Search

A central but generally neglected objective of federal regulation of pension and welfare benefit plans was to improve overall economic efficiency by providing workers with accessible and reliable information on which to base their career and financial planning. Simple dissemination of plan terms and financial data (full disclosure) cannot achieve that objective because few workers are equipped with the skills needed to evaluate the costs and benefits of complex retirement saving or health care programs. For that reason ERISA, the Employee Retirement Income Security Act of 1974, requires curated disclosure of plan-related information: it must be presented a format that is both understandable to the average plan participant and sufficiently complete to empower workers to make best use of the program. The length and complexity of most employee benefit plans creates tension between understandability and completeness, calling for tradeoffs to achieve optimal disclosure. As implemented ERISA’s understandability standard has been jettisoned by plan sponsors seeking protection from liability for failing to tell workers enough. Required plan summaries became unreadable, but plan sponsors could get away with that, both because there was no administrative or judicial enforcement of the understandability standard, and because they could tout the advantages of their benefit plans to workers by means of unregulated informal communications. The demise of understandability is only half the story. Federal courts also degraded the reliability of mandatory disclosures by finding that the obligation to provide reasonably accurate and complete information is enforceable only in a suit for appropriate equitable relief. In consequence, disclosure defects are often presented as estoppel claims, which triggers search for individual detrimental reliance, and translates into widespread under-enforcement of the reliability standard. This article explores the policy dimension of ERISA disclosure law and chronicles the decay of the equilibrium Congress envisioned. From the perspective of workers it is a saga of disappointment, disillusionment, and defeat. The new balance serves the interests of federal courts (reduced caseload) and some employers (increased flexibility), but likely contributes to the increasing standardization of employee benefit plans, decreasing their utility as instruments of workforce management. Far worse, it abandons ERISA’s goal of improved economic performance through better-informed career and financial planning. Yet those costs are not immutable: employers’ liability exposure could be recalibrated by regulation to revive understandability and approach optimal disclosure.

Russian Abstract: В статье рассматривается проблема ограничения права сторон на обжалование судебного решения в результате применения института истопл (estoppel). Сложилась практика, когда неприменение апелляционным судом «принципа» estoppel приводит к отмене судебных актов в кассационной инстанции. В этой связи предлагается проанализировать доктринальное обоснование, содержание и цель применения разных видов истопл в сравнительно-правовой перспективе. Раскрывается содержание постановления Президиума ВАС РФ от 22.03.2011 No 13903/10 как судебного акта, которым суд обосновал применение расширенной доктрины estoppel per rem judicatem (res judicata), а не частноправового истопл. По итогам обосновывается ошибочность представлений о том, что истпол должен служить цели формирования последовательного процессуального поведения сторон, а также оправданность применения формального вида истопл в отношении предъявления множественных исков, основанных на одном материальном правоотношении. English Abstract: The denial of the citizen’s right of access to the court guaranteed by the law, through unprincipled judicial discretion, is justifiably seen as a true vice of a judicial system. The current position of the Russian Supreme Court as to the existence of a broad principle of estoppel and coherence in litigants’ acts as its underlying ratio raises a few doubts. Moreover, the court uses the broad concept of estoppel, undefined in the civil procedure law, to reverse the decisions of lower courts. Thus, the rights of litigants are fully dependent on the judicial discretion as to the existence of estoppel in any particular case. This discretion is wholly unpredictable for there is neither legislation nor judicial dictum of the Russian Supreme Court on the elements needed to establish and prove an estoppel claim. Meanwhile, those are of paramount importance in the estoppel authentic legal systems. What is more important is that the fallacious understanding of the true kind of the estoppel employed by the Russian Supreme Commercial Court in 2011 has made it possible to plead and use estoppel as a source of limiting procedural rights of litigants, which contradicts the original idea of estoppel as an instrument establishing either representations or promises. Thus, the aim of the article is to reveal those discrepancies in the current use of the estoppel instrument which result in denying the litigant’s right to justice.

Less than a handful of casebooks are truly open source, in the sense of being fully modifiable. Patent Law: An Open-Source Casebook is the first patent law casebook that provides adopting professors, students, and others the ability to fully modify its contents. This chapter of the casebook covers remedies in patent infringement actions, including preliminary and permanent injunctions, ITC exclusion orders, lost profits, reasonable royalties, ongoing royalties, attorneys’ fees, enhanced damages, patent marking, and declaratory judgment relief.

The fraught question of the rights and liabilities of "non-signatories" in arbitration continues to exercise courts and commentators. The Supreme Court, as part of its endless fascination with the arbitral process, recently made its own contribution in the Outokumpu case. Outokumpu seemed to raise a wide variety of issues---the signature requirement of the New York Convention, the rights of third parties under the Convention, the relevance of "equitable estoppel," and the applicable law that governs that issue. In a dispiritingly unadventuresome opinion, a unanimous Court decided few of these---yet what the Court gives us is clearly in line with current jurisprudence and with the ALI's recent Restatement project on international commercial arbitration, This short piece was written as a contribution to a festschrift in honor of Professor George Bermann---who, in addition to his extensive body of work, has been the guiding force behind the Restatement and so instrumental in bringing it to fruition.

This Article considers whether federal student loan borrowers can bring successful legal challenges if Congress retroactively repeals the Public Service Loan Forgiveness (“PSLF”) program. It addresses whether borrowers at litigation could rely on analogies to the promissory estoppel doctrine or assert equitable estoppel claims to challenge the repeal. In doing so, the Article explores the intersection of estoppel and government contract law with sovereign immunity theories in a way that has never been done before. This topic has been given very little attention in prior literature, so I aim to present its legal issues in a clear way while paying tribute to its nuance. The Article addresses the hurdles of sovereign immunity and the Sovereign Acts Doctrine, which the borrowers would encounter at litigation. It concludes that, despite likely overcoming these hurdles, in many cases, the plaintiff-borrowers’ government contract law claims would likely still fail to win on their merits. The Article similarly contends that most if not all equitable estoppel claims would likely fail before a court. The Article then offers an alternative proposal to Congress, which would avoid the issues that would arise at litigation, while solving the problems associated with the program and protecting the most vulnerable members of society negatively impacted by a repeal.

