Introduction

While consumer protection policy has an ancient genesis, dating back at least to Roman times with the adoption in Roman law of various implied warranties against latent defects in the sale of goods, the current legislative and regulatory consumer protection framework in most industrialised countries largely finds its genesis in the consumer and more general policy activism of the 1960s and 1970s, during which period most of the major contemporary consumer protection statutes were first enacted or extensively elaborated. As we enter the twenty-first century, pressures on these legal and regulatory regimes are mounting, spurred both by changes in the nature of modern industrial economies and by the evolution of economic theory. In terms of the former, the rapidity of technological change, globalisation and deregulation of formerly regulated monopolies have dramatically expanded the range of consumer products and services available in any given jurisdiction, making product and service-specific regulation increasingly problematic and intensifying the informational challenges faced by consumers. In terms of the latter, a veritable revolution in industrial organisation theory over the past two or three decades, particularly as it relates to market structure, bargaining power and information, has rendered simplistic structure–conduct–performance paradigms that keyed on a small number of variables (such as concentration levels) and that underpin many aspects of contemporary consumer protection policy also increasingly problematic.

Introduction

A. The Analytical Problem

The regulation of family business financial arrangements has become a major problem for contract lawyers in Commonwealth jurisdictions. While the communality of family life and the informality and trust that it engenders are often rightly celebrated, they can also permit dominant family members to impose financial risks on other members that they would not otherwise choose. A recurrent example involves family homes being used as security for business ventures being undertaken by family members. Wives are sometimes induced by their husbands, who operate small businesses that are in financial difficulties, to enter into a mortgage of the jointly owned family home to secure the business's line of credit. The business subsequently fails and the bank moves to foreclose on the mortgage. Similarly, parents are sometimes induced by adult children to enter into security transactions to obtain credit for the child's business. Not understanding the legal implications of the transaction or appreciating the risks of the venture, wives and elderly parents can be led to stake their interest in their home in what they ought to view as a poor investment. When these risks materialize, courts are asked to allocate the loss from the venture as between the unsophisticated family members and the lender holding the security. The principles upon which courts make these allocations determine the terms upon which lenders will advance credit to many small businesses.

Introduction

Many trade scholars – both lawyers and economists – view the increasing preoccupation with “fair trade” as the most fundamental intellectual challenge or threat to the liberal trading order that has arisen in recent decades. This refers to the proliferation of arguments that free trade is only “fair” where one's trading partners adopt certain kinds of domestic policies and/or refrain from others (whether the policy area be competition law, intellectual property rights, regulation of services, environment, or labor standards), although concerns that the practices of one's foreign competitors are unfairly rigging the marketplace have a long genesis in international trade law, as reflected particularly in antidumping and countervailing duty laws.

The fair-trade claims that are currently generating the most debate in the trade community are those related to environmental and labor standards. The Economist magazine recently noted that “labor standards and environmental issues are playing an increasing role in international trade disputes” and are likely to be the central area of conflict between developed and developing countries in the next decade.

Most free traders see recent demands that trade be linked to compliance with environmental and labor standards as motivated by the desire to protect jobs at home against increased competition from the Third World and view many fair traders as charlatans (protectionists masquerading as ethicists).