With the evolution of medical technology, surrogacy has become a favorable alternative for couples to create a family. Yet, section 17 of the Human Reproductive Technology Ordinance (Cap 561) prohibits commercial surrogacy in Hong Kong (HK), prompting many couples to seek paid surrogacy arrangements overseas. This practice creates complexities upon their return to HK with their surrogate-born child. Two significant cases, FH v WB and CS v SW involve cross-border commercial surrogacy arrangements where commissioning parents pursued parental orders under section 12 of the Parent Child Ordinance (Cap 429) to acquire legal parenthood. Although the time limit for the application had expired and unreasonable surrogate expenses were incurred, amounting to breaches, the Court of First Instance (CFI) adopted a lenient attitude and granted a parental order in both cases, prioritizing the welfare principle. This note will first go through the HK legislation and these two decisions, then compare the CFI's reasoning and policy considerations. The CFI faces challenges in reconciling the legislation and its precedents, resulting in legal gaps that indirectly allow commercial international surrogacy arrangements. The discussion will also delve in to potential solutions to effectively regulate commercial surrogacy, such as local legislative reforms or adopting international conventions.
This article critically evaluates the Spectrum Approach as applied in the appellate review of findings of foreign law. The Spectrum Approach posits that the degree of deference to trial judges’ determinations of foreign law depends on the analogousness of the foreign legal system to the domestic legal system, situating cases on a spectrum between questions of fact (for dissimilar systems) and questions of law (for closely aligned systems). While the Spectrum Approach attempts to offer a structured framework, this article identifies four key deficiencies with the Approach: (1) over-emphasis on the common–civil law dichotomy, (2) circularity in assessing ‘similarity’ between legal systems, (3) artificial separation in the ascertainment and application of foreign law, and (4) indeterminacy for cases occupying the middle of the spectrum. This article argues that the Spectrum Approach involves unnecessary inconsistencies and complexities, which the Privy Council did not adequately address in its decision of Perry v Lopag Trust Reg . This article advocates for a flexible, context-sensitive adjudication without any rigid categorisation or sequential reasoning, ensuring consistency with principles of judicial restraint and fairness. This debate has important implications on the treatment of foreign law in domestic courts amid increasing cross-border litigation.
This article revisits the foundations of proprietary estoppel under the Indian Transfer of Property Act, 1882 (TPA), by examining Sections 41, 43, and 53A. It argues that the prevailing interpretation of these codified forms remains unduly tethered to contract law. The article advances two core claims. First, it distinguishes between contractual invalidity – where an agreement is void under the Indian Contract Act, 1872 (ICA); and proprietary invalidity – where the interest itself is incapable of transfer under the TPA. Preserving this distinction, it is argued, is essential to maintaining the doctrinal coherence and function of proprietary estoppel in Indian property law. Second, the article reconceptualises proprietary estoppel under the TPA as generating substantive secondary rights, independent of contractual enforceability. Taken together, these claims position proprietary estoppel not as a contractual adjunct but as a distinct mechanism for the creation of proprietary interests within Indian law.
This article critically examines the judicial approach to granting parental orders following surrogacy under s 54 Human Fertilisation and Embryology Act 2008 in England and Wales. Whilst the child's welfare is the court's paramount consideration, the statutory requirements of s 54 can, at times, conflict with this principle. Through a systematic review of the case law, this article explores how courts have navigated the tension between fulfilling statutory obligations and guaranteeing the lifelong welfare of the child. It reveals that certain s 54 criteria – such as time limits, the home requirement, and restrictions on payments – have been interpreted flexibly to prioritise welfare, whilst others – including the genetic link requirement and surrogate's consent – remain rigidly applied, occasionally to the detriment of the child's welfare. The analysis highlights the doctrinal and legal incoherence that arises when courts are forced to reconcile competing statutory duties. This tension must be recognised and reflected in any reform of the law. The findings offer valuable insights for jurisdictions considering surrogacy regulation and underscore the need for a coherent legal framework that enables courts to make welfare-driven decisions without statutory compromise.
The rapid advancement of artificial intelligence (AI) is transforming global industries, yet its adoption in developing economies raises urgent questions about fairness, transparency, accountability, and legal oversight. This multidisciplinary empirical study examines the regulatory challenges of AI adoption in Bangladesh's Ready-Made Garment (RMG) sector, a labour-intensive industry central to national economic growth. Drawing on stakeholder insights, the research highlights key concerns relating to fairness and transparency, accountability and liability, privacy and data protection, risk regulation, and the critical need for education and awareness. The findings expose significant gaps in sector-specific governance and institutional readiness. In response, the study proposes a seven-step process to guide the development of effective and context-sensitive regulatory frameworks. While focused on Bangladesh, the recommendations offer broader relevance to other common law countries such as India and Malaysia. This article contributes to building a more inclusive, ethical, and enforceable foundation for AI governance in emerging economies.
