In a winding-up, the property of the insolvent company must be liquidated and the proceeds distributed pari passu amongst its unsecured creditors. This being mandatory, a company cannot by contract arrange to do things differently, and a provision purporting to do so will be void (British Eagle International Airlines v. Compagnie Nationale Air France [1975] 1 W.L.R. 758). The scope of this common law rule of public policy is, however, notoriously uncertain. Neuberger J.’s judgment in Money Markets International Stockbrokers Ltd. v. London Stock Exchange Ltd. [2002] 1 W.L.R. 1150, based on a thorough and erudite review of the authorities, suggests some helpful clarifications.

The rule against bias has undergone a number of modifications during the last ten years. In particular, two elements of the test for apparent bias have been widely debated, namely the degree of bias and the perspective from which bias should be viewed. The cases before 1992 on each element of the test were difficult to reconcile, but in R. v. Gough, Lord Goff held that the test required a “real danger” of bias when viewed from the perspective of the court. However, attempts were made to amend the test after forceful criticism by the High Court of Australia, and the related observation of Sir Thomas Bingham M.R. that Gough abolished the principle that “justice must not only be done, but must also manifestly be seen to be done”.

Companies, being legal abstractions, can act only through human agents. A necessary consequence of a company's legal abstraction is the development of rules of attribution, such as those that govern the company's liability for the wrongful acts of its agents. Given that companies have been a significant feature of the economic, social, and legal landscape since the nineteenth century, it is not surprising that those rules are fairly well settled, if not always easy to apply.

Perhaps surprisingly, there is less agreement on the rules governing the attribution of liability to agents acting in the course of a company's business. In recent years, Commonwealth courts have seen repeated challenges to the boundaries of corporate agents’ liability, with claims against corporate agents being made in deceit, in negligent misstatement, for infringement of copyright, for negligent property damage, and even for breach of contract. The courts have yet to offer a coherent response.

Thirty years ago the Australian High Court described the law as “marching with medicine but in the rear and limping a little” (Mount Isa Mines v. Pusey (1970) 125 C.L.R. 383). Today this maybe an apt description of the lag between law and recent advances in genetic technology. In R. (Quintavalle) v. Secretary of State for Health [2003] UKHL 13, [2003] 2 W.L.R. 692 the applicants asked the court to declare whether embryos created by cell nuclear replacement (“CNR”) (a form of human cloning involving an enucleated human egg and a cell from a donor's body) were regulated under the Human Fertilisation and Embryology Act 1990, which was passed in an era when embryos were only ever created by fertilisation of an egg by a sperm.

It is a pillar of equity that “a person in a fiduciary position must not make a profit out of his trust which is part of the wider rule that a trustee must not place himself in a position where his duty and his interest may conflict” (per Lord Upjohn in Phipps v. Boardman [1967] 2 A.C. 46, 123). The House of Lords in Regal (Hastings) v. Gulliver [1942] 1 All E.R. 378 demonstrated the unrelenting nature, and some have argued inequitable severity (see, e.g., Jones, (1968) 84 L.Q.R. 472), of the director-fiduciary’s obligations to his company. Such “absolutism” (Lowry & Edmunds, [2000] J.B.L. 122) is necessary because human infirmity makes it difficult to resist temptation, and it is only thus that the level of conduct for fiduciaries can be “kept at a level higher than that trodden by the crowd” (per Cardozo C.J. in Meinhard v. Salmon (1928) 249 N.Y. 456, 464). The principle that a director is free to act as a director of or otherwise engage in a competing business, established at the turn of the 19th century by Chitty J. in London & Mashonaland Exploration Co. Ltd. v. New Mashonaland Co. Ltd. [1891] W.N. 165 and assumed correct by Lord Blanesburgh in Bell v. Lever Bros. Ltd. [1932] A.C. 161, 195, is therefore clearly an aberration and somewhat difficult to defend. A reconsideration of the rule would be timely. In this light, the decision of the Court of Appeal in Plus Group Ltd. and others v. Pyke [2002] EWCA Civ 370 is something of a missed opportunity as both Brooke L.J. and Jonathan Parker L.J. thought it unnecessary to attempt a resolution. Sedley L.J., although perspicuous about his discomfort with it, nevertheless admitted that Mashonaland “is the law that binds us”. His Lordship did however observe that “if one bears in mind the high standard of probity which equity demands of fiduciaries, and the reliance which shareholders and creditors are entitled to place upon it, the Mashonaland principle is a very limited one”.