On 11 September 2020, the DG Agriculture at the European Commission published contents of a unilateral Application No. PGI/IN/02425 for the registration of the term “Basmati” as a Protected Geographical Indication (PGI) in relation to aromatic rice products. The aforesaid application has been filed by India, through its Agricultural and Processed Food Products Export Development Authority (APEDA). Pakistan (as a stakeholder country itself), along with its Rice Exporters Association have lodged their oppositions against the aforesaid application before the DG Agriculture of the European Commission. In its Application No. PGI/IN/02425, India/APEDA chose to move ahead unilaterally to apply for the PGI of Basmati, and failed to mention the geographical areas of Pakistan that should also be covered in the same since Basmati is a trans-border PGI. It is the humble view of the authors that India’s/APEDA’s Application No. PGI/IN/02425 is hit by the principle of estoppel; is in breach of European Commission’s ‘Guide to applicants: How to compile the single document’; and is in breach of Articles 5(2)(a), 5(2)(b), and 7(1)(a) of Regulation No. 1151/2012. For convenient reading, the body of this article has been arranged into six parts. The first part serves as an introduction. The second part highlights past instances where the European Commission has recognized trans-border PGIs that originate from two countries. The third part identifies the legal issues that can arise in a dispute for trans-border geographical indication. The fourth part focuses on historical origin and reputation of Basmati as a trans-border PGI under Article 7(1)(a) of Regulation No. 1151/2012. The fifth part provides an overview as to the link with the geographical area for Basmati as a trans-border PGI under Article 5(2)(a) and (b) of Regulation No. 1151/2012. The sixth part serves as the conclusion to this article.

Who is bound by a forum selection clause? At first glance, the answer to this question may seem obvious. It is black-letter law that a person cannot be bound to an agreement without her consent. In recent years, however, courts have not followed this rule with respect to forum selection clauses. Instead, they routinely enforce these clauses against individuals who never signed the contract containing the clause. Courts justify this practice on the grounds that it promotes litigation efficiency by bringing all of the litigants together in the chosen forum. There are, however, problems with enforcing forum selection clauses against non-signatories. First, there is the unfairness of binding a litigant to a contract without her consent. Second, there is the danger that relying on a forum selection clause to assert personal jurisdiction over a non-signatory may be inconsistent with due process. This Article critiques the rules that determine whether a non-signatory is bound by a forum selection clause. It first documents the emergence of a new doctrine — the closely-related-and-foreseeable test — that the courts have created to facilitate this practice. It then argues that the test serves as a portal to a parallel due process universe in which casual contacts and breezy assertions of foreseeability can connect a defendant to a forum selection clause in a way that would be, at best, highly scrutinized were they construed as potential minimum contacts with the forum. In a world of ever-tightening personal jurisdiction standards, courts have created a bubble of nearly unlimited jurisdiction for parties in close proximity to forum selection clauses. To address this problem, the Article proposes reforms that would provide more robust protections to non-signatory defendants and, as importantly, impose a degree of order on an increasingly fractured due process landscape.

Good faith is described as 'the foundation of all law, or a fundamental principle of law'. O'Connor suggests that good faith derived from 'the necessity for a minimum of human cooperation and tolerance if group living is to emerge and survive'. Although good faith has origins in the earliest human societies, O'Connor suggests that the Roman concept of bonafides (associated with trustworthiness, conscientiousness and honourable conduct) represents its most direct ancestor. By about 1450 it was applied in both civil and common law systems, and was 'reflected in specific rules incorporating or referring to good conscience, fairness, equitable dealing and reasonableness'.4 As early as 1659, good faith was mentioned in Treaty between France and Spain, signed to end the Franco-Spanish War that had begun in 1635. Before that, in 1625, Grotius had referred to the Aristotelian parameter that if good faith has been taken away, “all intercourse among men ceases to exist”. Grotius also referred to Cicero‟s famous observation according to which “in good faith what you meant, not what you said, is to be considered”. The civil law regimes tend to require that contracts be formed and performed in good faith. If parties act in bad faith, this leads to mistrust, making contracting more complex and expensive. A rule of good faith increases contracting parties' confidence that contractual obligations will be performed. The principle of good faith is less established and less uniform in common law systems. At one extreme is the United Kingdom, which has no general doctrine of good faith. However, equity developed many doctrines to promote specific notions of good faith, including the concepts of undue influence and promissory estoppel. Good faith is also recognised in relation to particular classes of contracts, for example, contracts of insurance. At the other extreme is the United States, “where every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement”.

The common law doctrine of issue preclusion, also known as collateral estoppel, prevents parties from re-litigating an issue in subsequent lawsuits if a prior judgment already conclusively decided the issue. Issue preclusion traditionally required strict mutuality of parties; the first and second lawsuits had to involve the exact same litigants. Although the majority of jurisdictions now allow nonmutual issue preclusion, Georgia continues to require "identity of parties." Despite recently reaffirming this requirement, the Georgia Supreme Court has not thoroughly analyzed the merits of the rule. This paper examines the history and evolution of issue preclusion and the mutuality element, distinguishes offensive and defensive assertions of issue preclusion, reviews the current application of nonmutual preclusion in federal courts, compares Georgia mutuality law to the case law of other states, considers the policy arguments favoring and disfavoring strict mutuality, and explores why the Georgia Supreme Court has not addressed the nationwide trend towards allowing nonmutual issue preclusion. The paper argues for changing Georgia law to allow nonmutual defense issue preclusion in civil litigation and advises practitioners on practical avenues for achieving that goal.

This article examines the concept of ‘general principle of international law’ and the way it has so far been used by tribunals in investment cases. It will first outline the nature and meaning of these principles emerging on the international plane and distingue them from other general principles grounded in States’ domestic laws. The empirical analysis of four general principles (burden of proof, estoppel, res judicata and abuse of rights) shows that many tribunals have explicitly recognized them as general principles of international law. The reasoning of other tribunals, the expressions they have used and the international law material they have referred to strongly suggest that they have also come to the same conclusion. Finally, this article considers the reasons why this concept is important to the further development of investment arbitration.

Doctrinally, both consent and estoppel seem to lack a conceptual core. If consent is the exercise of a normative power predicated on our autonomy interests, then sometimes what we call “consent” is not really consent. And if estoppel is about barring/stopping/hindering one’s ability to make a claim, but not about changing the underlying rights and duties themselves, then sometimes what courts deem to be estoppel is not really estoppel. Instead, consent has alternative normative groundings, and estoppel seems to be employed as the term by which courts can simply reach what they deem to be the fair or equitable result. This paper aims to make sense of these categories, venturing into both consent and estoppel, but focusing more on the far more undertheorized estoppel. As it surveys these doctrines at work in criminal law, tort law, property, and IP, it points to the sorts of changes in normative relations that appear to be at work and what might ground them. Ultimately, some of our practices make far more sense than others, although our nomenclature makes little sense at all. Apparent consent is not consent at all. And estoppel masks distinctions between “forfeiture by insincere act” (a forced shift in rights and duties), other cases that should be deemed exercises of normative powers, other instances that should be seen as tort-like for creating liabilities, and thinner losses of the ability to complain/assert one’s rights. Even this final forfeiture of mere assertability proves questionable because when it does not camouflage a more significant estoppel, it ultimately produces a result that may be disproportionate to A’s behavior and B’s reliance. Ultimately, I hope to show that our concepts are conflating radically different sorts of relations and that these labels prevent us from scrutinizing our practices as carefully as we should.