Trump's foreign policy is characterised by coercive threats to further the America First agenda. This has had a cascading effect on the fundamental principles of international law. The recent move of the Trump administration to withdraw from a slew of multilateral institutions and treaties is a manifestation of this agenda. The move comes in the backdrop of the February 2025 Executive Order 14199 (EO) calling for ‘a review of all international intergovernmental organisations of which the United States is a member and provides any type of funding or other support, and all conventions and treaties to which the United States is a party’. The U.S. administration considers these international instruments as ineffective, wasteful and harmful. EO 14199 further keeps open the possibility of reviewing and withdrawing from additional international organisations. The U.S. withdrawal from these multilateral instruments is indicative of how these organisations have become a stumbling block to the enforcement of its domestic policies. Hence, withdrawal from these organisations, according to the Trump administration, becomes a convenient choice. Professor Jean Galbraith views the withdrawal as a retreat from multilateralism. This opinion discusses the withdrawal procedure under the constitutive treaty establishing these organisations and the need for interpretive reassessment.
This article examines the complex legal and social implications surrounding the unilateral conversion of minors to Islam in Malaysia, a multi-ethnic and multi-religious nation. It highlights the significant controversy arising from such conversions without the consent of one parent, which often leads to parental child abduction and deepens existing tensions within families and communities. Amidst the jurisdictional conflicts between Civil and Syariah Courts, particularly in light of the Federal Court's ruling in Indira Gandhi v Pengarah Jabatan Agama Islam Perak & Or, the article evaluates the potential for the best interest of the child principle, as articulated in Article 3 of the Convention on the Rights of the Child, to bridge legal discrepancies and protect children's welfare. Through a detailed analysis of domestic legislation and relevant case law, the article underscores the necessity for legal reforms, including aligning State Islamic laws with constitutional mandates and enhancing the enforcement of custody orders across jurisdictions. It also calls for increased collaboration amongst judicial, academic and civil stakeholders to ensure the protection of children caught in these disputes, advocating for a holistic approach that prioritizes their best interests in a pluralistic society.
In the main, the Commonwealth Caribbean Constitutions, drafted in the post-colonial 1960s–1970s periods reflect an imposed colonial antecedents and institutional architecture of the British Westminster system of government because of the lack of a deliberate decolonial process and design of Constitutionalism by post-colonial Caribbean leaders, and their British drafting counterparts. Central to this is the inheritance of an ‘ impartial and neutral civil service’ , that is, civil servants hired to implement the government agenda irrespective of the varying changes in the partisan political officials within the country, established by the Public Service Commissions (PSCs) which are responsible for the hiring, firing, disciplining and general management of public servants. It was thus established to inter alia , shield public servants from undue influence of politicians, ensure policy neutrality, minimize political patronage, remove partisan politics from public administration while establishing merit-based appointments that ensure neutral competence to fulfil the work of the government expertly, and according to explicit, objective standards rather than to personal or party or other obligations and loyalties. Complimentarily, the Civil Service Orders (CSOs) were also introduced to maintain the independence and impartiality of the public service. It strives to ensure that civil servants can exercise independent, impartial and neutral advice and implementation of their work programme to politicians and the wider public. Of most importance to this research though, is that it provides for the prohibition of public servants from engaging in political and partisan activities. However, the CSO has been judicially challenged by civil servants in the Commonwealth Caribbean, with the courts from the 1980s, holding that it infringes on the fundamental Constitution rights and freedoms, such as, but not limited to, freedom of expression, association and assembly. Judicial decisions have increasingly adjudged these blanket prohibitions as unconstitutional, as they prohibit all public servants from expressing their constitutionally protected democratic views, perspectives and praxis within their society, and prohibit them from associating actively with political parties, under the freedom of association. The Judiciary has also subtly advocated for a more tiered approach that still balances the rights of public servants with civil service impartiality through permitting political expression for public servants who may be directly removed or distant from the policy-making decisions. This article will therefore undertake an examination of the Commonwealth Caribbean Constitutional and Legislative frameworks that have underpinned the insulation of public servants by tracing their historical evolution and components and thereafter illustrate through the judicial decisions how the CSO contradicts the fundamental rights and freedoms in the Commonwealth Caribbean Constitutions. It will then seek to illustrate and assess some key lessons emanating from these judicial decisions. Finally, it will draw upon and analyse the United Kingdom's tiered approach to propose reforms aimed at achieving a more symmetrical reconciliation between public servants’ neutrality and constitutional freedoms, in light of the Caribbean judiciary continually striking down these CSOs.
