“It is a characteristic of common law jurisdictions that there are perennial debates on judicial activism.  These discussions usually take place in the context of public law but a cogent argument can be made for this debate to be engaged regarding the law of business and finance”.

 

The 2018 Bapsybanoo Marchioness of Winchester Lecture was given by Chief Justice Geoffrey Ma of the Hong Kong Court of Final Appeal on Wednesday 7 November in the Law Faculty. The lecture was the first in a series, The common law and finance: perspectives from the bench, in which senior judges from various common law jurisdictions reflect on the role of the judge in the regulation of commerce and finance.

In a wide-ranging and scholarly lecture, Ma CJ set out a series of features of common law systems that enabled such systems to provide “practical and principled” guidance to markets, including the reasoned judgment, the doctrine of precedent, and the ability of courts to draw on the law of other jurisdictions (including but not confined to that of other common law jurisdictions). The thesis was developed by reference to a number of case studies, including a fascinating treatment of the development of the assumption of responsibility concept in the award of damages for breach. Further important points were drawn out in the Q&A following the lecture, including in relation to the impact of arbitration on the ability of common law systems to continue to adapt to meet the exigencies of commerce.

A recording of the lecture is available here. The text will also appear in published form in 2019.

The lecture series is generously sponsored by Bapsybanoo Marchioness of Winchester Trust, the Travers Smith Fund, and the Commercial Law Centre, Harris Manchester College, Oxford.