Economic analysis of contract law is a highly influential theoretical approach to contract law. At the same time, feminist analysis of contract law offers an important critical approach to the field. However, feminist economics, a prominent alternative approach to mainstream neo-classical economics drawing from both economic theory and feminist theory, has only been applied scarcely and sporadically to contract law. This Article seeks to bridge this gap, and to apply the key features of feminist economics to an analysis of the doctrine of promissory estoppel. This Article uses promissory estoppel as an example with which to demonstrate a feminist economic analysis of contract law.

This article questions the received orthodoxy from England and Wales that unincorporated treaties are ineffective (or not self-executing) on the domestic plane, and that municipal courts are incompetent to adjudicate the rights and liabilities arising from them. Anomalous gaps in protection have arisen from the application of this orthodoxy in the human rights context in Hong Kong. A close analysis, however, shows the orthodox positions in both Hong Kong and England and Wales to have been overstated, and there is room and good constitutional reason for an estoppel to be imposed against the executive in human rights cases, resulting, effectively, in the direct application of unincorporated human rights norms.

A unanimous Supreme Court decided on June 1, 2020 in an opinion written by Justice Clarence Thomas the question of whether the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958 (hereinafter the “New York Convention”) conflicts with domestic equitable estoppel doctrines that permit the enforcement of arbitration agreements by nonsignatories concluding that it does not. As the 11th Circuit Court of Appeals concluded that the New York Convention prohibits enforcement by nonsignatories, the Court reversed the 11th Circuit Court of Appeals and remanded the case for further proceedings. In that regard the questions of whether GE could enforce the arbitration clauses under principles of equitable estoppel or which body of law governs that determination were left to the 11th Circuit to decide in the remand. In a concurrence Justice Sonia Sotomayor - while agreeing with the court that the New York Convention does not categorically prohibit the application of domestic doctrines, such as equitable estoppel, that may permit nonsignatories to enforce arbitration agreements - noted that the application of such domestic doctrines is subject to an important limitation: any applicable domestic doctrines must be rooted in the principle of consent to arbitrate. From the point of view of separability doctrine, contract interpretation, treaty law it possibly brings into the arena of international commercial arbitration a particularly nationalist form of American approach to international trade. If that is the case, the New York Convention may be so twisted by domestic FAA Chapter 1 jurisprudence, that its efficacy for international contracts with American parties may be compromised. So we may have to again open the door to another international commercial arbitration convention being prepared.

Inter partes review estoppel has violated the principles of traditional res judicata since its inception. For the first several years of its life, IPR estoppel served to preserve a petitioner’s ability to harass patent owners and repetitively attempt to invalidate patents. Following SAS in 2018, IPR estoppel began to reverse course. The courts that once were allowing patent owner abuse are now limiting it with a broad application of IPR estoppel. However, this broad application of IPR estoppel is a soft claim preclusion that allows many exceptions behind the principles of res judicata. Furthermore, the PTAB allows petitioners to file numerous IPR petitions and does not enforce estoppel until a final written decision is issued to which the petitioner is a real party in interest. This practice likewise allows the harassment of patent owners and violates the principles of res judicata. To resolve the inter partes review estoppel problems, Congress must reintroduce the principles of res judicata with exceptions only where patent litigation absolutely requires it. Such an analysis leads to the conclusion that by enacting only the petitioner standing requirement and the estoppel provisions of the STRONGER Patents Act of 2019, IPR estoppel would achieve a balance equitable to patent owners and petitioners alike. These two provisions do well to support the principles of res judicata, grant adequate leeway where patent litigation requires it, yet still provide claim preclusion strong enough to avoid abuse. The doctrine of res judicata does not need reinventing for 21st century patent litigation—it merely needs reintegration.

The point of discussion of this paper is to have a detailed overview of the doctrine of “Double Jeopardy'' under the “Code of Criminal Procedure 1898”. This paper will begin by discussing what Double Jeopardy is, then it will discuss the legal provisions on Double Jeopardy applicable in Pakistan. It will explain the basis of section 403 CrPC. The critical review of this doctrine will be given in this paper at hand. This paper will briefly discuss the conditions necessary for the applicability of the doctrine of double jeopardy. Furthermore, it will be discussed what the law under CrPC explicitly states and how it is implemented by the judiciary. In addition to that this paper will also discuss exceptions to the doctrine of double jeopardy. It precisely states how the concept of public interest overrides the doctrine of estoppel. Relevant case laws have been cited.

Taxonomic uncertainty has long been a feature of equitable estoppel. While the unifiers had their heyday in a period roughly centred on the 1980s, the splitters are now in the ascendant. At the forefront of the movement is Ben McFarlane, who has argued that what is known as ‘equitable estoppel’ in fact consists of five separate principles. This paper questions that growing consensus. It considers the case for the unity of equitable estoppel by identifying what might be understood to be its core principle, and then considering a series of questions that can help us to understand whether that core principle can be said to underlie ‘equitable estoppel’ as a whole. A central plank in the case for the disunity of equitable estoppel is the claim that a promise is required for some categories of case but not others. While there is some strength in the argument that a promise should be required, numerous leading cases arising in different contexts make it clear that responsibility for detrimental reliance on an assumption as to one’s future conduct does not depend on the making of a promise or commitment.

Russian Abstract: В статье обсуждается позиция российских судов по поводу юридического эффекта неисполнения обещания завещать. Рассматриваются подходы, выработанные английской судебной практикой. Для российских читателей. English Abstract: Author discuss approaches of the russian courts to the legal effect of the promise to bequest from the position of positive rules of inheritance by will or in intestacy. As authoritative backgrounds and examples the paper includes the most recent english precedents. For russians readers.

GE ENERGY POWER CONVERSION FRANCE SAS, CORP., FKA CONVERTEAM SAS, v. OUTOKUMPU STAINLESS USA, LLC, ET AL., Amici Curiae pro-international commercial arbitration brief against applying equitable estoppel under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.

This invited testimony was presented at a hearing on the STRONGER Patents Act before the Senate Judiciary Committee, Intellectual Property Subcommittee, on September 11, 2019. It explains how the STRONGER Patents Act addresses two sources of uncertainty, instability and weakness in the U.S. patent system today. First, the bill permanently would end the willy-nilly operations of the Patent Trial & Appeal Board (PTAB), an administrative tribunal created by Congress in 2011 to cancel issued patents. The PTAB engages in numerous procedural “shenanigans” that have produced extremely high cancellation rates, earning it the moniker of a “death squad” for patents. The STRONGER Patents Act imposes structural reforms on the PTAB by hardwiring into it necessary limitations on arbitrary action. Second, the bill abrogates the Supreme Court’s 2006 decision in eBay v. MercExchange, which created a new test for issuing injunctions for the ongoing infringement of a valid patent. By eliminating the classic legal test of a presumptive injunction for an ongoing violation of a valid property right, eBay has led to a significant drop in courts issuing injunctions for all patent owners. Both the PTAB and eBay have created a cloud over the titles of patents, incentivizing “efficient infringement” by large companies and hampering the economic function of patents in driving licensing and other commercial activities in the innovation economy. Thus, the STRONGER Patents Act represents much-needed reform. It reestablishes reliable and effective patent rights, stable legal institutions, and the rule of law in the patent system — essential features of all legal property rights in driving economic growth in innovation economies.