How legally significant is the presence or absence of the genetic connection between a man and a child in the determination of paternity? The common law regarded it as all important and it is still the case that the status of legal father will generally follow proof, or in the case of marriage to the mother the presumption, of this genetic connection. This is the normal rule which will apply unless there is something to displace it (see, for example Bracewell J. in Re B (Parentage) [1996] 2 F.L.R. 15). Where assisted reproduction takes place, however, the Human Fertilisation and Embryology Act 1990 openly treats as legal parents some of those who may lack this genetic connection and denies legal parentage, in the case of licensed sperm donation, to those donating sperm despite their obvious genetic link with the child.

Anti-Social behaviour sits at a strange juncture in the law. Maybe this is because of the many forms that it takes—noise nuisance, fouling public areas, aggressive and violent conduct. Some of this is simply non-neighbourly whereas some is quite clearly criminal. The legal responses to anti-social behaviour also take many forms, but the main focus—notwithstanding that anti-social behaviour affects the whole community—has been to see it as a problem to be tackled by local authorities wearing their “housing management” hat. Even the much trumpeted anti-social behaviour order (asbo), which looks in many respects like part of a criminal code, can be applied for by local authorities and other registered social landlords. This focus on the housing dimension may well have fed the notion that it is council tenants who cause anti-social behaviour, and council tenants alone who the local authority is responsible to, and for.

The recent decision of the Court of Appeal in Smith v. Henniker-Major & Co. [2002] EWCA Civ 762, [2002] 3 W.L.R. 1848 demonstrates the mess that the United Kingdom has made of its implementation of the First Directive of the European Union on harmonisation of company law and the interpretation of the legislation.

After White v. White [2001] 1 A.C. 596, to divide assets fairly between divorced spouses the court must consider all the relevant factors set out in section 25 of the Matrimonial Causes Act 1973 and then check the tentative award against the “yardstick of equality, providing good reasons for any inequality (p. 605). The decision of the Court of Appeal in Foster v. Foster [2003] EWCA Civ 565 is the latest instance in which the court has examined the proper application of the “yardstick.

In the late-nineteenth century, Dicey defined with clarity the modern doctrine of parliamentary sovereignty, identifying both its positive aspect, that Parliament is legally empowered to make any law, and its negative aspect, that no court, institution or person is legally empowered to set Acts of Parliament aside. The historical genesis of this modern understanding of parliamentary sovereignty was, and continues to be, controversial. In his recent study of parliamentary sovereignty, Jeffrey Goldsworthy suggests that the sixteenth-century lawyer Christopher St. German, author of Doctor and Student as well as a series of publications relating to the Henrician Reformation, was likely “the first English writer to propound a comprehensive theory of parliamentary sovereignty”— a controversial claim given St. German's insistence that any “statute” made against the law of nature or reason is “voyd”.4 However, Goldsworthy appears to be supported by an impressive list of historians.

Freedom of establishment has been a promise not only to individuals, but also to companies, ever since the foundation of the EEC, and the relevant articles in the EEC Treaty have long been declared to have direct effect (Reyners v. Belgium [1974] E.C.R. 631). Yet until recently companies faced extra hurdles. A majority of the Member States applied the so-called “theory of the real seat” (for references see H. Xanthaki, “Centros: is this really the end for the theory of the siège réel?” (2001) 22 Company Lawyer 2). In essence, the theory is a rule of private international law that a company will be treated according to the law of its central place of management (the “real seat”), notwithstanding that it may have been incorporated in a different jurisdiction. In such a case, the company will not fulfil the formal requirements of registration in the jurisdiction of its real seat and will normally lack the quality of a legal person there. The aim of the theory is to preserve national company law as a policy instrument in areas such as corporate governance, by disallowing pseudo-foreign companies, i.e. companies set up to do business mainly or exclusively in one jurisdiction, but evading local regulation there by incorporating abroad. But the theory can strike beyond this goal, as the facts of Case C-208/00 Überseering BV v. Nordic Construction Company Baumanagement GmbH demonstrate.

The widespread commercial planting of genetically modified crops has yet to be sanctioned in Europe, but cannot be far away. This is a prospect that arouses considerable public concern as to both the health and environmental implications of genetically modified organisms (“GMOs”). The application of biotechnology in the development of new agricultural products raises major concerns not only for environmental protection, however, but also for the potential role of liability regimes in the allocation and protection of property rights. In the European Union, a regulatory framework for field trials and the commercial exploitation of GM crops was introduced at a relatively early stage in the development of agricultural biotechnology. The Directives on the Deliberate Release into the Environment of Genetically Modified Organisms and on the Contained Use of genetically modified microorganisms1 require technocratic authorisation processes based on a scientific risk assessment of GM releases.

