed 29th September 2025London Court of International Arbitration ‘Arbitration Rules 2020, Articles 22.1(x) and 22.1(xi)’ < https://www.lcia.org/DisputeResolutionServices/lcia-arbitration-rules-2020.aspx#Article%2022 > accessed 6th October 2025London Court of International Arbitration ‘Schedule of Arbitration Costs 2023’ LCIA < https://www.lcia.org/disputeresolutionservices/schedule-of-arbitration-costs-2023.aspx > accessed 5th October 2025MacGregor L, Peacey C, Ridsdale G Civil Litigation (Fifteenth Edition, Oxford University Press) 2022Mediate Legal ‘Our Fees: Commercial Mediation Fees’ Mediate Legal<https://mediatelegal.co.uk/our-fees/#:~:text=Commercial%20Mediation%20Fees&text=MediateLegal%20charge%20our%20fee%20at,1%20full%20day%20mediation%20session. > accessed 16th May 2025Menkel-Meadow C ‘The History and Development of “A”DR (alternative/appropriate dispute resolution)’ 1st July 2016 Volkerrechtsblog – International Law and International Legal Thought <https://voelkerrechtsblog.org/the-history-and-development-of-a-dr-alternativeappropriate-dispute-resolution/ > accessed 14th May 2025Mskhvilidze T ‘The Legal Nature of Forum Shopping in International Civil Procedure Law’ (2023) Vol 9 Law and WorldNolan-Haley J M ‘Court Mediation and the Search for Justice through Law’ (1996) Vol 74 Washington University Law Quarterly 47Parsons J ‘Don’t Be A Midnight Cowboy: Avoiding Common Pitfalls When Drafting and Negotiating Arbitration Clauses’ 1st November 2018 Thomson Reuters < http://arbitrationblog.practicallaw.com/dont-be-a-midnight-cowboy-avoiding-common-pitfalls-when-drafting-and-negotiating-arbitration-clauses/ > accessed 13th May 2025Part 58 Commercial Court < https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part58 > accessed 6th October 2025Pepperdine Law Blog ‘Arbitration v Litigation: Choosing the Right Path’ 4th April 2024 Pepperdine Caruso School of Law < https://law.pepperdine.edu/blog/posts/arbitration-vs-litigation-choosing-the-right-path.htm > accessed 6th October 2025Perrin H ‘Alternative Dispute Resolution (ADR) – An Overview of Some Common Mechanisms, And Their Strengths and Weaknesses in Context’ (2014) Vol 6 Plymouth Law and Criminal Justice Review 70Posin D Q ‘Mediating International Business Disputes’ (2004) Vol 9 Fordham Journal of Corporate and Financial Law 449, 467-470 < https://www.nottingham.ac.uk/research/groups/ctccs/projects/translating-cultures/documents/journals/mediating-international-business-disputes.pdf > accessed 6th October 2025RICS ‘Your Essential Guide to Alternative Dispute Resolutions’ RICS < https://www.rics.org/dispute-resolution-service/alternative-dispute-resolution > accessed 14th May 2025Samuel C et al ‘Implied Jurisdiction Agreements in International Commercial Contracts: A Global Comparative Perspective’ (2023) Vol 19 Journal of Private International Law 321Savage C A ‘Culture and Mediation: A Red Herring’ [1996] Journal of Gender and the Law 269< https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1239&context=jgspl > accessed 6th October 2025Singapore Convention on Mediation < https://www.singaporeconvention.org > 29th September 2025Singapore International Arbitration Center < https://siac.org.sg/about-us > accessed 29th September 2025Singapore International Arbitration Center ‘Expedited Procedure – Rule 5’ < https://siac.org.sg/wp-content/uploads/2022/06/SIAC-Rules-2016-English_28-Feb-2017.pdf > accessed 6th October 2025Slorach S, Embley J, Goodchild P, Shephard C Legal Systems and Skills (Fourth edition Oxford University Press, 2020)Smit H ‘Confidentiality in Arbitration’ (1995) Vol 11 Arbitration International 337Stebbing H and Furse I ‘West Tankers Stays on Course in Recent Anti-Suit Decision’ December 2018 Norton Rose Fulbright < https://www.nortonrosefulbright.com/en/knowledge/publications/88cad768/west-tankers-stays-on-course-in-recent-anti-suit-decision > accessed 6th October 2025Stephen Girvin Carriage of Goods by Sea (Third edition, Oxford University Press) 2022Strong S I ‘Beyond International Commercial Arbitration? The Promise of International Commercial Mediation’ (2014) Vol 45 Journal of Law and Policy 11Symeon C Symeonides Codifying Choice of Law Around the World: An International Comparative Analysis (Oxford University Press 2017)Symeon Symeonides ‘Party Autonomy in International Contracts and the Multiple Ways of Slicing the Apple’ (2013) Vol 39 Brooklyn Journal of International LawTackaberry (ed), International Commercial Arbitration for Today and Tomorrow 1991 Euro ConferencesThomas D R ‘Laytime and Demurrage – Contractual Concepts in a State of Flux’ (2014) Vol 20 The Journal of International Maritime Law 183United Nations on Conventions on Contracts for the International Sale of Goods (Vienna 11 April 1980) (CISG)UNITED NATIONS COMISSION ON INTERNATIONAL TRADE LAW ‘UNCITRAL, HC

Cite this work (OSCOLA)
Elaine Obika, 'ADR in Cross Border Contracts?' (2025) Volume 3 Issue 3 Menara Aspen Advisory Journal eMAAJ10itl [pinpoint] <https://maajana1.carrd.co/#adr> accessed [Day Month Year].'

