"The modern trading trust bears little resemblance to the family trusts used by wealthy English f... more "The modern trading trust bears little resemblance to the family trusts used by wealthy English families of times past to protect family assets over generations. A corporate trustee with minimal paid up capital can present a creditworthy appearance as the trust assets are in its name, and creditors may enter into a relationship on that basis. Unsecured creditors only have a personal right against the trustee, however in the event of the insolvency of the trustee the creditors may stand in the shoes of the trustee (the equitable remedy of subrogation) and claim through his right to have his liabilities indemnified. However, this right is useless if the trustee has behaved improperly or the trust deed has excluded this right.
This essay considers the precarious position of unsecured creditors of trading trusts. The High Court has held that unlike England, where the overarching principle of unjust enrichment is the law, settled equitable principles that that fashion a remedy to fit the nature of the case and its facts are the law in Australia.
Alternative pathways for unsecured creditors are canvassed, but ultimately relief is to be found in the inherent power of the court to control trusts and administer practical equity. The categories of circumstance where a court will grant subrogation to achieve practical justice are not closed. The equitable device of a trading trust is a defined circumstance that awaits the further development of equitable rules to achieve practical justice."
Piracy is posing an immense threat to the security of global shipping lanes. The State regulatory... more Piracy is posing an immense threat to the security of global shipping lanes. The State regulatory regime has been unable to quell piracy due to shortcomings of the UNCLOS definition of piracy and jurisdictional problems, particularly in relation to the status of Somalia as a failed State. As the size of the ransoms has increased so too has the sophistication of these criminal gangs who operate over millions of square kilometres in the open seas.
The realm of merchant shipping has an intensely transnational context and so maritime law has evolved over hundreds of years to develop customs and usage to minimise and control the multiplicity of risks that accompany the shipping of goods over long distances. The lack of standard contract terms for the carriage of armed guards has complicated risk assessment for insurers. As well, guards have been operating in a legal vacuum as the High Seas are a global commons beyond the jurisdiction of States.
A norm is transnational if is adopted by a variety of State and non-state actors, (individuals, NGOs, IGOs and companies), it arises from custom and usage, it is rational and economically efficient and when the parties find an equilibrium to deal with a common problem. The norm is soft law if it lacks obligation. However, transnational commercial norms are usually enforced through contracts and arbitral tribunals. BIMCO is a NGO representing multiple shipping interests and whose hallmark is the production of standard contracts to harmonise maritime practice that are fair to all parties, for example it‟s pro formas for charter
parties and bills of lading. It has produced a new GUARDCON contract after wide consultation to regulate the carriage of private security teams and the use of lethal force. This satisfies the criteria of a transnational commercial norm.
"The modern trading trust bears little resemblance to the family trusts used by wealthy English f... more "The modern trading trust bears little resemblance to the family trusts used by wealthy English families of times past to protect family assets over generations. A corporate trustee with minimal paid up capital can present a creditworthy appearance as the trust assets are in its name, and creditors may enter into a relationship on that basis. Unsecured creditors only have a personal right against the trustee, however in the event of the insolvency of the trustee the creditors may stand in the shoes of the trustee (the equitable remedy of subrogation) and claim through his right to have his liabilities indemnified. However, this right is useless if the trustee has behaved improperly or the trust deed has excluded this right.
This essay considers the precarious position of unsecured creditors of trading trusts. The High Court has held that unlike England, where the overarching principle of unjust enrichment is the law, settled equitable principles that that fashion a remedy to fit the nature of the case and its facts are the law in Australia.
Alternative pathways for unsecured creditors are canvassed, but ultimately relief is to be found in the inherent power of the court to control trusts and administer practical equity. The categories of circumstance where a court will grant subrogation to achieve practical justice are not closed. The equitable device of a trading trust is a defined circumstance that awaits the further development of equitable rules to achieve practical justice."
Piracy is posing an immense threat to the security of global shipping lanes. The State regulatory... more Piracy is posing an immense threat to the security of global shipping lanes. The State regulatory regime has been unable to quell piracy due to shortcomings of the UNCLOS definition of piracy and jurisdictional problems, particularly in relation to the status of Somalia as a failed State. As the size of the ransoms has increased so too has the sophistication of these criminal gangs who operate over millions of square kilometres in the open seas.
