The trespass torts are some of the oldest causes of action in the common law. These torts create a number of fundamental common law rights protecting our personal dignity, our desire for autonomy, and our interests in the physical integrity of our bodies and the exclusive possession of land and goods. This chapter examines the nature of these torts and focuses on the three forms of trespass to the person: battery, assault and false imprisonment. It also briefly considers the potential development of a tort of privacy. Chapter 6 looks at the torts of trespass to land, trespass to goods, conversion and detinue.

This chapter considers two torts that impose civil liability arising out of the failure to exercise, or the wrongful exercise, of statutory duties and powers. The first is the tort of breach of statutory duty. A breach of statutory duty will not ordinarily give rise to a private law cause of action. However, a private law cause of action will arise if, on the proper construction of the statute, it can be shown that the statutory duty was imposed for the protection of a limited and specific class of persons and the legislature intended members of that class to have a private right of action to obtain a remedy for the breach of the statute. The gravamen of the second tort, misfeasance in public office, is the dishonest misuse of public power by a public officer. This tort provides a remedy where a public officer has misused their public powers or duties by acting intentionally so as to harm the plaintiff or by knowingly or recklessly exceeding their powers where they knew about, or were reckless as to the likelihood of, harm to the plaintiff.The chapter is not concerned with liability in negligence for the performance or non-performance of a statutory power or duty.

At their broadest, remedies are simply the different ways in which tortious disputes are resolved. Normally, the courts provide remedies upon an ultimate finding that the defendant actually breached a duty they owed the plaintiff – that is, upon the plaintiff successfully establishing the elements of their cause of action and the defendant failing to establish a relevant defence.This chapter begins by differentiating between self-help and court-ordered tort remedies. It then divides court-ordered remedies into two categories: first, specific relief, as exemplified by the remedy of injunction; and second, substitutionary relief, as exemplified by the remedy of monetary damages. This chapter mainly examines the remedy of ‘compensatory damages’. It focuses, in particular, on its role in remedying (or ‘putting right’) two types of harm that breaches of tortious duties often cause plaintiffs to suffer: property damage and personal injury. The final part of the chapter addresses remedies in cases involving multiple tortfeasors.

Defamation is a ubiquitous tort in modern society. Defamation protects a person’s reputation, rather than their bodily integrity, goods or land. With the rapid expansion of social media, it is frighteningly easy for false and disparaging comments to spread online like wildfire. This chapter introduces the tort of defamation and its purpose in society. Defamation has undergone substantial reform over the years, thus key amendments are explained, along with emerging issues. The chapter outlines and explains the elements of defamation and explores cases that clarify how courts interpret and apply defamation principles. Next, defences and remedies are explained, followed by the increasing focus on defamation and social media. The chapter concludes with a brief discussion of privacy and breach of confidentiality, on which plaintiffs can rely when defamation does not assist.

This chapter will address the two nuisance torts: private nuisance and public nuisance. Both torts concern interferences with the plaintiff’s ability to use and enjoy their land, with the extent of the interference the key determinant of which tort is applicable. Private nuisance involves an interference with the plaintiff’s use and enjoyment of their individual property rights, whereas public nuisance involves an interference with the health safety, comfort and convenience of the public at large, but where the plaintiff has suffered special or particular damage over and above other members of the public.The nuisance torts play an important role in providing a cause of action for environmental pollutants, such as noise, smell, smoke and fumes. The torts are adaptive to contemporary twenty-first century issues – for instance, it is possible that these torts can be utilised to obtain remedies from operators of facilities that emit greenhouse gas emissions for harm caused by global warming and rising sea levels.

The Mono Lake case was followed by a surge of interest across the nation in use of the public trust doctrine as a tool of environmental advocacy, and in some jurisdictions, a statement of environmental rights. This chapter reviews the ongoing development of the doctrine around the United States: the different forms of law through which it operates, the different resources it protects, different values vindicated, and even different legal theories about the nature of the doctrine itself. The variety reveals there is no such thing as “the American public trust doctrine,” only a tapestry of related implementations of the public trust principles at the core of the doctrine – the partnered state trustee obligations and corresponding public rights. The chapter also considers the contested intersection between the trust and federal law. While scholars debate the existence of a federal trust, the doctrine is increasingly recognized as a background principle of state property law for the purposes of takings litigation under the federal Fifth Amendment. In a little-known chapter of Supreme Court history, the justices negotiated not to address the role of the trust in takings litigation.