In November, M. Canivet, the First President of the French Cour de cassation, gave a public lecture in Cambridge on la responsabilité du juge, where he described the recourse that modern French law provides for citizens who find themselves ill-served by the legal system. He told us that in France, defendants remanded in custody pending trial now receive automatic compensation if at trial they are acquitted, and that citizens can bring civil claims against the State where they are hurt by the malfunctioning of justice.

A recent decision of the French Cour de cassation (Cass. Civ. 1re, 19 nov 2002, Banque Worms c. Epoux Brachot, J.C.P. 2002.II,10 201, concl. Sainte-Rose, note Chaillé de Néré, D.2003.797, note Khairallah) provides an interesting contribution to the recurrent debate, fuelled by the House of Lords request for a preliminary ruling from the European Court of Justice in Turner v. Grovit [2001] UKHL 65, [2002] 1 W.L.R. 107, over the availability of extraterritorial injunctive relief within the scope of the Brussels I Regulationwhether in the form of anti-suit injunctions in cases of parallel proceedings, or indeed of freezing orders under Article 31 in relation to assets situated in another Member State.

The corporate director is subject to duties of good faith and loyalty. As he stands in a fiduciary position vis-à-vis the company on whose board he sits, he is subject to strict obligations of self-denial. Indeed, ensuring adherence to an absolute rule in this regard is justified by the need to control, albeit in a necessarily imperfect and arguably ineffective manner, the exercise of discretion by the director who stands in an undoubted position of power with respect to the company. A director therefore is obliged to avoid a conflict of interests and is prohibited from profiting from his office. What then of the erstwhile director?

Many judgment debtors have assets in England and the English courts have wide powers to enforce both domestic and foreign judgments. In the past the courts have considered that garnishee orders (now called third party debt orders) could be made over assets abroad. However, the House of Lords has recently refused to grant such orders over bank accounts held with branches overseas. In Socit Eram Shipping Co. Ltd. v. Cie. Internationale de Navigation [2003] UKHL 30, [2003] 3 W.L.R. 14, Soc. Eram sought to enforce a French judgment, requesting a final third party debt order over various accounts held by the judgment debtors with HSBC in Hong Kong. The bank had a branch in London at which it could be served with the order. It argued that it was at risk of double jeopardy as the Hong Kong courts would not recognise the English third party debt order as discharging its liability.

Great honour as it is, it is nonetheless daunting to deliver the Sir David Williams Lecture in the presence of Sir David himself, and on a subject close to his own interests. The ideal David Williams Lecture would obviously be a lecture given by David Williams. But as that is not to be—at any rate not this evening—my lecture, by definition then not the ideal lecture, will I hope be received as at least a personal tribute to an inspiring constitutional lawyer.

Disciplinary investigations into professional misconduct allegations almost inevitably involve examination of documents held by the person under investigation. Where such documents attract legal professional privilege, belonging either to the professional's client or to the professional himself, the question arises whether the investigator can demand their production. That question becomes particularly acute where the investigation concerns the professional conduct of a barrister or solicitor, as in the recent New Zealand case, B v. Auckland District Law Society [2003] UKPC 38.

The long wait for a privacy law in England might appear finally to be over. The Lord Chancellor predicted that his Human Rights Bill, on enactment, would usher one in. Some two months after the resulting Act came into force the Court of Appeal seemed, with remarkably little fuss, duly to recognise an action for invasion of privacy in Douglas & Zeta-Jones v. Hello!2 Moreover, this was achieved by employing (it was said) only the existing action for breach of confidence, and so the court could avoid frightening the horses, by appearing not to be doing anything new (or noteworthy) at all. Further, the court deftly avoided the contested quicksands of the horizontal effect (or not) of the Human Rights Act 1998.

This article will consider recent case-law developments concerning the standing conditions that natural and legal persons must satisfy in order to bring annulment proceedings against acts of EC institutions. These conditions, set out in Article 230(4) EC, have been so narrowly interpreted by the European Court of Justice for over forty years that private parties have rarely been able to surmount this formidable admissibility barrier when challenging Community acts. In March 2002, Advocate General Jacobs delivered a compelling Opinion in Unión de Pequeños Agricultores (UPA) v. Council, where he suggested a new interpretation of the test of individual concern, which stands at the core of the locus standi requirements in Article 230(4) EC. Only a few weeks later the Court of First Instance dramatically departed from previous case law and re-defined that same test in Jégo Quéré v. Commission, although it did so in narrower terms than those proposed by Advocate General Jacobs. However, any hopes that the time was ripe for a re-examination of the case law on individual concern, were dashed by the European Court in its judgment in UPA v. Council. The Court did not follow either the suggestions of Advocate General Jacobs or of the Court of First Instance, stating instead that it was for the Member States acting in the European Council and not for the Court, to reform the conditions of admissibility set out in Article 230(4) EC.