The realm of merchant shipping has an intensely transnational context and so maritime law has evolved over hundreds of years to develop customs and usage to minimise and control the multiplicity of risks that accompany the shipping of goods over long distances. The lack of standard contract terms for the carriage of armed guards has complicated risk assessment for insurers. As well, guards have been operating in a legal vacuum as the High Seas are a global commons beyond the jurisdiction of States.
A norm is transnational if is adopted by a variety of State and non-state actors, (individuals, NGOs, IGOs and companies), it arises from custom and usage, it is rational and economically efficient and when the parties find an equilibrium to deal with a common problem. The norm is soft law if it lacks obligation. However, transnational commercial norms are usually enforced through contracts and arbitral tribunals. BIMCO is a NGO representing multiple shipping interests and whose hallmark is the production of standard contracts to harmonise maritime practice that are fair to all parties, for example it‟s pro formas for charter
parties and bills of lading. It has produced a new GUARDCON contract after wide consultation to regulate the carriage of private security teams and the use of lethal force. This satisfies the criteria of a transnational commercial norm.
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This essay considers the precarious position of unsecured creditors of trading trusts. The High Court has held that unlike England, where the overarching principle of unjust enrichment is the law, settled equitable principles that that fashion a remedy to fit the nature of the case and its facts are the law in Australia.
Alternative pathways for unsecured creditors are canvassed, but ultimately relief is to be found in the inherent power of the court to control trusts and administer practical equity. The categories of circumstance where a court will grant subrogation to achieve practical justice are not closed. The equitable device of a trading trust is a defined circumstance that awaits the further development of equitable rules to achieve practical justice."
The realm of merchant shipping has an intensely transnational context and so maritime law has evolved over hundreds of years to develop customs and usage to minimise and control the multiplicity of risks that accompany the shipping of goods over long distances. The lack of standard contract terms for the carriage of armed guards has complicated risk assessment for insurers. As well, guards have been operating in a legal vacuum as the High Seas are a global commons beyond the jurisdiction of States.
A norm is transnational if is adopted by a variety of State and non-state actors, (individuals, NGOs, IGOs and companies), it arises from custom and usage, it is rational and economically efficient and when the parties find an equilibrium to deal with a common problem. The norm is soft law if it lacks obligation. However, transnational commercial norms are usually enforced through contracts and arbitral tribunals. BIMCO is a NGO representing multiple shipping interests and whose hallmark is the production of standard contracts to harmonise maritime practice that are fair to all parties, for example it‟s pro formas for charter
parties and bills of lading. It has produced a new GUARDCON contract after wide consultation to regulate the carriage of private security teams and the use of lethal force. This satisfies the criteria of a transnational commercial norm.
This essay considers the precarious position of unsecured creditors of trading trusts. The High Court has held that unlike England, where the overarching principle of unjust enrichment is the law, settled equitable principles that that fashion a remedy to fit the nature of the case and its facts are the law in Australia.
Alternative pathways for unsecured creditors are canvassed, but ultimately relief is to be found in the inherent power of the court to control trusts and administer practical equity. The categories of circumstance where a court will grant subrogation to achieve practical justice are not closed. The equitable device of a trading trust is a defined circumstance that awaits the further development of equitable rules to achieve practical justice."
The realm of merchant shipping has an intensely transnational context and so maritime law has evolved over hundreds of years to develop customs and usage to minimise and control the multiplicity of risks that accompany the shipping of goods over long distances. The lack of standard contract terms for the carriage of armed guards has complicated risk assessment for insurers. As well, guards have been operating in a legal vacuum as the High Seas are a global commons beyond the jurisdiction of States.
A norm is transnational if is adopted by a variety of State and non-state actors, (individuals, NGOs, IGOs and companies), it arises from custom and usage, it is rational and economically efficient and when the parties find an equilibrium to deal with a common problem. The norm is soft law if it lacks obligation. However, transnational commercial norms are usually enforced through contracts and arbitral tribunals. BIMCO is a NGO representing multiple shipping interests and whose hallmark is the production of standard contracts to harmonise maritime practice that are fair to all parties, for example it‟s pro formas for charter
parties and bills of lading. It has produced a new GUARDCON contract after wide consultation to regulate the carriage of private security teams and the use of lethal force. This satisfies the criteria of a transnational commercial norm.