Published by Menara Aspen Advisory London England United Kingdom.
MENARA ASPEN ADVISORY LTD – AUTHORED WORK NOT FOR REPRODUCTION OR DISTRIBUTION

Menara Aspen Advisory Journal ISSN 2979-1723

AI, Confidentiality, and the Future of Legal Privilege

Press Cmd + F (Mac) or Ctrl + F (Win) to find keywords.

Article No: eMAAJ20le
Category: le (legal ethics)
Published: 25th March 2026
Author: Elaine Obika

Abstract

This article traces the historical development of legal professional privilege from its origins in sixteenth‑century English common law to its modern status as a substantive legal right essential to the administration of justice. Initially grounded in the lawyer’s honour and professional ethics, privilege evolved through the eighteenth and nineteenth centuries into a client‑centred doctrine protecting candid communication as a prerequisite for effective legal representation. Contemporary jurisprudence now recognises privilege as a constitutional principle safeguarding both legal advice privilege and litigation privilege. Against this doctrinal backdrop, the article examines the disruptive implications of artificial intelligence for confidentiality and privilege. While AI tools offer new forms of assistance, their use outside the lawyer–client relationship raises significant risks, as communications with publicly accessible systems fall outside established privilege protections. The analysis considers the limits of the Kovel doctrine, which extends privilege to third‑party experts only when acting under the direction of legal counsel, and highlights the emerging “privilege gap” affecting self‑represented and economically disadvantaged individuals who rely on public AI tools. The article concludes that the future of legal privilege depends on integrating AI into legal practice in ways that preserve confidentiality, ensure equitable access to protected advice, and prevent technological innovation from deepening existing inequalities in the justice system.

Key Insights

Legal professional privilege evolved from an ethical duty to a substantive legal right shifting from lawyer‑centred honour in the sixteenth century to client‑centred protection by the nineteenth century.Modern privilege is foundational to justice, safeguarding candid communication through legal advice privilege and litigation privilege, now recognised as a constitutional principle in common law systems.AI tools disrupt traditional privilege assumptions because communications with publicly available AI systems fall outside the protected lawyer–client relationship unless mediated through counsel.The Kovel doctrine offers only partial protection, extending privilege to third‑party experts only when they operate under the direction and supervision of legal counsel — a condition not met when individuals independently use AI tools.A structural privilege gap is emerging, disproportionately affecting self‑represented and economically disadvantaged individuals who rely on public AI systems to navigate legal processes.The future of privilege depends on integrating AI into legal practice securely, ensuring that technological assistance enhances access to justice rather than deepening inequalities in who receives privileged protection.

Keywords

Legal Professional Privilege; Confidentiality; Artificial Intelligence; Kovel Doctrine; Access to Justice; Legal Ethics; Client–Lawyer Communications; Common Law.

Introduction

[p1] Legal professional privilege has deep historical roots, emerging gradually through the common law rather than being created at a single moment. Its earliest recognisable form can be traced to the sixteenth and seventeenth centuries in the English common law and chancery courts, where it initially developed not as a client centred right but as a rule grounded in the lawyer’s honour.[p2] Early doctrine treated confidentiality as a matter of professional ethics: a gentleman lawyer was expected not to betray the confidences of those who sought his advice.[p3] By the eighteenth and nineteenth centuries, the rationale evolved. Courts began to conceptualise privilege less as a matter of professional etiquette and more as a principle essential to the administration of justice. Historical analyses show that between the sixteenth and mid nineteenth centuries, judicial reasoning shifted toward recognising privilege as a rule that protects the client’s ability to communicate openly with their lawyer. This evolution reflected a growing understanding that effective legal representation requires candour, which cannot occur without confidentiality.[p4] In modern doctrine, privilege is understood as a substantive legal right rather than a mere evidential rule. It is now firmly established in common law and statute as a fundamental condition of justice, protecting both legal advice privilege and litigation privilege. Contemporary scholarship emphasises that its underlying rationale is process fairness: individuals must be able to seek legal advice without fear that their communications will later be compelled or disclosed.[p5] Today, courts describe legal professional privilege as a “fundamental human right long established in the common law”, underscoring its constitutional significance within modern legal systems.

[p6] The decision in United States v Heppner exposes a profound tension between traditional legal doctrines of confidentiality and the realities of modern digital life. Judge Rakoff’s conclusion—that user inputs into commercial AI tools are not confidential and therefore not privileged—rests on a doctrinal framework that predates cloud computing, machine learning systems, and the widespread reliance on AI for everyday reasoning. While the ruling is doctrinally defensible within the narrow logic of privilege law, it produces consequences that are increasingly misaligned with contemporary expectations of privacy, access to justice, and technological dependence.[p7] At the core of the judgment is the assumption that submitting information to an AI platform constitutes disclosure to a “third party”. This reasoning treats the AI provider as an external human recipient, even though the user’s interaction is with a non sentient system. The law therefore imports a legal fiction: AI is not a person, but the company operating the system is treated as if it were an observing bystander. This approach expands the meaning of “disclosure” far beyond its historical scope.[p8] Traditionally, confidentiality is lost when information is intentionally shared with another human who is outside the privileged relationship. Under Heppner, confidentiality is lost simply because information passes through a digital infrastructure owned by a commercial entity. This shift effectively collapses the distinction between use of a tool and communication with a third party, a distinction that has always been central to privilege doctrine.

