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On The Recent Developments In The Law Of Penalties

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UWA Law School Online CPD Series: On The Recent Developments In The Law Of Penalties - Dr Nicholas A Tiverios

About this Event

It is a longstanding and common drafting technique for contracts (and other forms of agreement) to contain an agreed remedy clause which one party (A) can enforce against the other (B) in the event that B fails to fulfil his side of the bargain. The task of English and Australian courts has been to decide what should happen when A invokes the clause on B’s default. Like the confident merchant Antonio in Shakespeare’s The Merchant of Venice, B may never have considered this a likely possibility. Furthermore, if A does invoke the clause, this may result in dire financial consequences for B. It has been the task of the penalties doctrine (and its progenitor rules) to govern and restrict the enforcement of agreed remedies for over six centuries. Yet although the penalties doctrine is a rule of great antiquity, the law in this area has been dynamic: the doctrine has passed through many iterations in the course of its history and it is still evolving. Between 2012 and 2016, the legal principles preventing a contracting party from enforcing a penal agreed remedy clause were reformed once again in a series of decisions of the highest courts of the United Kingdom and Australia. These decisions have caused the English and Australian law of penalties to diverge in significant ways. The purpose of this presentation is to provide commercial practitioners with an update on these recent developments in the law of penalties.

CPD Value: 1 CPD point in Competency Area 4: Substantive Law

About the presenter

Nicholas is a Senior Lecturer in Law at the University of Western Australia. He also teaches the Advanced Contract Law course at the University of New South Wales. He previously worked as the High Court of Australia’s Legal Research Officer and practised as a solicitor in Melbourne. Nicholas was also a Teaching Fellow at University College London where he completed his PhD as the inaugural Peter Birks Memorial Scholar. He holds a Master of Laws (Dist) from University College London (where he was ranked first in his year and studied on the Sir John Salmond Scholarship) and a Bachelor of Laws (Hons I) from the University of Western Australia. He publishes and teaches in the areas of contract law, equity, remedies, unjust enrichment, legal history and jurisprudence.

His monograph Contractual Penalties in Australia and the United Kingdom - History, Theory and Practice (foreword by the Hon Justice James Edelman) was published by The Federation Press in October 2019.

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