X-Sender: lawf0014@sable.ox.ac.uk Date: Sun, 1 Dec 1996 21:32:16 -0600 To: restitution@maillist.ox.ac.uk From: lionel.smith@Law.oxford.ac.uk (Lionel Smith) Subject: restitution Web News Sender: owner-restitution@maillist.ox.ac.uk Reply-To: restitution@maillist.ox.ac.uk Status: RO Greetings to all, It appears that the new list server is doing yeoman service. Let me know if you do not agree. Here is some web-oriented news. 1. There is a new service which allows you to get HL judgments on the web. The home page for the Palace of Westminster is http://www.parliament.uk You can find your way to the judicial business of the HL from there, or go directly to http://www.parliament.the-stationery-office.co.uk/pa/ld/ldjudinf.htm This service only includes judgments handed down since 14 November 1996, but claims to make them available within 2 hours of their release. For information, Australian High Court cases dating back to 1947 are available at http://www.austlii.edu.au/au/cases/cth/high_ct/ and Supreme Court of Canada cases since 1993 are at http://www.droit.umontreal.ca/SCC.html If anyone has information on parallel services in these or other jurisdictions, please let me know. 2. List members will also be interested in the Web Journal of Current Legal Issues, which is at http://www.ncl.ac.uk/~nlawwww/ The newest edition (29 Nov) includes a case note on Jones v. Jones (which I mentioned in an earlier posting) by Wan Er Chu and Paul Todd. You can go directly to this note at http://www.ncl.ac.uk/~nlawwww/1996/issue5/erchu5.html That's it for now, Lionel Smith Date: Mon, 02 Dec 1996 11:50:09 +0000 To: restitution@maillist.ox.ac.uk From: birks@ermine.ox.ac.uk (Peter B.H. Birks) Subject: Re: restitution archive request Sender: owner-restitution@maillist.ox.ac.uk Reply-To: restitution@maillist.ox.ac.uk Articles and cases. The Restitution Research Resource is published as a supplement to the Restitution Law Review. It is also available on disk. It contains a full (but obviously not completely comprehensive) classified list of cases and articles. Last issue 1994, new edition due in February 1997. The Restitution Law Review itself carries a full Digest of worldwide literature and cases year by year. Inquiries to the editor of the Restitution Law Review: Professor F.D. Rose, c/o Mansfield Press POB 69, Oxford OX3 7HD, UK. Alternatively, try peter.birks@all-souls.ox.ac.uk, identifying the subject as RLR/RRR. ********************************************************** Peter B.H.Birks Q.C., D.C.L., F.B.A., Regius Professor of Civil Law, University of Oxford Postal Address (College) All Souls Oxford OX1 4AL Telephone 44-(0)1865-279338 Fax 44-(0)1865-279299 Postal Address (Home) Oak Trees, Sandy Lane, Oxford OX1 5HN Telephone 44-(0)1865-735625 ************************************************************ X-Sender: lawf0014@sable.ox.ac.uk Date: Mon, 2 Dec 1996 13:52:11 +0000 To: restitution@maillist.ox.ac.uk From: lionel.smith@Law.oxford.ac.uk (Lionel Smith) Subject: restitution more web sites Sender: owner-restitution@maillist.ox.ac.uk Reply-To: restitution@maillist.ox.ac.uk Eugene Fung has provided me with some further info about cases on the web. It follows. US Supreme Court and NY Court of Appeals - http://www.law.cornell.edu US Courts of Appeal and State Courts - [listing of links to relevant sites] http://www.law.cornell.edu:80/opinions.html European Court of Justice - http://europa.eu.int/cj/en/index.htm International Court of Justice - http://www.law.cornell.edu/icj Swarbrick & Co. database of UK law (including cases) - http://chianti.ipl.co.uk/lawsoc/swarform.html German Constitutional Court (BVG) - http://www.uni-wuerzburg.de/glaw/german.html (includes some English translations) German Federal Court (BGH) - http://www.rz.uni-karlsruhe.de/~BGH/ South Africa - http://www.law.wits.ac.za/archive.html French Conseil Constitutionel 1995 - http://members.aol.com/ftheret/index.htm Slovak Republic - http://www.tuzvo.sk/court Republic of Slovenia - http://www.sigov.si/us/eus-ds.html Croatia - http://www.nn.hr/Glasilo/Index.htm Republic of Estonia (includes decisions in English) - http://www.nc.ee/ Mexican Supreme Court - http://info1.juridicas.unam.mx/sistemas.htm#CONST Zambian Supreme Court - http://lii.zamnet.zm/ E-mail delivery of Supreme Court international Bulletin (SCiB), a weekly bulletin of summaries of all new significant decisions of the Supreme Court of the United States, Supreme Court of Canada, High Court of Australia (and the UK House of Lords soon): SCiB is distributed as a HTML document attached to an email. Subscription on the Web is at