[p9] The implications are far reaching. If the mere act of using an AI system constitutes disclosure, then the ruling indirectly acknowledges that AI providers may access, store, or process user inputs. This raises broader concerns about privacy, data governance, and the rights of ordinary users.Confidentiality is not a value reserved for litigants; it is a foundational expectation of digital citizenship. Children seeking information, vulnerable individuals searching for support, and self represented litigants attempting to understand their legal position all rely on online tools, including AI systems, to navigate complex problems. The Heppner logic implies that none of these interactions are confidential. This is a deeply troubling conclusion, and one that the court did not fully confront.

[p10] The ruling also risks entrenching inequality within the justice system. Wealthy litigants can afford private legal counsel and enterprise grade AI tools with contractual confidentiality guarantees. Self represented litigants—who already face structural disadvantages—may now be penalised for using publicly available AI tools to prepare their cases. In effect, the ruling creates a two tier system of digital privilege: one for those who can afford secure, private AI systems, and another for those who cannot. This undermines the principle that access to justice should not depend on financial resources

[p11] Furthermore, the decision creates a paradox for the legal profession itself. If uploading case related information to AI tools waives privilege, then lawyers and judges who use public AI systems risk compromising their own work product. Many courts and law firms have already responded by banning public AI tools, but this highlights the broader problem: the legal system is increasingly dependent on technologies that the doctrine of privilege is not equipped to handle. The law is attempting to apply 20th century confidentiality principles to 21st century digital infrastructures, and the result is doctrinal distortion.

The reasoning also invites examination of several broader issues:

1. The “Reasonable Expectation of Privacy” Angle
[p12] A major gap in Heppner is its failure to consider whether a user has a reasonable expectation of privacy when interacting with an AI tool. Even if privilege were technically waived, the threshold question remains: did the user reasonably believe their communications were private? Courts routinely apply this test in search and seizure cases, digital privacy disputes, cloud storage contexts, email accounts, and messaging apps. When a user reasonably believes their data is confidential, the law often protects it. AI tools complicate this analysis because they feel like private assistants, are used in private spaces, accessed through personal devices, and often present themselves as “your AI companion.” This creates a privacy expectation that the law has not yet reconciled.

2. The “Functional Equivalence” Argument
[p13] Another powerful angle is functional equivalence. If AI tools operate in ways comparable to calculators, spellcheckers, search engines, digital notebooks, or drafting assistants, then treating them as “third parties” becomes doctrinally incoherent. The law should focus on the function of the tool, not its form. When an AI system is used as an extension of the user’s own cognitive process — rather than as a recipient of information — privilege should remain intact. This argument directly challenges the conceptual foundation of Heppner

3. The “Cloud Storage Precedent” Angle
[p14] Courts have long held that storing documents in the cloud, using email, or relying on digital document management systems does not waive privilege, provided the user takes reasonable steps to maintain confidentiality. AI tools operate on similar infrastructure, yet Heppner treats them differently. If cloud storage is acceptable but AI processing is not, the inconsistency becomes analytically significant. It exposes a doctrinal mismatch between established digital privacy jurisprudence and the court’s treatment of AI.

4. The “Informed Consent” Problem
[p15] Most users do not meaningfully understand how AI systems store data, whether inputs are retained, whether models are trained on their content, or whether employees can access logs. If users cannot meaningfully consent to these data practices, it becomes difficult to argue that they can meaningfully waive privilege. This raises a deeper ethical and legal question about the validity of consent in technologically opaque environments

5. The “Digital Inequality” Angle
[p16] Beyond access to justice, there is a broader digital inequality concern. AI is rapidly becoming a literacy tool that helps people understand complex language, summarise documents, translate legal jargon, organise thoughts, compensate for neurodivergence, and overcome educational disadvantage. If using AI waives privilege, then digitally literate individuals are penalised, digitally excluded individuals are protected, the poor are disadvantaged, and the wealthy can simply purchase secure AI systems. This dynamic creates a new and troubling form of digital inequality.

6. The “Chilling Effect” on Legal Education and Public Understanding
[p17] If individuals fear that using AI to understand the law could waive privilege, they may avoid researching their rights, preparing their defence, seeking help, or learning about legal processes. This chilling effect undermines public legal education, the rule of law, the right to a fair trial, and the right to prepare a defence. At this point, the issue becomes constitutional rather than merely doctrinal.

7. The “Technological Neutrality” Principle
[p18] Many legal systems adopt the principle of technological neutrality: the law should not change simply because the technology changes. Writing a letter versus sending an email, storing files in a drawer versus the cloud, or using a calculator versus software should not alter the legal analysis. Heppner violates this principle by treating AI differently from other digital tools that perform comparable functions.

