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Book reviews

Book reviews

By Law Institute Journal

Civil Procedure Courts 


This month’s books cover western legal traditions, franchising, the international law of the sea and Sir Frederick Darley. Western Legal Traditions Martin Vranken, Western Legal Traditions: A Comparison of Civil Law and Common Law, The Federation Press, 2015, pb $99 Many lawyers and law students fall into the trap of judging a book by how many pages it contains and how heavy it is. The outcome is to focus on the verbose and awkward to carry books since they are considered the most authoritative. Martin Vranken in Western Legal Traditions: A Comparison of Civil Law and Common Law published by Federation Press shows that this approach is fundamentally misguided. Writing effectively and succinctly is a difficult task and Vranken achieves great success. In the Preface, Vranken draws upon the dilemma about law itself, as both an art and also a science. Common law systems are reflected in the former and civil law systems are expressed in the latter. The book is structured in three parts. Part A considers the ‘building blocks’ and discusses the nature of comparative law as a process of legal research. It also distinguishes codification from precedent in the common law. Part B is focused upon “law in action” and takes a thematic approach. Topics include accidents, rescue, morality and industrial relations, court procedure and good faith in contract law. Part C examines common law and civil law from a European Union perspective. Consideration is also given to theories of convergence and divergence. The Charter of Fundamental Rights of the European Union is contained in the appendix. Throughout the book extensive footnotes are provided and further readings are suggested. This book is highly recommended for legal practitioners seeking to understand how two somewhat different legal systems operate. It is also of value for law students (both undergraduate and postgraduate) embarking upon the study of comparative law. The level of analysis contained in Western Legal Traditions: A Comparison of Civil Law and Common Law only comes about after many years of thought and reflection. Vranken is to be applauded for providing such an easy to read (and carry) book. Dr Christopher Brien, senior lecturer, College of Law and Justice, Victoria University Annotated Franchising Code of Conduct Stephen Giles, Annotated Franchising Code of Conduct, LexisNexis Butterworths, 2015, pb $98 This book annotates the Competition and Consumer (Industry Codes – Franchising) Regulation 2014, otherwise known as the Franchising Code of Conduct or the Code. The Code is a mandatory industry code prescribed under s51AE of the Competition and Consumer Act 2010 (Cth) and applicable to conduct occurring on or after 1 January 2015 in relation to a franchise agreement entered into (or renewed, extended or transferred) from 1 October 1998. The author is a well-known franchising lawyer, who has served for many years on the board of the peak franchising industry body, the Franchise Council of Australia, and has negotiated with the government on their behalf in regards to the last few amendments of the Code enacted. Part 1 of the book contains an introduction to the Code and general overview of the regulation of franchising in Australia. Part 2 of the book contains a concise summary of each section of the Code and commentary on its application. It tackles some of the grey areas in interpretation of the Code and provides general guidance through this regulation. Part 3 of the book contains a number of case summaries of franchise cases between the years 2000 and 2014. This part could be improved by adding a few more summaries of the leading franchise cases. The annotated Code is a great reference source for lawyers and others within the franchising industry who require a more in-depth understanding of the Code. Jane Garber-Rosenzweig, Gable Lawyers The International Law of the Sea Donald R Rothwell and Tim Stephens, The International Law of the Sea (2nd edn), Bloomsbury, 2016, pb $85 The law of the sea has a long, if ill-defined, history deriving from customary international law, some of which has been recognised in rulings from the International Court of Justice. There are also treaties and declarations. However, the most significant development for the subject has been the various United Nations Conventions on the Law of the Sea, in particular the most recent UNCLOS III. The text opines that UNCLOS III remains one of the most comprehensive international law-making instruments of its kind, comprising 320 articles in 17 parts with nine additional annexes. The text comprehensively covers all aspects of the Law of the Sea Convention (LOSC) in subject-based chapters. An important subject is the matter of boundaries at sea. The development of, and interaction between, the territorial seas, contiguous zones, exclusive economic zones, continental shelf and high seas is thoroughly explored. The text has interesting observations on the influence of rising sea levels on the identification of baselines. It also covers the rights of a coastal state within a particular zone including the use of installations and artificial islands at sea. Prior to LOSC there was uncertainty on baseline calculations for archipelagic states. Many of these states are home to busy sea lanes and some, including Indonesia, Papua New Guinea, Fiji and the Solomon Islands, are close to Australia geographically. Articles 46 and 47 of LOSC remove the uncertainty. However, as pointed out by the International Court of Justice (ICJ) in Qatar v Bahrain [2001] ICJ Rep 40, the relevant provisions can only be invoked after a state has declared itself to be an archipelagic state for the purposes of LOSC. The LOSC created new institutions tasked with implementing various parts of the Convention. The International Seabed Authority (ISA), headquartered in Jamaica, has had an important operational role in commercial seabed mining. The Commission on the Limits of the Continental Shelf (CLCS), operating from New York, has been important in recommending the outer limits of the continental shelf of coastal states. Lawyers may be particularly interested in the International Tribunal for the Law of the Sea (ITLOS), located in Hamburg, which has developed a distinctive jurisprudence – to date 15 cases have been brought before the tribunal. Signatory states elect methods of dispute settlement, usually in order of preference from arbitration, ITLOS or ICJ. The text also explores the rights of landlocked states as well as the important commercial and strategic question of the right of innocent passage to vessels at sea. Enforcement powers at sea are carefully considered, as is the limitation on the rights of coastal states to enforce their respective laws. The tables of treaties and cases, the comprehensive index, and the detailed contents pages are impressive. This second edition is scholarly yet accessible and very readable; thoroughly recommended. Cahal Fairfield, barrister Sir Frederick Darley J M Bennett, Sir Frederick Darley: Sixth Chief Justice of New South Wales, The Federation Press, 2016, hb $65 When William Stawell observed 40 hats on the Munster circuit and not enough work for 20, he decided to emigrate. The subject of J M Bennett’s latest judicial biography was another “economic immigrant”. Bennett has specialised in the topic of “Lives of the Australian Chief Justices”, and this is the seventeenth in the series. He tells the extraordinary story about the process of appointing a Chief Justice of New South Wales in November 1886. Within the space of 12 days no less than five people were offered the position. One of those was Darley who initially rejected the offer but was later prevailed on to accept. Another was Julian Salomons, to whom Bennett devotes the largest chapter of this book. Salomons had an acute sense of humour. When Billy Hughes told him that Sir Samuel Griffith had given him a copy of his translation of Dante’s Divine Comedy, Salomons replied that he too had received a copy of the book. He had asked Griffith to inscribe his name on the fly leaf, with a line showing that he had given it to Salomons, “because, as I told him, I should not like anyone to think that I had borrowed the book, nor should I like anyone to think that I had bought it”. Darley became such a successful “economic immigrant” that he was reluctant to sacrifice his large earnings as a barrister for the salary of Chief Justice. (The book contains a cartoon from Bulletin showing Darley about to enter the court, carrying a huge bag labelled “Income 7000 pounds per year”, being met by an attendant who warns him “If you go in there you’ll have to leave at least half of that bundle behind”.) But eventually, after several of his colleagues declined the offer, he was persuaded to accept. He was to prove just as reluctant to give up the office in the early twentieth century. This book is a worthy addition to J M Bennett’s extraordinary collection of judicial portraits. It reflects an unusual capacity for detailed research. Graham Fricke, retired County Court judge

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