This opus discusses the desirability of enforcing agreements made in perpetuity by contracting parties in English law. It uses the case of Zaha Hadid Limited v Zaha Hadid Foundation [2024] EWHC 3325 (Ch) as a central illustration and draws on lessons from French law to suggest possible developments within English law. It ultimately contends that Zaha Hadid was partially wrongly decided and seeks to construct a doctrinal framework opposing the entrenchment of perpetuity in English law, while aligning it more closely with neighbouring jurisdictions, including other common law systems. The paper challenges the traditional dichotomy between objectivity and subjectivity in contractual interpretation and argues for a broader interpretative principle in which construction and implication operate as two sides of the same coin. In doing so, it distinguishes between indefinite and fixed-term agreements and lays the groundwork for contesting perpetuity in modern contracts on the basis of common sense, commercial good sense and logical coherence.
The evenly split verdict on hijab (veil) by the Supreme Court of India has elicited disparate commentary from different quarters. This article explores the judgment from the subjective universe of judges who delivered separate opinions. It considers respective fields of discursivity which animate the legal reasoning of both the judges. While the opinion of Justice Hemant Gupta is soaked in the right leaning upper caste nationalism which instinctively privileges discipline over freedom, Justice Himanshu Dhulia's liberalism fails to consider the imperatives of democratic politics. Justice Dhulia, like most left-liberals, ends up reinforcing minority-majority binary constructed around religion that undergirds upper caste universe of meaning. His liberalism is characteristically accommodative of religious conservatism which operates as a constitutive force for communal politics. Justice Dhulia's opinion proceeds with the assumption of hypothetical trust that exists among homogeneous but neatly divided religious groups. This article demonstrates how such an assumption coupled with neoliberal hegemony fuels the present antidemocratic upsurge across the board.
The second Trump administration has sought through the use of executive orders to fashion significant changes to federal government policies in many areas. While many of those Orders raise no significant constitutional issues, some appear to overstep long-recognised constitutional boundaries. Perhaps the most contentious of the Orders is the Trump administration's attempt to alter understandings of the so-called ‘birthright citizenship’ clause of the Fourteenth Amendment. The Order has widely been regarded as what one federal judge termed ‘blatantly unconstitutional’. This paper suggests that characterisation is overly simplistic, and that a close reading of the (very little) Supreme Court authority on the point would suggest that the current Supreme Court could credibly construe the citizenship clause in a fashion which gives the Trump administration much of the policy outcome which it is seeking, albeit not through the interpretive methodology that one would expect the Court's conservative majority would instinctively wish to use.
Climate litigation is an emerging trend in the Global South. The majority of cases are rights-based, seeking to hold national governments accountable to address climate-related harm. However, Pakistan has initiated proceedings for its first cross-border climate lawsuit against companies situated in the Global North. This development has significant implications within the South Asian context, particularly the shifting trend of climate justice claims.
Over 53 million people in the United States provide unpaid care for individuals of all ages, including the elderly, chronically ill, and/or disabled. Additionally, 5.4 million caregivers are youth under the age of 18. Together, they deliver an estimated $600 billion in unpaid care annually, which is three times the amount Medicaid spends on professional long-term care. Few alternatives exist for families in the private and public sectors; even when options are available, they can often be unaffordable. The situation in the United States reflects a global crisis having business and economic implications. Unpaid adult caregiving frequently disrupts jobs and increases absenteeism, creating a trickle-down effect on caregiving youth who must act as adult substitutes and suffer comparable hardships. The United Kingdom enacted legislation addressing “youth carers,” but implementation has proven largely ineffective. This paper examines global service frameworks and policies addressing caregiving youth, employing a policy analysis research methodology, and proposes regulatory solutions based on insights from international experiences.
The unauthorised use of data in the training of generative AI models presents significant legal challenges, particularly under intellectual property (IP) and privacy laws. These frameworks frequently grapple with the intricate relationship between data ownership and AI innovation, resulting in ongoing debates regarding optimal protection and enforceability. This article delves into considerable potential of unjust enrichment as an alternative legal doctrine for resolving disputes arising from such unauthorised data use. We explore how the concept of unjust enrichment captures the wrongfulness of unauthorised data use in a manner distinct from IP infringement and privacy violations. Furthermore, we analyse the extent to which gain-based restitution for unjust enrichment may prove more advantageous than existing remedies, including legal, equitable, and statutory options. We content that by shifting the emphasis from establishing wrongful conduct to recovering benefits obtained unjustly, unjust enrichment offers a pragmatic and equitable framework that reconciles the rights of data owners with the interests of AI developers.