8. The “Human Rights” Angle
[p19] In UK and EU contexts, Articles 6 (fair trial) and 8 (privacy) are directly engaged when individuals cannot prepare their defence privately, when digital tools compromise confidentiality, or when vulnerable people cannot seek help without surveillance risk. This elevates the issue from a matter of evidence law to one of constitutional and human rights significance.

9. The “Regulatory Vacuum” Angle
[p20] AI is now widely used yet poorly regulated, inconsistently governed, and often misunderstood by courts. Heppner exposes the absence of statutory protections, clear confidentiality rules, AI specific privilege legislation, and guidance for self represented litigants. This regulatory vacuum is itself a policy problem worth highlighting

10. The “Slippery Slope” Angle
[p21] Finally, if AI is treated as a third party, then by logical extension spellcheckers, grammar tools, cloud based document editors, predictive text systems, voice assistants, and browser based legal research tools could also be considered third parties. This leads to absurd results and demonstrates the instability of the Heppner reasoning

[p22] Judge Rakoff drew a clear distinction between Heppner’s independent use of an AI tool and the circumstances in which privilege might have been preserved. While he held that Heppner’s unilateral interactions with the AI platform were not protected by attorney–client privilege, he expressly noted that the outcome could have been different had his lawyers directed the use of a secure AI system as part of the legal advice process. In that scenario, the Kovel doctrine may have applied, treating the AI tool as a functional extension of counsel’s ability to interpret, analyse, or prepare information for the defence. This observation underscores that the doctrinal issue is not AI per se, but the role it plays within the attorney–client relationship.

[p23] However, Judge Rakoff’s observation that the Kovel doctrine might have preserved privilege if counsel had directed the use of a secure AI tool exposes a deeper structural problem. This safeguard is only available to defendants who have legal representation and whose lawyers have the resources and expertise to deploy privileged compliant AI systems. Individuals who cannot afford counsel — and who therefore turn to publicly available AI tools to understand charges, prepare documents, or navigate the legal process — are left without equivalent protection. In this sense, the decision disproportionately affects self represented and economically disadvantaged defendants, creating a privilege gap that maps directly onto existing inequalities in access to legal assistance.

Conclusion

[p24] In the end, the challenge posed by AI is not simply technological but structural: it exposes the extent to which legal professional privilege has always depended on the conditions that make confidential legal advice possible. As AI tools become embedded in how individuals seek information and navigate legal problems, the law must ensure that privilege remains both meaningful and accessible. The task ahead is to adapt long‑standing principles to new forms of communication without allowing innovation to widen existing inequalities. The future of privilege will turn not on rejecting AI, but on integrating it in ways that preserve the confidentiality at the heart of the lawyer–client relationship.

Sources

United States v Heppner No. 25 Cr. 503 (JSR) (S.D.N.Y. Feb. 10, 2026).Greg Couston and Lucy Williams, ‘Key Principles of Privilege and Waiver of Privilege’ September 2016 Lawcover pp 92-93 <https://files.klgates.com/webfiles/CoustonWilliamsRiskLSJ%20Sept2016.pdf?utmsource=copilot.com > accessed 24th March 2026.Ho Hock Lai, ‘History and Judicial Theories of Legal Professional Privilege’ [December 1995] Singapore Journal of Legal Studies 558.Bankim Thanki et al The Law of Privilege (Fourth edition, online edition Oxford Law Pro) 1, 1-39 < https://doi.org/10.1093/law/9780198923008.003.0001> accessed 24th March 2026.Online Learning, ‘Legal Professional Privilege: Tips for Practitioners’ 2nd March 2026 The Law Society < https://www.lawsociety.org.uk/topics/civil-litigation/legal-professional-privilege-tips-for-practitioners?utmsource=copilot.com > 24th March 2026.The Law Society, 'Legal Professional Privilege: The law Society Guidance on its Usage' <https://www.thefraudlawyersassociation.org.uk/publications/Legal-Professional-Privilege-The-Law-Society-Guidance-on-its-usage.pdf?utm_source=copilot.com > accessed 24th March 2026.Declan McGrath, ‘Legal professional Privilege' (2001) Vol 36 Irish Jurist 125, 125-152.United States v Kovel (2d Circ. 1961).

Cite this work (OSCOLA)
Elaine Obika, 'AI, Confidentiality, and the Future of Legal Privilege' (2026) Volume 4 Issue 4 Menara Aspen Advisory Journal eMAAJ20le [pinpoint] <https://maajana1.carrd.co/#ailegalprivilege> accessed [Day Month Year].'

Published by Menara Aspen Advisory London England United Kingdom.
MENARA ASPEN ADVISORY LTD – AUTHORED WORK NOT FOR REPRODUCTION OR DISTRIBUTION

Menara Aspen Advisory Journal ISSN 2979-1723

Autonomy and Accountability: Is Doctrinal Certainty Costing Us Commercial Integrity?

Press Cmd + F (Mac) or Ctrl + F (Win) to find keywords.

Article No: eMAAJ22itl
Category: itl (international trade law)
Published: 1st April 2026
Author: Elaine Obika

Abstract
The autonomy principle in documentary credit law has long been valued for its certainty, speed, and neutrality. Yet as fraud becomes more sophisticated and global trade more complex, strict adherence to autonomy may no longer reflect commercial reality. This article examines whether the UK’s narrow fraud exception continues to serve international commerce, and whether comparative developments abroad suggest a more balanced and commercially responsive model.