A central but generally neglected objective of federal regulation of pension and welfare benefit plans was to improve overall economic efficiency by providing workers with accessible and reliable information on which to base their career and financial planning. Simple dissemination of plan terms and financial data (full disclosure) cannot achieve that objective because few workers are equipped with the skills needed to evaluate the costs and benefits of complex retirement saving or health care programs. For that reason ERISA, the Employee Retirement Income Security Act of 1974, requires curated disclosure of plan-related information: it must be presented a format that is both understandable to the average plan participant and sufficiently complete to empower workers to make best use of the program. The length and complexity of most employee benefit plans creates tension between understandability and completeness, calling for tradeoffs to achieve optimal disclosure. As implemented ERISA’s understandability standard has been jettisoned by plan sponsors seeking protection from liability for failing to tell workers enough. Required plan summaries became unreadable, but plan sponsors could get away with that, both because there was no administrative or judicial enforcement of the understandability standard, and because they could tout the advantages of their benefit plans to workers by means of unregulated informal communications. The demise of understandability is only half the story. The federal courts have also degraded the reliability of mandatory disclosures by finding that the obligation to provide reasonably accurate and complete information is enforceable only in a suit for appropriate equitable relief. In consequence, disclosure defects are often presented as estoppel claims, and the necessary showing of individual detrimental reliance translates into widespread under-enforcement of the reliability standard. This article explores the policy dimension of ERISA disclosure law and chronicles the decay of the equilibrium Congress envisioned. From the perspective of workers it is a saga of disappointment, disillusionment, and defeat. The new balance may serve the interests of federal courts (reduced caseload) and some employers (increased flexibility), but it also likely contributes to the increasing standardization of employee benefit plans, decreasing their utility as instruments of workforce management. Far worse, it abandons ERISA’s goal of improved economic performance through better-informed career and financial planning.

When Congress implemented inter partes review (IPR) and other patent post-grant proceedings through the passage of the America Invents Act (AIA) in 2011, it provided that petitioners would be estopped in later proceedings from raising grounds for invalidity that they “raised or reasonably could have raised during that inter partes review.” 35 U.S.C. § 315(e)(2). However, substantial uncertainty in courts’ interpretation of this provision causes an enormous impact on an accused patent infringer’s decision of whether and on what grounds to petition for review. One reading of the statutory estoppel provision suggests that “during that inter partes review” refers to the time period after institution of the IPR and before a final decision from the Patent Trial and Appeal Board (PTAB). However, although the Federal Circuit has generally favored a textualist reading of this statute, it has yet to address how the estoppel standard would apply to grounds that the petitioner chose not to include in the petition for IPR. Lower courts have taken widely divergent approaches in this and various other factual scenarios where estoppel might apply, with some courts assessing legislative history to determine that Congress intended estoppel to apply broadly to any grounds that could have been raised in the petition. These courts often engage in complex assessments of what prior art the petitioner should have known about and added to the petition, which adds unnecessary complexity and cost to their determinations. This Article will explain that a narrow, textualist reading of the IPR estoppel provision is consistent with Supreme Court precedent on statutory interpretation and is justified in light of the strict limits on IPR petitions adopted by the PTAB—limits that Congress did not foresee and which effectively restrict the grounds for invalidity that a petitioner may raise during the IPR. When the Federal Circuit or the Supreme Court next has occasion to consider this issue, it should hold that IPR estoppel applies narrowly only to grounds actually raised and instituted.

One of the pillars of Roman law is contained in the maxim res judicata pro veritate accipitur, that is, a thing adjudicated is received as the truth. This maxim of Roman law is based upon two other maxims of Roman law, namely, interest reipublicae ut sit finis litium, that is, it concerns the State that there be an end to law suits, and, nemo debet bis vexari pro una et eadem causa, that is, no man should be vexed twice over for the same cause. Doctrine of res judicata simply put states that, ‘If a person though defeated at law sue again he should be answered, “You were defeated formerly”’. The recognised basis of the rule of res judicata is different from that of technical estoppel. Estoppel rests on equitable principles and res judicata rests on maxims which are taken from Roman law.

A trend discernible post 1965 within the judgments of the Supreme Court is the control of discretionary powers of the government. In a society ruled via the "rule of law" it is essential that the person's rights must not be dependent on the whims of an official, a risk likely to arise if the government enjoys untrammelled discretion or strength. However, there is no signal of abatement of the outstanding discretionary powers of the management. One of the safeguards given to the individual in opposition to the substantial powers of the state are procedural. The Supreme Court has been exercising an energetic and a commendable role in evolving these safe-guards. 3 instances, P. L. Lakhanpal v. Union of India , Union of India v. Indo-Afghan Agencies Ltd . and State of Assam v. Bharat Kala Bhandar , represent the high water-mark of this improvement. These cases display that our Supreme Court is pretty lively in responding to the demand made upon it. It is quite vigilant in shielding individual liberty without, at the same time, unduly hampering the project of the authorities in organising a welfare state.

תקציר בעברית: ישנו שימוש בטענת ההשתק פעמים במשפט הישראלי על מנת לתקן עוול כאשר בן זוג או הורה לא רוצה לשלם מזונות בטענה פורמלית שהחוק פוטר אותם. היום בישראל עדיין ישנה אפליה במזונות ילדים שמגולמת בחיוב אבסולוטי של אבות יהודים (לילדים עד גיל 6) ולאבות מוסלמים (לילדים עד גיל 18). תיזת מאמר זה היא ששימוש בטענת ההשתק יאפשר לאבות לטעון שהאם מנועה מלטעון את טענת החיוב האבסולוטי מכח הדין הדתי ברוב המכריע של המקרים. דבר זה יביא יותר צדק לפתחו של בית המשפט לענייני משפחה, ומשם אולי המגמה תחלחל גם לבתי הדין הרבניים. English Abstract: The Estoppel claim used many time in the Israeli law in order to oblige spouse or a parent to pay alimony and child support even when the law did not obligate them. Today, in Israel, there is a discrimination in child support when it comes to Jewish fathers to children below six years old and Muslims fathers to children below 18 years old. in that cases the father has an absolute charge to pay the child support. The thesis of this article is that using the Estoppel argument will enable the fathers to argue that the mother is prevented from arguing the claim of absolute charge by religious law in the vast majority of cases. This will bring more justice to the Court of Family Affairs, and from there the trend may also seep into the rabbinical courts.