Fundamental rights increasingly determine the balance between public and private interests within both market regulation and private law, shaping the relationship between these two forms of legal discourse. This chapter takes stock of the case law of national, international, and supranational courts on the horizontal effect of fundamental rights and explores the potential of such rights to contribute to reconciliation between market regulation and private law. It shows that fundamental rights can play a double role in this context. On the one hand, fundamental rights can reinforce the regulatory dimension of private law, prompting courts to rebalance the interests of the parties to private law relationships in the light of public virtues. On the other hand, fundamental rights can enable courts to bring regulatory measures in line with the traditional private law reasoning focused on individual preferences and interpersonal justice. In both instances, courts may step beyond what the EU or national legislators intended to achieve through public regulation in terms of reorienting private law relationships towards the common good or enhancing interpersonal justice. Fundamental rights thus serve as a two-way bridge between market regulation and private law.

Justice between private individuals has commonly been viewed as a matter for civil courts. In recent years, however, regulatory agencies have played a role in providing redress to aggrieved individuals in mass damage cases. This chapter examines how regulatory enforcement deals with and should deal with the issue of private law remedies for regulatory violations. It focuses on the actual and desirable role of national and European regulatory agencies, which typically use administrative law means to deter regulatory breaches, in providing compensation to victims of mass violations of EU private law. The chapter presents three models of the relationship between regulatory enforcement powers and private law remedies within the operation of administrative agencies – separation, complementarity, and substitution – and discusses their main characteristics, manifestations, and implications. Each model is analysed in terms of its potential to reconcile the pursuit of the public interest in deterring regulatory violations with a traditional private law concern to ensure interpersonal justice by compensating their victims. The models also reflect and address the tension between uniformity and diversity in the remedial domain. The chapter concludes by elucidating the practical relevance of its findings in the broader context in which regulatory agencies operate in different jurisdictions.

Abstract: This chapter examines post-judgment procedures in international law that aim at (or can be used for) compliance adjudication and the applicable remedies. Specific procedures for compliance adjudication exist in regional trade agreements as well as in some multilateral treaties establishing adjudication mechanisms. Additionally, ad hoc agreements to submit disputes to adjudication sometimes permit adjudication on implementation or compliance. States have occasionally resorted to these provisions. A few ICs, and in particular the Inter-American Court of Human Rights, have themselves established the permissibility of compliance adjudication. In a few cases, states have sought to employ requests for interpretation to obtain rulings on compliance. The chapter concludes by considering the permissible scope of review and the remedies applicable at the compliance stage, including the lawfulness of remedy repetition and remedy escalation.

Chapter 7 sets forth proposed speech-protective and pro-competitive reforms of trademark registration and enforcement laws for consideration by governments. Among other things, legislatures could allow challenges to the validity of a mark on any ground at any time, and not allow a registrant’s right to use the mark to become incontestable. Legislatures should also consider whether to categorically exclude certain expression with substantial inherent value from trademark registration and protection; not register proposed marks without proof they are distinctive, not functional, and are genuinely used and perceived as a source-identifying mark; and clarify that weak marks with substantial inherent value only have a narrow scope of trademark protection. They should also require proof this use of another’s mark is likely to cause confusion and material harm for trademark liability, and consider adopting fair use tests requiring a higher threshold for infringement liability and/or more affirmative defenses for certain informational, expressive, or decorative uses of marks. For example, one recommended defense is for any noncommercial use of a mark other than as a designation of source for the accused infringer's goods, services, or message. Trademark remedies and secondary trademark liability rules should also take free speech interests into account.

This chapter surveys the international legal framework governing transnational corporations (TNCs) and human rights. It begins with a brief history of the corporation, traces the rise of transnational corporate power since the 1970s, and offers a definition of the TNC. It then outlines the various ways in which corporate activities can adversely affect human rights, drawing on some of the most notorious incidents of recent decades. The chapter highlights the persistent difficulty of regulating corporations at the international level and describes the current regime under which states bear primary responsibility for preventing and remedying human rights abuses within their territories, including those committed by businesses. Since 2010, several states have introduced modern slavery legislation requiring companies to conduct due diligence on their operations and supply chains.