Keywords
Autonomy principle; Documentary credits; Fraud exception; International trade; Banking law; Commercial integrity; Letters of credit; Comparative law; Bad faith; Trade finance.

Introduction

The autonomy principle — the rule that banks deal in documents rather than underlying disputes — remains a foundational doctrine in international trade finance. Its purpose is simple: protect the reliability of payment mechanisms by insulating banks from commercial conflict.
The autonomy principle posits that banks deal in documents, not goods. This doctrinal firewall insulates the credit from the underlying sales contract, preserving neutrality and facilitating global trade. Yet beneath its commercial nullity, a deeper jurisprudential tension persists: is autonomy a necessary abstraction, or a formalist relic that obscures substantive justice?
Autonomy’s strength lies in its clarity, reinforced by the doctrine of strict compliance. But this clarity often comes at the cost of injustice—especially in cases of fraud, illegality, or unconscionable conduct
Scholars such as Goode and Jack have questioned whether autonomy remains doctrinally sustainable in a world of increasing legal interdependence. Forged bills of lading, backdated certificates, and sham invoices routinely pass documentary muster exposing banks to reputational harm and compliance challenges.But the commercial world that produced this doctrine has changed. Fraud is more complex, transactions are faster, and cross‑border supply chains are more opaque. This raises a critical question: does doctrinal certainty still deliver commercial integrity, or has the balance shifted too far?

The UK’s Approach: Certainty Above All

[p1] English law prioritises predictability over equitable exceptions. Yet comparative jurisdictions (France, Germany, Singapore US ) demonstrate that autonomy need not mean inflexibility. UK courts have historically adopted a strict interpretation of autonomy. In United City Merchants v Royal Bank of Canada [1983] 1 AC 168, the House of Lords confirmed that only clear fraud apparent on the face of the documents justifies non‑payment. Suspicion, commercial context, or reckless behaviour is insufficient.
This approach protects the reliability of credits, but it also creates a structural vulnerability: misconduct that hides behind formally compliant documents can still succeed. The doctrine’s strength — its rigidity — may also be its weakness.

Comparative Developments: A More Flexible Fraud Exception

[p2] Other jurisdictions have begun to recalibrate the balance between certainty and commercial integrity.
United States: In Sztejn v J Henry Schroder Banking Corp (1941), the court allowed non‑payment where the beneficiary acted with clear fraud, even if not visible on the documents.
[p3] Singapore: The Court of Appeal in Winson Oil Trading Pte Ltd v OCBC & SCB [2024] SGCA 31 recognised that reckless indifference or manifest bad faith may justify refusal to pay.
Canada: Courts have similarly adopted a more context‑sensitive approach.
These jurisdictions have not seen a collapse in the reliability of credits. Their experience suggests that commercial responsiveness and doctrinal stability can coexist.Text

The Missing Evidence: Economic Impact

[p4] What is notably absent from the UK debate is empirical data. We lack transparency on:
the financial losses caused by fraud under strict autonomy
the cost and success rate of post‑payment litigation
whether broader fraud exceptions reduce disputes or increase trust
Without this information, the UK’s commitment to doctrinal purity may be preserving certainty at the expense of commercial integrity.
Lu Lu’s research highlights that the rigidity of autonomy — and the high rate of document rejection — has contributed to a decline in the use of documentary credits. Chumah Amaefule similarly observes that while fraud remains the traditional exception, illegality and unconscionability are gaining traction abroad, signalling a shift toward more commercially responsive models.

A Call for Re‑Evaluation, Not Abandonment

]p5] This article does not argue for dismantling autonomy. The principle remains essential to the functioning of international trade. But it is legitimate to ask whether the UK’s narrow fraud exception still aligns with:
modern commercial risks
the speed and complexity of global transactions
the economic realities of fraud
the need for trust in cross‑border finance
If a recalibrated model could reduce fraud, increase buyer confidence, and preserve reliability, then the question is not whether autonomy should survive, but whether its current form is commercially optimal.Conversely, one might reasonably fear that if autonomy were routinely pierced, litigators of Carter-Ruck’s calibre could dismantle the protective framework of trade finance, turning banks into litigation magnets and collapsing the infrastructure that letters of credit were designed to uphold. Also, documentary credits are advantageous to both the buyer and seller. They offer the seller greater security because he will be paid by a reliable paymaster. A buyer’s advantage is that they have a secure mechanism to pay the seller or if they do not have the funds, can use the credit to defer payment.

Conclusion

[p6] In international trade, law follows money — but money also follows trust. The autonomy principle has served commerce well for decades, but commercial integrity requires more than doctrinal certainty. It requires a legal framework that reflects the risks, behaviours, and economic pressures of modern trade.
Perhaps it is time to ask whether our legal doctrines are keeping pace with the commercial realities they are meant to manage.Should autonomy remain absolute, or evolve to accommodate substantive legality?
How do we reconcile doctrinal uniformity with jurisdictional divergence?
Could soft law instruments play a greater role in shaping exception doctrine?