Fake news may be trending right now, but fake news is not the only source of fake facts that we consume. We encounter fake facts every day in the historical or biographical books we read, the movies we watch, the maps we study, the telephone directories and dictionaries we reference, and the religious or spiritual guides we consult. While it is well-established that copyright does not protect facts because facts are discovered rather than created, fake facts are created and can often be as original and creative as fiction. This paper is the first to offer a comprehensive analysis of copyright protection of fake facts contained in fake news and other sources. It details the different categories of fake facts we encounter today and courts’ inconsistent protection of fake facts under copyright law. Even though copyright law may technically protect fake facts as original expression fixed in a tangible medium, this paper argues that the public interest in promoting efficiency, fairness, and production of socially-valuable works justify treating fake facts as unprotectable facts under copyright law. Specifically, courts should apply copyright law’s factual estoppel doctrine to treat fake facts as unprotectable facts in infringement cases where an author previously held out fake facts as facts, with the intent that the public rely on the fake facts as facts, if the public could believe the fake facts to be true.

There is a sharp tension between the expectations that hundreds of thousands to millions of persons have regarding their right to eventually have their student loan debts forgiven under the Public Service Loan Forgiveness program, starting this fall, and the legitimate public concerns regarding the large future costs and regressive incidence of the PSLF program’s benefits. The Trump Administration has recently proposed prospectively abolishing the PSLF program for future Direct Loans. Whether or not this proposal is adopted, given the large costs of the program (which I estimate will eventually rise to $12 billion/year or more as an estimated 200,000 people/year or more will eventually seek debt forgiveness), and given the skewed incidence of its benefits in favor of mid-career doctors and lawyers, I think that there will eventually be a more aggressive push by the Administration or members of Congress for retroactive elimination of the program, or at least for a retroactive tax law amendment to include this forgiven debt as taxable income under IRS Code Section 108 as is now done for debts forgiven under the other income-based loan forgiveness plans. As a matter of positive law this article considers several contractual arguments as well as a couple of Constitutional arguments that opponents of such retroactive statutes could offer. The contractual arguments include an express loan terms argument, an implied covenant of good faith and fair dealing-based argument, a promissory estoppel argument, and an unconscionability argument. Some of these arguments against retroactive PSLF program repeal have considerable merit, at least for some Direct Loan borrowers who can make certain fact-specific showings. The Constitutional arguments include the substantive due process issue that would presented by a tax law change that would have retroactive impacts extending back a decade or more. Opponents of such tax legislation might be able to get some traction on the substantive due process issue under Bowen v. POSSE (1986). They also can offer a plausible Takings Clause argument against a tax law change if the courts take the (unlikely) step of regarding the PSLF program’s tax exemption for forgiven debt as a contractual commitment, rather than as only a revocable privilege. Apart from this legal analysis the article does not take a strong normative position on these issues. I do, however, suggest that as a matter of policy a compromise that would arguably fairly balance the interests at issue here may be to continue the PSLF program, but also to retroactively repeal the tax exemption for forgiven debt so as to recapture approximately one-quarter to one-third of the benefits of debt forgiveness, and do so in a modestly progressive manner. Such a compromise should probably also include some provision for spreading the payment of those taxes over at least several years in order to avoid unduly burdening these persons with a “tax bomb” effect.

Over the last ten years, the emergence of contractual estoppel has been catalysed by litigation between sophisticated participants in the financial markets. Pending a Supreme Court decision, the principal authority remains the Court of Appeal’s 2010 decision in Springwell Navigation Corp v JP Morgan Chase Bank (‘Springwell’). It would be wrong, however, to think that the doctrine has remained static since this landmark decision, or that it has remained confined to the financial sphere, or to relationships between sophisticated parties. The paper aims to fill a gap by considering the more recent, ‘second generation’ of cases involving contractual estoppel handed down in the five years 2013-2017 inclusive, with the aims of developing our understanding of this type of estoppel and examining its actual implications to date. Overall, the paper shows how contractual estoppel has become a recurrent and predictable feature of financial markets litigation, but also how it has spread into cases involving more diverse aspects of business and personal life. It argues that this diversity matters not only because of the impact on these wide-ranging types of relationships, but also because it has influenced the development of the doctrine. In this respect, the analysis shows how existential questions about contractual estoppel have faded from the cases, to be replaced by debates about the constraints on the doctrine. As a result, having assessed the extent and implications of spread of the doctrine, the paper proceeds to analyse the status of those constraints as they currently stand, considering in turn the ‘internal’ and ‘external’ limits.

Collateral estoppel is an equitable doctrine under which a court gives issue preclusive effect to findings of fact or law made in previous proceedings. The U.S. Supreme Court has recently held that under certain circumstances the determinations of administrative adjudications have collateral estoppel effect in federal court. The Court, however, did not address under which circumstances the determinations of administrative adjudications should have collateral estoppel effect in subsequent administrative adjudications. There has been little clear and consistent reasoning in lower federal courts about when collateral estoppel should apply in administrative adjudications, and administrative agencies vary widely in their application of collateral estoppel when conducting adjudications.This Note argues that neither the balancing test used to apply collateral estoppel in federal court nor the more formalistic per se rules proposed by some commentators are appropriate when applying collateral estoppel between administrative adjudications. Instead, courts should defer to agencies, granting them wide discretion to recognize or not recognize the collateral estoppel effect of prior administrative adjudications.

Contrary to Samuel Williston’s description of the ALI’s formal restatement of contract law as merely presenting the law “as it is, not as a new law,” the doctrine of promissory estoppel set forth in Section 90 thereof does not represent an ancient principle of contract law. Rather, it constitutes a relatively recent and largely artificial innovation by Williston and his colleague Arthur Corbin. To overcome potential objections to such novelty, Williston and Corbin advocated for their new doctrine on the basis of specific claims of historical authority therefor. In particular, they asserted that promissory estoppel was doctrinally and philosophically consonant with the origins of English contract law during the Middle Ages. Those claims are not well-founded.Specifically, Williston, Corbin and other proponents of promissory estoppel have focused on the fact that during the period from roughly 1350 to 1600 litigants and courts incrementally turned for the enforcement of contract to the tort writ of trespass on the case sounding in assumpsit in substitution for the use of well-established, preexisting contractual writs. Yet these proponents of promissory estoppel have ignored the underlying reasons for, and limitations of, that historical development. Contrary to their implication, there occurred no fundamental doctrinal rejection of preexisting contract law, to which the doctrine of promissory estoppel would have been wholly alien. Rather, this circumvention of the preexisting contractual writs by means of assumpsit came to pass as the direct result of specific jurisdictional and procedural limitations that had hobbled the use of those contractual writs.Moreover, and critically, both prior to and during the period of this creative extension of assumpsit the fundamental principle of reciprocity in contract was repeatedly asserted by the courts and commentators. The major extension of assumpsit in the mid-1500s into the realm of the principal preexisting contractual writ for informal contracts, debt upon contract, was temporally coupled with and limited by this principle, which came to be expressed as the doctrine of consideration. Promissory estoppel, which rejects at its core the principle of reciprocity in contract, is antithetical to this history.