http://www.farislaw.com/lists.html Subscription by E-Mail: include the word "subscribe" (without the "") in the body of an email to faris3-request@farislaw.com. If you wish to subscribe to a text-only e-mail service of information concerning US Supreme Court judgments, send the following message to listserv@listserv.law.cornell.edu : subscribe liibulletin [followed by your name -- all on one line] For New York Court of Appeals decisions, send the following message to listserv@listserv.law.cornell.edu : subscribe liibulletin-ny [followed by your name -- all on one line] Times Law Reports are available through the Times web page. http://www.the-Times.co.uk Date: Mon, 02 Dec 1996 18:52:05 -0800 From: John Murphy To: restitution@maillist.ox.ac.uk Subject: restitution Australian Decisions Sender: owner-restitution@maillist.ox.ac.uk Reply-To: restitution@maillist.ox.ac.uk Thanks to Lionel for the URLs. If anyone is interested there are more than the High Court of Australia decisions available at AUSTLII. The URL to go to is http://www.austlii.edu.au Regards John Murphy 160 Hellawelll Road Sunnybank Hills Qld 4109 Student-at-Law X-Sender: lawf0014@sable.ox.ac.uk Date: Tue, 3 Dec 1996 22:26:50 +0000 To: restitution@maillist.ox.ac.uk From: lionel.smith@Law.oxford.ac.uk (Lionel Smith) Subject: restitution another article Sender: owner-restitution@maillist.ox.ac.uk Reply-To: restitution@maillist.ox.ac.uk Here is another article which will be of interest to some members: B. Fehlberg, "The Husband, The Bank, The Wife, and Her Signature - The Sequel" (1996) 59 MLR 675. This looks at cases after O'Brien and how they have applied that ruling. Lionel Smith X-Sender: birks@ERMINE.OX.AC.UK Date: Wed, 04 Dec 1996 17:45:19 +0000 To: restitution@maillist.ox.ac.uk From: birks@ermine.ox.ac.uk (Peter B.H. Birks) Subject: restitution Re: Conflicts/proprietary claims Sender: owner-restitution@maillist.ox.ac.uk Reply-To: restitution@maillist.ox.ac.uk Re Polly Peck International Plc In the Ch.D. on 29 November Rattee J decided not to strike out, but on the contrary to give leave for, a proprietary claim against Polly Peck by former owners of real property in N.Cyprus, expropriated after the invasion by the Turkish army, in respect of enrichment received by the sale of shares in its allegedly trespassing subsidiaries, whose title to the properties depended solely on the law of the unrecognized Northern govt. The administrators of PP intended to distribute to unsecured creditors; the plaintiffs seek to come in ahead by virtue of their proprietary claim. ********************************************************** Peter B.H.Birks Q.C., D.C.L., F.B.A., Regius Professor of Civil Law, University of Oxford Postal Address (College) All Souls Oxford OX1 4AL Telephone 44-(0)1865-279338 Fax 44-(0)1865-279299 Postal Address (Home) Oak Trees, Sandy Lane, Oxford OX1 5HN Telephone 44-(0)1865-735625 ************************************************************ X-Sender: lawf0014@sable.ox.ac.uk Date: Thu, 5 Dec 1996 18:23:52 +0000 To: restitution@maillist.ox.ac.uk From: lionel.smith@Law.oxford.ac.uk (Lionel Smith) Subject: Re: restitution Re: Conflicts/proprietary claims Sender: owner-restitution@maillist.ox.ac.uk Reply-To: restitution@maillist.ox.ac.uk >Re Polly Peck International Plc >In the Ch.D. on 29 November Rattee J decided not to strike out, but on the >contrary to give leave for, a proprietary claim against Polly Peck by former >owners of real property in N.Cyprus, expropriated after the invasion by the >Turkish army, in respect of enrichment received by the sale of shares in its >allegedly trespassing subsidiaries, whose title to the properties depended >solely on the law of the unrecognized Northern govt. The administrators of >PP intended to distribute to unsecured creditors; the plaintiffs seek to >come in ahead by virtue of their proprietary claim. As well as raising issues of the conflict of laws and of proprietary claims, this case seems to raise a general issue in respect of unjust enrichment and corporate law. If a corporation is enriched with the result of raising the market value of its issued shares, are the shareholders enriched? I would have thought not, at least not in the subtractive sense. Corporate identity aside, it seems hard to get two subtractive enrichments out of one. (A claim based on the disgorgement of the profits of a wrong would be different I think, but of course that would require a wrong by the shareholder.) My only authority is a holding that this is right at least in an action for "reception de l'indu" (payment of a thing not due) under the Civil Code of Lower