References

United City Merchants v Royal Bank of Canada [1983] 1 AC 168.Sztejn v J Henry Schroder Banking Corp (1941) NY Misc.Winson Oil Trading Pte Ltd v OCBC & SCB [2024] SGCA 31.Lu Lu, 'The Exceptions in Documentary Credits in English Law' [2011] University of Plymouth < https://pearl.plymouth.ac.uk/cgi/viewcontent.cgi?params=/context/foahb-theses-other/article/1380/&pathinfo=Lu20L2011.pdf> accessed August 2025.Chumah Amaefule, 'The Exceptions to the Principle of Autonomy of Documentary Credits' University of Birmingham.Indira Carr and Peter Stone International Trade Law (Sixth Edition, Routledge 2018) 459.Uniform Customs and Practice of Documentary Credits (UCP) 600 articles 4(a) and 5.Power Curber International Ltd v International Bank of Kuwait [1981] 1 WLR 1233 [1241] (Lord Denning MR).Uniform Customs and Practice of Documentary Credits (UCP) 600 article 4(a).Indira Carr and Peter Stone International Trade Law (Sixth Edition, Routledge 2018) 464.Equitable Trust Co of New York v Dawson Partners Ltd (1927) 27 LIL Rep 49 [p52] (Lord Sumner); Moralice (London) Ltd v ED and F Man [1954] 2 Lloyds Rep 526 (McNair J); J H Rayner & Co Ltd v Hambros Bank Ltd [1943] 1 KB 37 [p 40] (Mackinnon LJ); Uniform Customs and Practice of Documentary Credits (UCP) 600 article 5; The Doctrine of Strict Compliance: Its Development and Current Construction’ in Francis D Rose (ed), Lex Mercatoria: Essays on InternationalCommercial Law in Honour of Francis Reynolds (LLP 2000).Goode R, ‘Abstract Payment Undertakings’ in Peter Cane and Jane Stapleton (eds),
Esays for Patrick Atiyah (Oxford University Press 1991).Raymond Jack, Ali Malek and David Quest Documentary Credits: The Law and Practice including Standby Credits and Demand Guarantees (Fourth edition, Bloomsbury Professional, 2009).Lisa Allen Greenway, ‘Reassessing the Autonomy Principle in Trade Finance: Lessons from Civil Law Jurisdictions’ 16 June 2025 Faculty of Law Blogs/University of Oxford < https://blogs.law.ox.ac.uk/oblb/blog-post/2025/06/reassessing-autonomy-principle-trade-finance-lessons-civil-law-jurisdictions > accessed 15th August 2025.Treu und Glauben Section 242 of the German Civil Code.BS Mount Sophia Pte Ltd v Join-Aim Pte Ltd [2012] SGCA 28.Montrod Ltd v Grundkötter Fleischvertriebs GmbH [2002] 1 WLR 1975 EWCAIndira Carr and Peter Stone International Trade Law (Sixth Edition, Routledge 2018) 453.International Standard Banking Practice (ISBP) < https://nacm.org/pdfs/webinars/ISBP-103017.pdf > accessed 14th August 2025.International Chambers of Commerce Centre for ADR ‘Documentary Instruments Dispute Resolution Expertise (DOCDEX)’ < https://iccwbo.org/dispute-resolution/dispute-resolution-services/adr/docdex/docdex-rules/ > accessed 14th August 2025.Dr Andrii Zharikov, ‘Resolving Disputes without Reference to National Laws: Analysis of the Nature and Practice of Documentary Instruments Dispute Resolution Expertise (DOCDEX) 1 <https://pure.port.ac.uk/ws/portalfiles/portal/58150950/Resolvingdisputeswithoutreferencetonational_laws.pdf> accessed 14th August 2025.The ICC DOCDEX System < https://www.thecommonwealth-ilibrary.org/index.php/comsec/catalog/download/1003/999/8519?inline=1 > accessed 14th August 2025.International Chamber of Commerce < https://iccwbo.org > accessed 17th August 2025.United Nations Commission on International Trade Law < https://uncitral.un.org > accessed 17th August 2025.

Cite this work (OSCOLA)
Elaine Obika, 'Autonomy and Accountability: Is Doctrinal Certainty Costing Us Commercial Integrity?' (2026) Volume 4 Issue 6 Menara Aspen Advisory Journal eMAAJ22itl [pinpoint] <https://maajana1.carrd.co/#autonomy> accessed [Day Month Year].'

Published by Menara Aspen Advisory London England United Kingdom.
MENARA ASPEN ADVISORY LTD – AUTHORED WORK NOT FOR REPRODUCTION OR DISTRIBUTION

Menara Aspen Advisory Journal ISSN 2979-1723

Mazur, Regulation, and the Sociology of Legal Practice: A Ruling Analysis

Press Cmd + F (Mac) or Ctrl + F (Win) to find keywords.

Article No: eMAAJ23al
Category: al (administrative law)
Published: 3rd April 2026
Author: Elaine Obika

Abstract

The Mazur ruling illustrates the tension between statutory regulation of legal services and the lived reality of litigation practice. While the Legal Services Act 2007 sets out a formal taxonomy of reserved activities, the Court of Appeal recognised that litigation is conducted through team‑based, delegated workflows that do not map neatly onto the statutory language. This analysis situates Mazur within the sociology of law, demonstrating how regulatory bodies act as institutional actors with their own incentives, how professional custom forms a “living law” that shapes legal meaning, and how courts reconcile the gap between legislation and practice. The decision reflects a broader pattern familiar from the development of lex mercatoria: practice evolves first, regulation lags behind, and judicial interpretation ultimately restores coherence. Mazur therefore represents not merely a doctrinal correction but a sociological moment in which the courts re‑aligned formal law with the operational realities of the legal profession.

