Volume 21. No. 7

Melbourne Law School published Volume 21 Number 7 of the University of Melbourne Law School Legal Studies Research Paper Series on SSRN.

This issue includes the following articles:

Andrew Higgins and Inbar Levy
Judicial Policy, Public Perception, and the Science of Decision Making: A New Framework for the Law of Apprehended Bias (840)

The right to an impartial and independent tribunal is fundamental to the administration of justice and public confidence in it. However, the test for apprehended bias is not informed by psychological research on cognitive biases, and while courts purport to give effect to the views of a fair-minded and informed member of the public on the risk of bias, little attention has been given to what the public thinks in reality. Using doctrinal analysis and drawing on psychological literature, the article argues that the law must be re-examined with a view to closing the gap between the case law on which factors give rise to a reasonable risk of bias, public attitudes, and psychological research on decision-making. The article proposes a new framework for the law of bias, including a judicial code that identifies circumstances when judges should and should not sit based on legal policy considerations, measured public opinion, and relevant psychological studies, and new procedures and tests for courts dealing with cases that are not identified as automatic disqualification or non-disqualification scenarios under a code.

Tania Voon
The Security Exception in WTO Law: Entering a New Era (841)

This short paper reflects on developments in international trade affecting the security exception in the law of the World Trade Organization (WTO). The paper cautions against the increasing invocation of the exception in disputes and encourages progress in other areas of trade to avoid a WTO panel ruling on the exception.

Alysia Blackham and Dominique Allen
Resolving Discrimination Claims Outside the Courts: Alternative Dispute Resolution in Australia and the United Kingdom (842)

Alternative Dispute Resolution (‘ADR’) is a long-standing feature of both Australian and UK anti-discrimination law. In this article, we critically examine the advantages and disadvantages of using ADR to resolve a discrimination claim in Australia and the UK, and the effect ADR is having on discrimination law more broadly. While the UK and Australia have similar discrimination law statutes, and both largely rely on an individual rights model to address discrimination, they use ADR in contrasting ways, and with varying implications in practice. We argue that while ADR offers potential benefits in resolving discrimination claims, the extensive reliance on ADR in both jurisdictions to resolve disputes risks undermining the development of discrimination law. We offer five key areas in which the regulatory framework could be reviewed to address these limitations and risks.

Jacqueline Peel and Joelene Lin
Transnational Climate Litigation: The Contribution of the Global South (843)

Coinciding with negotiations for, and conclusion of, the Paris Agreement, litigation raising issues of climate change has become a global phenomenon. This global expansion gives substance to claims of a transnational climate justice movement with courts as important players shaping multilevel climate governance. However, most climate litigation scholarship and practitioner discussion focuses on court actions in developed countries of the Global North, with little analysis of climate cases in the Global South. Nonetheless, it is these countries—in Asia, the Pacific, Africa, and Latin America—that are among the most vulnerable to climate impacts.

This Article is the first to shine a light on the Global South’s contribution to transnational climate litigation. We argue that analysis of this experience is essential if transnational climate jurisprudence is to contribute meaningfully to global climate governance and to ensuring just outcomes for the most climate-vulnerable. Attention to the types of climate cases emerging in the Global South allows reframing of our understanding of transnational climate litigation to encompass suits that: raise climate issues “at the edge” as well as at the center of the litigation; frame claims in terms of constitutional and human rights; seek to hold governments to account for implementation and enforcement of existing mitigation and adaptation goals rather than pursuing new or better climate laws; and advance climate change concerns via a “stealthy” strategy that recognizes judicial reluctance to engage politically-charged climate policy questions.

Ying Liew
The 'Prima Facie Expectation Relief' Approach in the Australian Law of Proprietary Estoppel (844)

Whatever the position may have been before the High Court’s decision in Giumelli v Giumelli, it is now well-accepted that, in Australia, proprietary estoppel attracts the prima facie remedy of expectation relief. This paper asks why this remedial approach exists, and how it ought best to be understood. It notes that the ‘prima facie expectation relief’ position may either provide a strong or weak default position — in other words, courts have a choice either to depart from the prima facie position only where the remedy would be significantly disproportionate, or to take a more nuanced approach. Favoring the latter position, it discusses the principle- and policy-related reasons why this provides the best understanding of the remedial approach.

Ian Ramsay and Benjamin Saunders
An Analysis of the Enforcement of the Statutory Duty of Care by the Australian Securities and Investments Commission (845)

One of the most important and widely discussed duties imposed on company directors and officers is the duty in s 180(1) of the Australian Corporations Act 2001 to act with reasonable care and diligence. It is a duty that can be enforced by both private plaintiffs and the Australian Securities and Investments Commission (ASIC). The authors undertake an empirical study of all cases brought by ASIC for breach of the duty to act with care and diligence during the 25-year period 1993–2017 in order to assess the extent to which ASIC is changing governance standards through litigation. We find that ASIC has been ambitious in pushing the boundaries of s 180(1) and has had a strong success rate, proving a contravention in 83% of cases brought, and in a wide range of factual situations. The most common category of case in which a breach was proven was causing the company to breach the law, failing to prevent the company from breaching the law or committing acts which were inherently likely to constitute a breach of the law. There is a strong public interest focus in s 180(1) litigation, given that the main penalty sought by ASIC, and ordered by the courts, is disqualification from managing companies, which is a remedy that has as its primary objective the protection of the public. The high success rate, combined with the wide range of factual scenarios in which ASIC has established a breach, indicates that ASIC has had a significant impact on governance standards applicable to directors and officers of companies.