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Cite as: December 2013 87 (12) LIJ, p.74

This month’s reviews cover the changing nature of the international legal landscape, intellectual property, torts and environmental law. 

Shifting Global Powers and International Law

Rowena Maguire, Bridget Lewis and Charles Sampford (eds), Shifting Global Powers and International Law: Challenges and opportunities, 2013, Routledge, Taylor and Francis Group

This collection of 14 essays deals with issues of considerable significance relating to international law, politics and economics.

“Perspectives on past and future international powers” in Part I is both present and future oriented in that an implicit if not explicit theme is that the United States’ role as a major and for a time “sole” superpower is being challenged. And this challenge provides opportunities both for the other aspiring (major) powers and for the United States itself. This theme can be seen in the chapters by Shirley Scott and Charles Sampford. The rise of China is a trend which no economist, political scientist, international relations scholar or international lawyer could down play, far less ignore, and is discussed in Ross P Buckley’s “The rise of China and its impact on international economic governance”.

Part II “Impact of emerging economies on international legal frameworks” consists of five essays including “The BRICS and the responsibility to protect in Libya and Syria” by Andrew Garwood-Gowers, which is of particular import and relevance as, at the time of writing this review, the United States was poised to militarily intervene in Syria, though arguably not necessarily under “Responsibility to Protect”. Rahmat Mohamad’s article on the International Criminal Court is also timely in that Kenya is considering withdrawing from the International Criminal Court treaty.

Part III deals with human rights norms and protections, and the articles of particular interest are those by Bridget Lewis regarding environmental constitutional reform in the developing world and Ben Matthew which analyses whether “an absolute human right” against female genital mutilation could emerge.

One factual or at least typographical error can be noted. On page 47, footnote 42 of Charles Sampford’s article, it is stated that US president Dwight D Eisenhower was ‘willing . . . to breach international law in overthrowing [Prime Minister] Mossadegh’ of “Iraq” (in 1953). In fact Mossadegh was the Prime Minister of Iran.

The publication of Shifting Global Powers is timely and appropriate. Scholars and students of international law related disciplines would benefit from reading and thinking about various issues discussed in it.

Dr Myint Zan, Professor, Faculty of Law, Multimedia University, Malacca, Malaysia

Intellectual Property Law and Policy

Hugh C Hansen, Intellectual Property Law and Policy (Volume 12), 2013, Hart Publishing

This book contains edited versions of presentations made at the Fordham University School of Law’s 17th Annual Conference on Intellectual Property Law and Policy held at Cambridge University on 15-16 April 2009.

There were 157 speakers from 31 countries at the conference, and the variety of topics presented in this volume reflects the multinational quality of the presenters.

The volume is comprehensive in its coverage of the most important areas of intellectual property law and many of the articles focus on recent changes in trade mark, patent and copyright laws.

Some of the most interesting and relevant aspects of the book are:

  • a comparison between the “obviousness” and “inventive step” approaches to the granting of patents and how they both interact with the prior art base;
  • an examination of In re Bilkski 545 F.3d 943 (Fed. Cir 2008) and In re Comiskey 499 F.3d 1365 (Fed. Cir 2007), two recent United States decisions regarding intangible patents;
  • considerations of the extent to which re-evaluation of exceptions and limitations to copyright law would be realistic or even permitted under the current treaties, and how the Good Book Settlement might effect the current norms;
  • a look at the proliferation of trade marks in online contexts such as advertisements and ebay listings, and whether this constitutes “use”;
  • a discussion regarding whether the endless creative potential of the internet is being restrained due to over-regulation, and suggestions for some potential new models for providing rights to use intellectual property for consumers; and
  • a study that looks at more than 500 texts containing discourse on current global intellectual property policy in order to determine developing trends in both public and commercial attitudes towards IP law.

The volume also contains sections dealing more broadly with trade law and competition law, which serve to add valuable context to the presentations.

Like the previous volumes, this volume contains presentations on a wide variety of topics, all given by experts in their fields. It should prove an informative and elucidating read for any intellectual property practitioner.

SHARON GIVONI AND KIRALEE MIDDLETON, Intellectual Property Lawyers, Sharon Givoni Consulting

Tort Law Defences

James Goudkamp, Tort Law Defences, 2013, Hart Publishing

In the words of the author, “the overarching aims of this book are to explain how defences operate as a system and to learn how they are woven into the tapestry that is tort law”. The author asserts that this is the first time “a systematic study of the law of defences as an independent field” has been undertaken.

Whether or not this is the case, the focus of the book is to provide a mechanism for conceptualising the law governing tort defences. It does so by setting out the author’s recommended taxonomy of defences in tort law. The book does not, nor is it intended to, provide a comprehensive statement of the current state of tort law defences or when they should apply in any given situation.

The book is divided into nine chapters. The first chapter examines, among other things, the multiple meanings of “defence”. The author advocates that a proper definition of “defence” is that which “relieves the defendant of liability even though all of the elements of the tort in which the claimant sues are present”. This definition is adopted throughout the book.

The book then examines the distinction between tort and defences (Chapter 2); the distinction between denials and defences (Chapter 3); the author’s taxonomy of how tort law defences should be arranged, consisting of categorising defences into “justification defences” and “public policy defences” (Chapter 4); application of his taxonomy (Chapter 5); and the implications (Chapter 6); rival taxonomies and why they compare unfavourably to his taxonomy (Chapter 7); denials of responsibility (Chapter 8); and issues to consider regarding the future of tort law defences (Chapter 9).

The author passionately argues that some legal commentary of tort law defences is flawed or without merit, and that his taxonomy is to be preferred to other attempts at conceptualisation.

DAVID KIM, Barrister

Environmental Law in Australia

Gerry Bates, Environmental Law in Australia, (8th edn), 2013, Lexis Nexis, Butterworths, pb $149

At 964 pages, Environmental Law in Australia has gained much depth and breadth since its first publication in 1983 and the scope of this text is both its strength and its weakness. The book is divided into six parts:

  • the development of environmental law: institutions, influences and instruments;
  • implementation of environmental law;
  • environmental assessment: strategic and project-based;
  • protection of biodiversity;
  • environmental management: protecting natural assets and environmental values; and
  • environmental litigation: enforcement and accountability.

Its capacity to set out the framework and principles of environmental regulation in Australia is without peer. But the difference in legislative approaches between the various states means that analysis of one state’s environmental rules may mean little to a practitioner across the border.

This effect is compounded by the large number of statutes that comprise a jurisdiction’s environmental laws. For instance, the Table of Statutes in the text lists more than 80 different instruments for Victoria alone. A practitioner providing advice might only consider one or two of those, meaning the book will only rarely provide more than a good place to start. And there are loose-leaf services that deal with our state’s primary environmental laws, the Planning and Environment Act 1987 and the Environment Protection Act 1970, in more detail and with greater currency.

Notwithstanding the books’ character as an academic treatise, Bates’ work is not an overwhelmingly theoretical analysis. The Table of Cases runs to over 40 pages and Bates’ commentary rarely strays far from matters that have been judicially considered. So Environmental Law in Australia deserves to retain its status as the pre-eminent choice for students of environmental law.

MATTHEW TOWNSEND, Barrister

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