Canada: _Pearl_ [1996] RLR §100. I am sure Eoin will tell me why I am wrong... :-) Lionel X-Sender: birks@ERMINE.OX.AC.UK Date: Fri, 06 Dec 1996 10:38:21 +0000 To: restitution@maillist.ox.ac.uk From: birks@ermine.ox.ac.uk (Peter B.H. Birks) Subject: Re: restitution Re: Conflicts/proprietary claims Sender: owner-restitution@maillist.ox.ac.uk Reply-To: restitution@maillist.ox.ac.uk >>Re Polly Peck International Plc >>In the Ch.D. on 29 November Rattee J decided not to strike out, but on the >>contrary to give leave for, a proprietary claim against Polly Peck by former >>owners of real property in N.Cyprus, expropriated after the invasion by the >>Turkish army, in respect of enrichment received by the sale of shares in its >>allegedly trespassing subsidiaries, whose title to the properties depended >>solely on the law of the unrecognized Northern govt. The administrators of >>PP intended to distribute to unsecured creditors; the plaintiffs seek to >>come in ahead by virtue of their proprietary claim. > >As well as raising issues of the conflict of laws and of proprietary >claims, this case seems to raise a general issue in respect of unjust >enrichment and corporate law. If a corporation is enriched with the result >of raising the market value of its issued shares, are the shareholders >enriched? I would have thought not, at least not in the subtractive sense. >Corporate identity aside, it seems hard to get two subtractive enrichments >out of one. (A claim based on the disgorgement of the profits of a wrong >would be different I think, but of course that would require a wrong by the >shareholder.) My only authority is a holding that this is right at least in >an action for "reception de l'indu" (payment of a thing not due) under the >Civil Code of Lower Canada: _Pearl_ [1996] RLR §100. I have temporarily parted with my copy of the Rattee, J., judgment, but, as I recall from a first read of it, the case for the expropriated owners rests in effect in unjust enrichment by wrongdoing (though these words are not used). By trespass (piercing the veil) or by inducing and encouraging trespass by the subsidiaries (and therefore becoming a joint tortfeasor with them) PP has reaped profits consisting in the money paid for the trespassing businesses, the money being formally paid for the shares in the trespassing subsidiaries. I am told that there will almost certainly be an appeal by PP against the permission for the claim to be brought. We might one day reach the nub of the question, which is whether AG for HK v. Reid can cross over to Edwards v. Lee's Adm. And then, if it can, whether it makes any difference that the profit was taken in this particular way. ********************************************************** Peter B.H.Birks Q.C., D.C.L., F.B.A., Regius Professor of Civil Law, University of Oxford Postal Address (College) All Souls Oxford OX1 4AL Telephone 44-(0)1865-279338 Fax 44-(0)1865-279299 Postal Address (Home) Oak Trees, Sandy Lane, Oxford OX1 5HN Telephone 44-(0)1865-735625 ************************************************************ Date: Fri, 06 Dec 1996 15:50:43 +1000 From: Robert Chambers Subject: restitution Polly Peck Int plc To: restitution@maillist.ox.ac.uk Sender: owner-restitution@maillist.ox.ac.uk Reply-To: restitution@maillist.ox.ac.uk Reply to: Polly Peck Int plc Lionel raised an interesting question regarding enrichment by increase in the value of corporate shares. If the plaintiff had a proprietary claim to assets owned by the corp and those assets were sold, the plaintiff might try to follow those assets into the hands of the buyer (subject to the defence of BFPV) or trace their value into the proceeds of sale received by the corp. Where all the corp's assets are being sold, the transaction might well take place as a sale of the shares in the corp for taxation or other reasons. In that case, the plaintiff's claim to the corp's assets would be undisturbed by the change of shareholders (who may have made some arrangement among themselves concerning the corp's liabilities). In either situation, could the plaintiff trace the value of the assets into the hands of the shareholders (as either the sale proceeds of or dividends from the shares)? Could the shareholders claim to be BFPsV? If so, notice might be easily proved in cases of closely held corps or subsidiary corps with a common board. Do company law principles provide any help? Dividends might be recoverable if distributed unlawfully (and directors might be liable for making the distribution), but what about the sale of shares? Robert Chambers University of Melbourne Law School