The Supreme Court and the Federal Circuit have repeatedly emphasized the public interest in testing the validity of patents, weeding out patents that should not have been issued. But there is one important group of people the law systematically prevents from challenging bad patents. Curiously, it is the very group patent law is supposed to support: inventors themselves. The century-old doctrine of assignor estoppel precludes inventors who file patent applications from later challenging the validity or enforceability of the patents they receive. The stated rationale for assignor estoppel is that it would be unfair to allow the inventor to benefit from obtaining a patent and later change her tune and attack the patent when it benefits her to do so. The Supreme Court has traditionally disfavored the doctrine, reading it narrowly. But the Federal Circuit has expanded the doctrine in a variety of dimensions, and applied it even when the benefit to the inventor is illusory. Further, the doctrine misunderstands the role of inventor-employees in the modern world. More important, the expansive modern form of assignor estoppel interferes substantially with employee mobility. Inventors as a class are put under burdens that we apply to no other employee. If they start a company, or even go to work for an existing company in the same field, they will not be able to defend a patent suit from their old employer. The result is a sort of partial noncompete clause, one imposed without even the fiction of agreement and one that binds anyone the inventor comes in contact with after leaving the job. Abundant evidence suggests that noncompetes in general retard innovation and economic growth, and several states prohibit them outright, while all others limit them. But assignor estoppel is a federal law doctrine that overrides those state choices.It is time to rethink the doctrine of assignor estoppel. I describe the doctrine, its rationale, and how it has expanded dramatically in the past 25 years. I argue that the doctrine is out of touch with the realities of both modern inventing and modern patent law, and that it interferes with both the invalidation of bad patents and the goal of employee mobility. Should the Supreme Court take up the doctrine, it is unlikely to survive in its current form. Rather, it should – and will – return to its much more limited roots.

Commercial arbitral awards are universally recognized to give rise to res judicata, but confusion reigns over what law applies to the res judicata effect of a prior arbitral award asserted before a subsequent tribunal. National res judicata laws diverge on key questions such as the availability of issue estoppel and the construction of the ‘triple identity’ test. Yet the normal tools used to manage divergence in potentially applicable laws – choice of law and codification – have failed to work when it comes to the res judicata effect of awards. I argue the answer is to adopt a transnational approach to res judicata in arbitration. Although this approach has support in principle, questions remain about how it would work in practice. I propose that a modified version of Gaillard’s ‘transnational rules method’ contains the seeds of a promising answer. Specifically, tribunals could look to both other commercial tribunals’ awards, as well as International Centre for Settlement of Investment Disputes (ICSID) and International Court of Justice (ICJ) case law on res judicata, to develop a sui generis transnational preclusion standard for international arbitration. This is consistent with informal practices arbitrators have developed with respect to other interstitial issues where choice of law processes do not yield satisfactory results. Finally, I evaluate the implications of taking this approach, as well as its prospects for success.

This research paper critically analyses and appreciates the 1958 legislation (the Delhi Rent Control Act, 1958) on diverse fronts. The topics of prime focus in this research paper are the following: Historical background of the 1958 Act; Definition of landlord, tenant and premises; Constitutionality of the 1958 Act; Difference between lease and licence; Tenancy not created by payment of rent, waiver or estoppel; Tenancy by holding over and tenancy at sufferance; Eviction of tenant on various grounds enumerated in Section 14 of the 1958 Act; Sub-Letting; Eviction: Rights of Deserted Wife/Divorced Wife; Summary trial in eviction cases under Section 14(1) (e) and Section 14-A to Section 14-D of the 1958 Act; Limited Period Tenancy; Bar to the jurisdiction of the Civil Court; and Deposit of rent. All landmark case-laws albeit the 1958 Act are discussed with erudite precision.

The CAFC recent en banc opinion in SCA Hygiene Products v. First Quality Baby Products, addressed two interesting issues regarding the reach of laches after the Supreme Courts ruling in Petrella. Did Petrella overrule Aukerman’s prior holding that laches can bar a legal claim even if brought within the six year period under 35 USC § 286, and should laches bar more than pretrial damages? These issues were addressed as a result of SCA petitioning the CAFC for a rehearing, en banc, for SCA Hygiene Products v. First Quality Baby Car, 767 F.3d 1339 (Fed. Cir. 2014) (“Panel Opinion”).

It is common place that public authorities sometimes give assurance to individual or group of citizen such as postponing development project, relocation, provision of benefits etc. As public administrative does not exist only to serves the interest of the representee, the rights and interest of others must be considered as well. Hence the ability of representee to enforce promises made by the authorities denotes administrative consistency and trust for the government. Traditionally, the representor is prevented by the private law doctrine of estoppel from resiling. However, the principle has gradually shifted towards collectivism. This essay revisit the principle behind the traditional doctrine and the current principle of legitimate expectation. In view of gradual acceptance of the latter, this essay discusses the viability of abolishing the traditional doctrine and the possible effect to future claims.

These slides teach you the seven things you absolutely need to know about forming contracts. They begin with the basis of all contracts the promise and delve into the ethical underpinnings of promises. They then move to the four elements of a valid contract: agreement (including offer and acceptance), consideration, legality and capacity. They end with a discussion of promissory estoppel -- a discretionary remedy utilized by judges to enforce promises in the interests of justice where a valid contract doesn't exist. These cases come up all the time when lenders promise to modify loans, buyers stop making payments and yet the lenders fail to consider the modification and initiate foreclosure proceedings.

This White Paper compiles and explains, for a non-lawyer audience, all the many patent reform proposals being debated today in the U.S. Congress, the Executive Branch, the Courts, and the States. Topics include: Loser-Pays Fee-Shifting, Settlement Offers, Real Party-in-Interest, ITC Domestic Industry, Stay of Customer Suits, Joinder of Interested Parties, Stay of Discovery, Discovery Limitations, Attorney Sanctions, Pleading Infringement in More Detail, Post Grant Claim Construction, Covered Business Method Review Expansion, Post Grant Estoppel, FTC Enforcement, Bankruptcy Protection, Section 145 Repeal, Double Patenting, Federal Jurisdiction, PTO Funding, Car PARTS Immunity, Seed Patent Immunity, Fashion Design Protection, Ending Pre-GATT Patent Term, Micro Entity Expansion, Patent-Related Tax Deduction, Access to Federal Research, Reverse Settlements, Slashing Software Patent Term, Hiking Patent Maintenance Fees, Small Claims Patent Court, Prior User Defense, Grace Period "Disclosure", Third Party Disclosures, Secret Prior Art, Pre-Issuance Submissions, Inventorship Challenges, Section 101 Challenges in Post-Grant Review, Privy Estoppel in CBM Review, Filing Deadline for CBM Review, Limiting CBM Review to CBM Claims, Inventor’s Oath in Reissue Applications, Inventor’s Oath in Continuing Applications, Priority Claims in Assignee-Filed Applications, Executive Agency Proposals, FTC Investigation, ITC Standard Essential Patents, ITC Domestic Industry, PTO Real Party-in-Interest, PTO Software Examination, PTO Crowdsourcing of Prior Art, PTO Examiner Training, PTO Patent Litigation Abuse Webpage, GAO Study on Non-Practicing Entities, SBA Report on First-to-File, Model Discovery Orders, Judicial Conference Revision of Federal Procedure Rules, CLS Bank Software Patent Eligibility, Nautilus Indefiniteness, Octane Fitness and Highmark Exceptional Case, Limelight Divided Infringement, Baxter Decisional Finality, and State Unfair Competition Law (Vermont, Oregon, Wisconsin, Virginia, Kentucky, Pennsylvania, Minnesota, Nebraska, New York).