Key Insights

Mazur exposes the gap between law on the books and law in action, showing that statutory definitions of “conducting litigation” cannot be applied without regard to real‑world practice.Regulators behave as institutional actors, influenced by internal incentives and professional hierarchies, rather than as neutral interpreters of statutory text.The Court of Appeal recognised the “living law” of litigation practice, where delegation and supervision are longstanding, embedded norms.Mazur mirrors the logic of lex mercatoria, where custom and practice shape legal meaning and courts adapt doctrine to commercial or professional reality.The ruling shifts professional power dynamics, validating the role of non‑solicitor legal staff and limiting the regulators’ ability to enforce rigid, text‑driven interpretations.Mazur is fundamentally an administrative law case, concerning the legality and reasonableness of a regulator’s interpretation of statute.The decision reinforces that law evolves through practice, and courts act as mediators between legislative abstraction and social reality.

1. Law on the Books vs Law in Action

[p1] The Mazur decision is a textbook illustration of the sociological distinction between formal law and law in action.
The Legal Services Act sets out a neat taxonomy of “reserved activities”, including the conduct of litigation. But litigation practice itself is messy, collaborative, and deeply dependent on delegation. The Court of Appeal recognised that the real conduct of litigation is carried out by teams, not individuals, and that the statutory language must be interpreted in that practical context.
Mazur therefore exposes the persistent gap between legislative abstraction and the lived reality of legal work.

2. Regulatory Bodies as Social Actors

[p2] The SRA and Law Society did not behave as neutral interpreters of statutory text. Their submissions reflected:
institutional incentives
reputational anxieties
professional hierarchies
bureaucratic inertia
From a sociological perspective, regulators are not passive guardians of doctrine but actors with their own interests. Mazur reveals how regulatory interpretations can drift away from professional reality when institutions prioritise internal logic over external practice.

3. The “Living Law” and the Role of Custom

[p3] Eugen Ehrlich’s concept of the living law — the norms that actually govern behaviour in a community — is central to understanding Mazur.
For decades, the living law of litigation practice accepted:
broad delegation
supervision by authorised persons
team‑based conduct of litigation
The regulators attempted to impose a rigid, textualist reading of the statute that ignored this embedded professional custom. The Court of Appeal restored the balance by recognising that the living law of practice carries interpretive weight.
Mazur is therefore a modern reaffirmation of Ehrlich’s insight that law evolves from social practice, not merely from legislative text.

4. Mazur as a Modern Lex Mercatoria Moment

[p4] The parallels with lex mercatoria are striking.
Medieval merchants developed their own commercial norms because formal law was too slow, rigid, and territorial. Courts later absorbed those norms because they worked.
Mazur follows the same pattern:
practice evolved first
regulation lagged behind
institutions resisted change
the courts reconciled the two
The Court of Appeal effectively acknowledged that the profession’s longstanding customs around delegation form part of the interpretive landscape. This is lex mercatoria logic applied to modern legal services.

5. Power, Status, and Professional Identity

[p5] Sociology of law also asks: who benefits from a particular interpretation?
A narrow reading of “conducting litigation” would:
entrench traditional solicitor pathways
marginalise paralegals, caseworkers, and litigation executives
reinforce professional hierarchies
A broader reading reflects the diversified reality of the modern legal workforce.
Mazur therefore represents not only a doctrinal correction but a shift in professional power dynamics — redistributing authority within litigation teams and acknowledging the legitimacy of non‑solicitor roles.

6. The Court as Interpreter of Social Reality

[p6] The Court of Appeal did more than interpret statutory language. It interpreted the profession itself.
Its message was clear:
“This is how litigation actually works, and the law must be read in that context.”
This is a sociological act as much as a legal one. Courts often serve as mediators between formal doctrine and social reality, and Mazur is a prime example of judicial recognition of professional practice as a source of legal meaning.

Doctrinal Summary of the Mazur Ruling

[p7] 1. Issue
Whether certain litigation tasks carried out by non‑authorised staff amounted to the “conduct of litigation” under the Legal Services Act 2007, thereby requiring individual authorisation.[p8] 2. High Court’s Approach
The High Court adopted a literal, restrictive interpretation, treating a wide range of delegated tasks as reserved activities.
This interpretation threatened:
the standard functioning of litigation teams
the role of paralegals and caseworkers
the commercial viability of legal practice[p9] 3. Court of Appeal’s Reasoning
The Court of Appeal rejected the High Court’s rigid approach and held that:
the firm, not the individual staff member, conducts litigation
delegation under supervision is lawful and normal
the statutory language must be read in light of longstanding professional practice
the regulators’ interpretation was unrealistic and unworkable[p10] 4. Holding
Delegated litigation tasks performed by supervised staff do not constitute the “conduct of litigation” by unauthorised persons.
The Court restored the orthodox understanding of litigation practice.[p11] 5. Significance
Mazur preserves the functional structure of litigation teams and limits the scope of regulatory overreach.