Abstract: This chapter examines the system of remedies applied in WTO dispute settlement, sometimes called ‘prospective’ or ‘forward-looking’. This system integrates remedy repetition and remedy escalation, with remedies being issued sequentially: initial rulings (Mere Adjudication and Declarations of Breach) are followed by the possibility of compliance adjudication, and, where this is insufficient, the prospect of escalation through authorised trade retaliation (Permissible Responses). While authorised retaliation is often seen as the key WTO remedy, the practice shows that it is rarely implemented. Instead, the system’s strength lies in mobilising the deterrent effect of remedy escalation together with the reputational costs of declared non-compliance. The chapter considers the historical evolution of remedies applied in international trade law, from the GATT 1947 to the current Dispute Settlement Understanding, analysing their central components and practical applications. The design of the WTO’s system of remedies, which seeks to mobilise the various layers of pro-compliance forces of international law, provides an analytical framework for the subsequent chapters assessing the remedial practice of international courts in the face of non-compliance.

There are many reasons why Roman law probably shouldn’t be included in a study tracing the origin of rights. Roman law, first of all, was the law of an ancient slaveholding civilization, built on a ruthless legacy of war and conquest. As any student of Roman law will know, slavery was interwoven into the fabric of Roman law, making it impossible to understand fully how the Roman legal system operated without recognizing the everyday legal reality of Roman slavery. Practically every aspect of Roman law depended on whether those subject to it were legally free or slave. Given this illiberal legacy of slavery and the basic inequality of status encoded into Roman law, it’s difficult to see how Roman law could plausibly serve as a model for theorizing rights.

There is a statutory right for employees not to be unfairly dismissed. The right usually requires a qualifying period of continuous employment, and claim has to be made to an employment tribunal within three months of the effective date of termination. The employee has to prove dismissal has occurred, though resignation in response to a fundamental breach of contract by the employer counts as constructive dismissal. The courts have interpreted the statutory test of fairness to require proof that the employer acted outside of the range of reasonable responses to the fault of the employee. Some reasons for dismissal are automatically unfair. The normal remedy for unfair dismissal in practice is not reinstatement but a modest award of compensation for which there is an upper limit.

Based on international standards, the EU Directive on Working Time, implemented in the Working Time Regulations, places limits on the working week, mandates rest periods each day and each week, and provides for paid annual leave. These rights are subject to various exclusions for certain types of employment, permit some opt-outs by terms in the contract of employment, and also permit collective agreements to modify the rights. The chapter considers these various matters, and concludes by examining the weak remedies provided by health and safety inspectors and some civil claims.

This chapter outlines to what extent which kinds of remedies are available to the successful applicant. Albeit the differences in the wording of the various IAT statutes, it argues that it is possible to map out guiding principles for the assessment of the remedies to be granted, including remedies inherent in IATs’ powers. Moreover, it offers a critical analysis of the legal framework and its implementation by IATs in relation to the right to an effective remedy.

Technological disruption leads to discontent in the law, regarding the limited remedies that are available under private law. The source of the problem is a ‘private law’ model that assumes that the function of law is to correct wrongs by compensating individuals who are harmed. So, the model is based on (i) individual claimants and (ii) financial redress. If we copy this private law model into our regulatory regimes for new technologies our governance remedies will fall short. On the one hand, the use of AI can affect in a single act a large number of people. On the other hand, not all offences can be cured through awarding money damages. Therefore, it is necessary to rethink private remedies in the face of AI wrongs to make law effective. To achieve this, the mantra of individual compensation has to be overcome in favor of a social perspective should prevail including the use of non-pecuniary measures to provide effective remedies for AI wrongs.

Companies come into existence through registration. As discussed in Chapter 4, for a company to be registered it must have a constitution and/or have adopted all or some of the replaceable rules set out in the Corporations Act. The constitution and/or replaceable rules establish the internal rules that govern how the company operates. This chapter discusses the importance of these rules, whom they bind, and how they can be amended. It also discusses the rules that apply when there is a variation of the rights attaching to shares.