Russian Abstract: Сравниваются три подхода к преддоговорной ответственности: согласно доктринам culpa in contrahendo, promissory estoppel и деликтная ответственность. Показано, что несмотря на ряд особенностей, различные подходы часто приводят к довольно схожим результатам. Обсуждается проблема определения размера подлежащих взысканию убытков (исходя из негативного или позитивного интереса), а также вопрос о возможности взыскания неустойки. Предлагается подход к имплементации преддоговорной ответственности в постсоветских государствах. English Abstract: The author compares three approaches to pre-contractual liability under the doctrines of culpa in contrahendo, promissory estoppel, and delict. Despite some peculiarities, the doctrines often appear to yield quite similar results. The problem of estimation of the kind of damages recoverable (reliance damages, full contract damages) is discussed, as well as the issue of liquidated damages. The approach to implementation of pre-contractual liability in post-soviet countries is suggested.

The American Law Institute (ALI) has just completed the Restatement of the Law Third, Employment Law. Chapter 2 is entitled "Employment Contracts: Termination." As the name suggests, the Chapter focuses on the law's difficult challenge of applying contract law to distinguish lawful terminations of employees from wrongful ones. The question is especially problematic because, on the one hand, employment law's long-existing default rule allows employers to terminate employees "at will" and without cause. Advocates of the at-will doctrine present several policies to support it, including freedom of contract and efficiency. On the other hand, employers seek to attract talented employees and, once employed, establish an "orderly, cooperative and loyal work force." Toward that end, numerous judicial decisions and scholarly research reveal unsurprisingly that employers design their communications to attract employees and create loyal workers. It is no wonder, then, that contract law's approach to indefinite-duration employment issues includes decisions policing employer overreaching and thereby creating rules that limit employment at will. Given this clash of policies, the primary challenge for the reporters of the new employment restatement in Chapter 2 was to search the cases and identify the circumstances in which terminated employees should be entitled to legal protection, no easy task given the multitudinous and amorphous case law on employment discharge, the dynamic labor market atmosphere and, perhaps most important, contract law's lack of a unifying theory of its own. Related to this challenge, the ALI's conception of a restatement seemingly allows reporters to venture beyond describing the law (but cautiously). The reporters therefore had to decide what constitutes the appropriate mix of description and prescription in their efforts to assess the contradiction in employment policies. This essay focuses on Chapter 2's treatment of employment at will, on the one hand, and promissory estoppel and good faith, on the other, as examples of how Chapter 2 meets these challenges. The essay concludes that Chapter 2 establishes a useful framework and helpfully identifies the issues for the courts. Because promissory estoppel and good faith (and other contract doctrines) are themselves indistinct, however, Chapter 2 often cannot resolve the principle and counter-principle dilemma in particular cases and therefore cannot fully satisfy ALI's goal of clarifying and modernizing the law through restatements. For the same reason, I doubt that a project in the form of a restatement will be particularly helpful in enhancing employee protection if the playing field is uneven.

There is an increasing risk of overlapping jurisdictions and conflicting decisions due to the growth of preferential trade agreements (PTA) containing dispute settlement mechanisms. This study examines legal techniques to be used for dealing with conflicts of jurisdictions and other ways of promoting coordination between forums. Based on an analysis of principles of international law applied by domestic and international tribunals, we identify legal techniques that can be used by WTO adjudicating bodies based on their inherent powers to decide on matters related to their own jurisdiction. While the principle of estoppel gives a more solid basis for halting proceedings, the suspension of proceedings based on comity may be applied under certain circumstances as soft way of promoting coordination. For future PTA, the inclusion of an explicit forum selection clause may avoid duplication and prevent misuses. We thus examine under what legal basis forum selection clauses could be taken into consideration in the WTO. It is argued that the good faith obligation contained in the DSU as well as the international rules on state responsibility could serve for that purpose provided the rights and interests of other participants in the dispute or the integrity of the process are not adversely affected.

Patent holders are, with increasing frequency, making public promises to refrain from asserting patents under certain conditions, or to license patents on terms that are “fair, reasonable and non-discriminatory” (FRAND). These promises or “patent pledges” generally precede formal license agreements and other contracts, but are nevertheless intended to induce the market to make expenditures and adopt common technology platforms without the fear of patent infringement. But despite their increasing prevalence, current contract, property and antitrust law theories used to explain and enforce patent pledges have fallen short. Thus, a new theory is needed to secure the market-wide benefits that patent pledges can offer. This article proposes a novel “market reliance” theory for the enforcement of patent pledges. Market reliance is rooted in the equitable doctrine of promissory estoppel, but adds a rebuttable presumption of reliance borrowed from the “fraud-on-the-market” theory under Federal securities law. Under this approach, a patent holder’s public commitment is enforceable by any participant in the relevant market, absent a showing that it knowingly rejected the commitment. The market reliance theory offers a robust means for enforcing legitimate patent pledges by third party market participants, and extends the effect of such pledges to downstream purchasers of patents. As such, the market reliance theory could fill a critical gap in the existing patent enforcement landscape and give greater assurance to the technology markets that depend on them.

The appeal to the Supreme Court in Petrella v. Metro-Goldwyn-Mayer deals with the equitable defense of plaintiff’s laches before suing for copyright infringement. Laches is unreasonable and prejudicial delay. MGM allegedly violated plaintiff’s copyright repeatedly over a period of many years; the statute of limitations has not run on the most recent violations. Plaintiff argues that laches should never apply to a cause of action with a statute of limitations. Defendant argues that laches should bar all relief if defendant relied on plaintiff’s failure to sue earlier, without having to match defendant’s reliance to the remedies plaintiff seeks. This scholars’ amicus brief, which supports neither party, argues against all-or-nothing solutions. In particular, the brief says that laches should be available as needed to protect defendant’s reliance, but that defendant should have to show how particular remedies would unfairly override particular reliance interests. Plaintiff also argues that laches should be unavailable because it would be a ground for refusing an injunction that was not mentioned in eBay v. MercExchange. The scholars’ brief takes this occasion to point out several unintended untoward consequences of the four-part test in eBay.