Sociological Commentary

[p12] Mazur is a paradigmatic example of the sociology of law in action. It demonstrates that legal meaning is shaped not only by statutory text but by:1.institutional behaviour2.professional custom3.economic pressures4.workflow realitiesThe regulators’ submissions reflected bureaucratic incentives and professional protectionism, not doctrinal purity.[p7] The Court of Appeal, by contrast, grounded its reasoning in the actual structure of litigation work — a team‑based, delegated model that has existed for decades.This mirrors the evolution of lex mercatoria, where commercial practice shaped legal norms long before courts formalised them. In Mazur, the “living law” of litigation practice prevailed over the regulators’ rigid textualism.The ruling therefore stands as a reminder that law is a social institution, not a mechanical code.
Courts act as interpreters of social reality, ensuring that regulation remains aligned with the profession it governs.

Conclusion: Mazur and the Evolution of Legal Meaning

[p13] Mazur demonstrates that law is not a static code but a dynamic system shaped by:
custom
institutional behaviour
professional norms
economic pressures
judicial interpretation
Just as lex mercatoria once pulled commercial law toward the needs of merchants, modern litigation practice has pulled the meaning of “conducting litigation” toward the realities of team‑based legal work.
Mazur is therefore more than a regulatory dispute — it is a sociological moment in which the courts re‑aligned formal law with the living law of the profession.

References

Mazur & Anor v Charles Russell Speechlys LLP [2025] EWHC 2341 (KB).Chartered Institute of Legal Executives (CILEX) v Mazur and others [2026] EWCA Civ 369.The Law Society, ''Mazur v Charles Russell Speechlys: What it Means for Litigators' 31st March 2026 The Law Society <https://www.lawsociety.org.uk/topics/dispute-resolution/mazur-v-charles-russell-speechlys-litigators> accessed 3rd April 2026.James F O'Day, 'Erhlich's Living Law Revisited - Further Vindication for a Prophet Without Honour' (1966) Volume 8 Issue 1 Case Western Reserve Law Review 210, 211-212 <https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=4452&context=caselrev> accessed 3rd April 2026.

Cite this work (OSCOLA)
Elaine Obika, 'Mazur, Regulation, and the Sociology of Legal Practice: A Ruling Analysis' (2026) Volume 4 Issue 7 Menara Aspen Advisory Journal eMAAJ23al [pinpoint] <https://maajana1.carrd.co/#mazur> accessed [Day Month Year].'

Published by Menara Aspen Advisory London England United Kingdom.
MENARA ASPEN ADVISORY LTD – AUTHORED WORK NOT FOR REPRODUCTION OR DISTRIBUTION

Copyright & Permissions

Copyright Notice All written content on this website is my original work and is protected by copyright. This includes essays, articles, reflections, commentary, and any other text published here.Use of Content You may not copy, reproduce, distribute, adapt, translate, or republish any content from this website without my prior written permission. This applies to both personal and commercial use.Linking You are welcome to link to my work, provided the link directs readers to the original page on this website and does not imply endorsement or affiliation.Excerpts Short quotations (a few lines) may be used for commentary, academic reference, or review, provided clear and visible credit is given, including my name and a link to the original page.Prohibited Uses The following are not permitted without written permission:Reposting full articles or substantial extractsUsing my writing for AI training, dataset creation, or automated scrapingRepublishing my work on blogs, newsletters, or social platformsCommercial use of any kindCreating derivative works based on my writingPermissions If you would like to request permission to use or reference my work beyond the allowances above, please contact me directly at [email protected] with details of your intended use.Respect for Creative Work This website exists to share original writing. Thank you for respecting the time, thought, and creative labour that goes into each piece.

Legal Notices

Privacy PolicyI collect only the information necessary to operate this website, such as
basic analytics and any details you choose to submit through a contact form. Your information is never sold or shared. If you contact me, I will use your details solely to respond to your message.CookiesThis website may use cookies for basic functionality and anonymous analytics. You can adjust your browser settings to manage or disable cookies at any time.DisclaimerAll writing on this website reflects my personal views, interpretations, and creative expression. Nothing published here constitutes legal, financial, or professional advice. Readers should not rely on any content as a substitute for independent advice.Fraud & ScamsI do not contact individuals asking for money, personal information, or payment details. If you receive a message claiming to be from me that seems suspicious, please ignore it and contact me directly through the website.AccessibilityI aim to make this website accessible to all users. If you experience difficulty accessing any content, please contact me and I will do my best to assist.

eMAAJ ARK Persistence Policy

eMAAJ ARK Persistence Policy
Menara Aspen Advisory is committed to maintaining the persistence of all ARK identifiers assigned to the eMAAJ journal and its associated publications.
We guarantee that:
ARKs will continue to resolve to valid, accessible landing pages.
If URLs or website structures change, ARK target URLs will be updated accordingly.
ARKs will not be reassigned or deleted.
Metadata associated with ARKs will remain available for long‑term reference.
Our ARKs follow the pattern:

ark:/NAAN/eMAAJ-category-NN

and resolve via

https://n2t.net/ark:/NAAN/${value}

Text

Menara Aspen Advisory