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Miriam Goldby

Except in situations where a shipper ships goods under a negotiated (volume) contract, in view of their specific nature, contracts of liner carriage are contracts of adhesion. As such, they require regulation in order to protect the interests of the party who accepts the other’s standard terms. This chapter examines the current international legal framework which regulates such contracts, focussing specifically on this framework’s implementation within English law. The current state of this regulatory framework raises two types of issue: (1) grey areas where the applicability of the framework is uncertain and (2) aspects of the transaction on which the framework is silent (i.e. gaps in the regulation). This chapter uses recent case law to illustrate how these grey areas and gaps in the regulatory framework could lead to a situation where the allocation of risks and liabilities is uncertain. It argues that (1) in the case of grey areas, a purposive interpretation of the available rules can overcome the uncertainties and (2) in the case of gaps in the regulation, if the contract itself fails to allocate the relevant risks and liabilities unambiguously, the courts should resolve the ambiguity by adopting a reasonable (and economically efficient) allocation of risk. The chapter also argues that it might be open to the courts, depending on the circumstances, to strike out terms which allocate risk and liability in an unreasonable manner.

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Miriam Goldby

The need to ensure a high level of compliance with reporting requirements is key to the achievement of the objectives of AML legislation. The volume of funds that is estimated to be laundered through the UK financial system on an annual basis has not reduced since the large-scale reforms introduced with the Proceeds of Crime Act 2002 (PoCA). Neither is the amount of money being recovered reassuring. This chapter undertakes a theoretical analysis and evaluation of enforcement decisions taken with respect to breaches by bankers of their reporting obligations and finds that prosecution of individuals appears never to have been resorted to with respect to a banker since the Financial Services Authority (FSA) was established and since the coming into force of PoCA. In order to evaluate these enforcement decisions, the chapter examines where the powers and duties lie for investigating and prosecuting failure to report and what might be the reasons for the rarity of prosecutions of individuals operating in the financial sector. It argues that in order to improve compliance, steps may need be taken to change corporate culture within banks and that legal reforms clarifying where the relevant powers to investigate and prosecute lie may be necessary.

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Miriam Goldby

The performance of a cross-border sale on cost, insurance, freight (CIF) terms depends on the seller’s ability to tender conforming documents to the buyer or to a bank which is either performing a documentary collection service or financing the transaction by adding a separate and independent undertaking to pay on presentation of conforming documents. Transitioning from paper documents to electronic data is desirable for a number of reasons, including: (i) to reduce costs; (ii) to increase efficiencies in the supply chain; (iii) to maximise visibility into business processes, so as to reach a greater understanding of transactional risks and to identify and address unmet customer needs. This chapter addresses the question, what effect would the replacement of paper documents with electronic data have on contractual obligations involving the tendering or presentation of documents? And, more particularly, are commonly applied rules governing such tender and presentation ready for the transition?