This article addresses an open question of pressing practical import – whether people and businesses operating in the shadow of a legalization conflict have a reliance defense. A legalization conflict arises when conduct is decriminalized by one authority while remaining criminalized under another legal regime. For example, drugs, guns, undocumented immigrants, and giving legal advice or financial support for certain activities, may be both illegal and legal under conflicting regimes. People plan their lives, hopes and financial affairs around legalization laws and decrees. If people take actions now in reliance, will they face sanctions later? The question is of great import for many people and businesses, as well as the lawyers who advise them. The article argues that reliance defenses should be available when governmental actors in charge of enforcing the criminal regime expressly acquiesce in the competing legalization. In such cases, reliance is reasonable and estoppel is required lest people or businesses be lulled by the statements of actors charged with administering the law into a snare of sanctions. Potential objections regarding privileging governmental lawlessness and the danger of giving people a normative choice of law that enables strategic gamesmanship are addressed.

Italian Abstract: Una valutazione delle recenti sentenze della Corte Costituzionale italiana (1/2014 e 238/2014) dalle quale si ricava una scarsa attenzione della stessa Corte verso il diritto internazionale. I problemi derivanti dal rifiuto di applicare correttamente il diritto internazionale in Italia.English Abstract: A thorough comment of the judgements of the Italian Constitutional Court (No. 1/2014 and 238/2014) showing the poor attention of the Court to International Law.

Doe has not satisfied the requirements for sustaining the promissory estoppel defense. As Doe admitted, the elements of promissory estoppel are (1) a promise; (2) foreseeability by the promisor that the promisee will rely on the promise; (3) substantial reliance by the promisee to his detriment; and (4) a definite finding that injustice can be avoided only by enforcement of the promise. Zenor v. El Paso Healthcare Sys., Ltd., 176 F.3d 847, 864 (5th Cir. 1999). These elements are of increasing significance in this case and, thus, will be discussed in the order of importance.

This short academic note explores media interpretations of a recent interim order of the National Green Tribunal in India, in light of legal rights of residents and prevailing doctrines of legitimate expectation and promissory estoppel. The note then concludes with suggestions for obtaining clarifications on the subject for maintaining harmony in interpretation of the Tribunal’s interim orders with these extant legal rights and doctrinal assumptions.

This paper addresses three aspects of the 'defence' of investor illegality in investment treaty arbitration. Firstly, the paper takes issue with the suggestion made by some tribunals that investors must only comply with the 'fundamental principles' of host state law, rather than all of host state law.Secondly, the paper rejects the suggestion from other tribunals that investors must only comply with laws related to investment, and not other laws. Thirdly, the paper observes that, while estoppel arguments are often accepted by tribunals on questions of investor legality, these arguments are to some extent inconsistent with the frequent insistence that investment treaties seek to promote respect for legality and the rule of law. The third section of the paper also contends that estoppel arguments are limited, in that they cannot be taken to apply in cases of corruption or fraud, nor (perhaps) in cases of breach of fundamental host state laws.

One of the most serious pathologies of the modern class action is the danger of serial attempts to certify a class action. Because the bar of res judicata traditionally applies solely to the parties who had their day in court, it is easy for class action attorneys to seek certification for a never-ending parade of identical class actions, simply by changing the named plaintiffs, who, for purposes of certification, are completely fungible. As a result, the potential for redundancy, inefficiency and harassment of potential class defendants is all but unstoppable, effectively forcing defendants to settle class actions which may well fail on the merits. In Smith v. Bayer, the Supreme Court did little or nothing to ameliorate the problem. Instead, it simply assumed that the enactment of the Class Action Fairness Act (CAFA) will obviate the problem by authorizing removal to federal court of class actions brought in state court. But the Court grossly overstated the impact of CAFA on this serious problem. In this Article, we propose a solution to the problem of serial certification attempts by reconsidering the underlying DNA of the modern class action. In so doing, we explain the important differences between the nature of the attorney-client relationship in traditional litigation on the one hand and in the modern class action, on the other. These factors lead us to re-characterize the modern class action as a form of “guardianship” litigation model. In effect, the class attorneys operate as the litigant, acting on behalf of the interests of the absent class members. The modern class action, then, represents a form of what can be labeled “capitalistic socialism” — class attorneys work to redistribute wealth to those whom they represent, out of what are often purely capitalistic motivations. Once one accepts the guardianship model as the proper description of the modern class action, it logically follows that the class attorneys, as well as the named plaintiffs, should be treated as real parties in interest for purposes of res judicata. Admittedly, such an alteration represents a radical shift in res judicata theory, but it does so in order to bring modern res judicata doctrine in line with the innovative nature of the modern class action. As a result of our proposal, class attorneys will not be able to engage in harassment simply by changing fungible named plaintiffs. Instead, class attorneys, like any real party in interest, will have only one opportunity to seek class certification; a denial of certification will constitute direct estoppel barring the class attorneys from ever seeking re-certification under an identical standard.

There is a saying that the traditional legal principles have been bent to facilitate the operations of the negotiable instruments such as bill of exchange or letter of credit. Most of the contenders are of the opinion that the instruments are completely contrary to the doctrine of consideration. They also believe that the principle of negotiability undermines traditional principles like ‘nemo dat quod non hebet’. The article has, with arguments and instances, made it clear that a payment obligation without the presence of consideration is not unprecedented. In this point the article has made a reference to the seal contract where consideration was never sought. Furthermore, it is well established that under the doctrine of estoppels a contract is valid even in the absence of consideration and customarily a contract without consideration is not invalid. On the other hand, it is proved that the principle of negotiability was not only exception to the doctrine of nemo dat principle. For example 'market overt' doctrine which was oppose to the nemo dat doctrine was well accepted and supported. Above all it has to be noted that the doctrine of negotiability has not come from the outside of the traditional legal principles rather it, itself, is one of the traditional principles and the concept of negotiability has been existed long before acceptance of nemo dat principle in common law.

The United States’ Supreme Court had never upheld a claim of estoppel against the government. A citizen relying on government’s advice does that at her peril: if the government was wrong, if it misrepresented the statute or interpreted it wrongly, it can (by some interpretations, must) go back on its word and the citizen has no recourse. The Supreme Court provided many arguments for that position, but the core of them involves protection of what the Europeans refer to as “the principle of legality”: the executive does not have the ability to waive requirements from primary legislation or deviate from statutes, even to protect reliance. Similar concerns enter the law in other systems – as demonstrated in this article for the U.K., France and Israel. However, this position comes with a price. There are costs to the (usually innocent) relying citizen, both in money and in autonomy. There are costs to the government, in loss of trust and potential loss of legitimacy. The United States’ approach does not balance these costs; it completely privileges the principle of legality. The other systems discussed here do a better job balancing both interests and providing some protection to the relying citizen. They protect reliance in a number of situations. And they provide monetary damages in other cases, where forcing the government to adhere to its initial position would harm the public interest too much. This article suggests that not protecting reliance is unjustified, and draws on the comparative materials to demonstrate the interests at stake and offer a solution to the dilemma that allows the court to protect the principle of legality while also protecting the citizen’s interest: by suggesting an administrative law solution, and by providing a monetary remedy in appropriate cases.