This case study analyses the Allahabad High Court judgement in the case of Akash and 2 Others v State of U.P. (2025) by Justice Mishra, who observed that grabbing a minor girl's breasts and breaking her pyjama string does not constitute an attempt to rape but rather a preparation. The case study scrutinises Justice Mishra's emphasis on the distinction between preparation and attempt. The study underlines the debate and criticism surrounding the verdict, including the Supreme Court's observation that such a High Court verdict is insensitive, underscoring the differing interpretations of what constitutes attempted rape, especially against minors.
Although human remains have long been regarded as worthy of legal protection, they are increasingly treated as commodities. The trade in human remains via the internet, their display within religious institutions such as the Roman Catholic Church, and their use in commercial plastination exhibitions illustrate distinct forms of commodification. The manuscript aims to examine the commodification of human remains through a comparative legal analysis across common law and civil law jurisdictions. It explores public policy and contract law in relation to these practices. The study also examines how various legal traditions—particularly in Europe and the United States—address these issues and explores the potential role of the res extra commercium doctrine in regulating dealings with human remains. There are a number of key findings in this article. The regulation of human remains varies significantly, with some jurisdictions explicitly prohibiting trade, while others rely on public policy to void such transactions. The Human Tissue Act of England, Wales, and Northern Ireland bans public display without a license but exempts religious relics. Public policy plays a crucial role due to ethical concerns and considerations of human dignity. Legal protections are stronger for newly deceased human remains, while the long-dead face less scrutiny, creating regulatory inconsistencies. Commercial exhibitions like Body Worlds lack explicit consent from the deceased. At the same time, relics in the Roman Catholic Church hold economic significance, suggesting a form of commodification that courts and policymakers largely overlook. As final observations, this study argues that human remains should be treated as res extra commercium to prevent their trade and commercialization. In the absence of clear statutory prohibitions, courts should refuse to enforce contracts involving human remains based on public policy concerns. The European Convention on Human Rights may shape future regulations. Persistent legal uncertainty allows commodification to continue, underscoring the need for more vigorous enforcement and policy reforms. By examining legal inconsistencies and the role of public policy, this paper contributes to a more coherent and ethically sound legal framework.
The Singapore Court of Appeal held a law prohibiting male–male sexual intercourse (s 377A of the Penal Code) unenforceable on non-rights-based grounds. The court's remarks about the rights to life and liberty (including whether sexual orientation is mutable), freedom of expression, and equality are obiter . But they are significant, since in Singapore, there are few constitutional rights cases and the courts focus on spelling out the limits to executive and legislative power without necessarily striking down exercises of such power on rights grounds. Indeed, the obiter dicta prompted the Legislature to repeal s 377A. Given the repeal, the obiter dicta about constitutional rights have receded into the background of public discourse. This article refocuses attention on these dicta , unpacking them in their constitutional, sub-constitutional, and societal context and critically analysing their implications, and presenting them as a case study about the role of obiter dicta in rights adjudication generally.
Electronic signatures have revolutionised the way agreements are executed, offering increased convenience and efficiency in various industries. However, their integration into US state election codes remains a point of contention. While legal frameworks such as the Uniform Electronic Transactions Act (UETA) and the Electronic Signatures in Global and National Commerce Act (E-SIGN) support the legitimacy of electronic signatures, equating them with traditional handwritten ones, many state laws impose exceptions or additional requirements specific to election codes. These challenges arise from the need to balance technological progress with the integrity and trust that handwritten signatures have historically symbolised in electoral processes. This article delves into these issues, analysing key court cases that address the tension between embracing innovation and preserving the principles of election security and authenticity. It highlights the role of judicial decisions in shaping the legal landscape for electronic signatures in voting. Ultimately, the article concludes by reaffirming the significance of UETA in legitimising electronic signatures, while acknowledging the enduring role of handwritten signatures as a trusted and symbolic safeguard of democratic processes.
This case note reflects on the recent Court of Appeal's decision in Tousi v Gadydukova [2024] ECWA Civ 203 which focused on transferring a joint tenancy under sections 53, 62(1), and schedule 7 of the Family Law Act (FLA) 1996. It interrogated if the parties to a “void” marriage were included in the definition of “cohabitants” in paragraph 3 of the FLA 1996, or if paragraph 2 would apply to them instead. Hence, this case note explores the facts in Tousi 's case, the court's decision, and its implications on the transfer of tenancy under the FLA, housing, and property rights in England and Wales.
