This thesis examines creditors' use of the oppression remedy under the Canada Business Corporations Act and its provincial equivalents from historical and critical perspectives, assesses the consequences of the increasing willingness of Canadian courts to make the remedy available to creditors and concludes by offering some solutions to the problems that are identified. Part I traces the historical development of the oppression remedy, first in the United Kingdom and then in common law Canada. Next, the current state of the law relating to the oppression remedy is briefly examined, followed by a review of recent developments with respect to the use of the oppression remedy by creditors. Part II is a critical review of the evolving law with respect to creditors' use of the oppression remedy. This part of the thesis focuses on: (i) the relationship and potential conflict between the oppression remedy and other available remedies; and (ii) the impact of creditors' uses of the oppression remedy on the relationship between the corporation and its other stakeholders, including issues of shareholders' and directors' liability. In Part III, it is argued that the present use of the oppression remedy by creditors is not being developed in a coherent and principled manner. Certain guidelines are offered to provide the courts with reasonable controls on and principles to guide the use of the oppression remedy by creditors. In particular, it is argued that the oppression remedy should not be available to creditors when there are, either under corporate legislation or other, general legislation, appropriate remedies already available. The result would be that the oppression remedy should be available to creditors only in the limited category of cases where the creditor has no other effective remedy and the conditions for the use of the oppression remedy are met.

<p>Judicial remedies are, amongst others, a vehicle through which respect, protection, promotion and fulfilment of human rights can be delivered to those who need them. A remedy is the perspective from which litigants judge either the success or failure of judicial decisions. Judicial remedies make the rights whole, they complete the justiciability of human rights because without them human rights remain statements of legal rhetoric. The nature of the remedies that the courts grant is not only based on the normative nature of the rights they seek to enforce. They are also influenced by factors such as the goals and objectives of judicial remedies as defined, amongst others, by the ethos of either corrective or distributive forms of justice. This thesis explored these factors and their impact on judicial remedies. Stress is put on the impact of the separation of powers doctrine, institutional competence concerns and on the forms of justice pursued by courts. The study is based on the judicial enforcement of the socio-economic rights protected in the South African 1996 Constitution. The research undertaken here was intended to guide scholars, legal practitioners and judicial officers who confront socio-economic rights issues as part of their daily work.</p>

The Social Security Act 1991 incorporates the general legal meaning of property in its definition of an asset, for the purpose of the pension means test. This creates the opportunity for pension applicants to argue that assessable assets held by them should be reduced by the amount of any equitable proprietry rights held by others in the assets. The Federal Court has held in Kintominas v Secretary, DSS and in Kidner v Secretary, DSS that equitable proprietry claims under remedial doctrines, such as under the constructive trust doctrine discussed in Baumgartner v Baumgartner are to be regarded as property even though there has been no judicial declaration of their existence, no dispute between the legal owner and the person claiming an equitabe interest, an no unconscionable abuse of title rights by the legal owner. This thesis argues that the Federal Court’s approach is not the preferable one, for three main reasons. The first relates to the changing nature of the constructive trust to a necessary element. The second is that, at a time when the constructive trust in Australia is in transition from the traditional institutional conception to a remedial paradigm along North American lines, the beneficial interest should no longer be viewed as existing independently of a judicial decree. The third argument is that, even if an equitable interest under a remedial constructive trust is accepted as existing independently of a curial declaration, it cannot be valued for the purposes of the assets test.

Zugleich: Diss. Dresden, 2007. / Literaturverz.

Written for the Institute of Comparative Law. Title from title page of PDF (viewed 2010/04/28). Includes bibliographical references.

The Commercial Court in London is frequently dealing with applications for a freezing injunction. The vast majority of academic literature and court decisions directly or indirectly adopt the view that freezing injunctions have stood the test of time and are so frequently granted in commercial litigation that there is no need for any serious concern about their scope, let alone the need to identify and question the legitimacy of the justifications for their existence. Contrary to the traditional view, this thesis has identified equipage equality as the primary function of freezing injunctions. This recognition that freezing injunctions seek to establish a level-playing field in litigation has led the author to conclude that the current scope of the relief is excessively claimant-friendly and involves illegitimate interference with the sovereignty of foreign states. Taking into account the tactical reasons for seeking a freezing injunction, the author challenges the current interpretation of the substantive preconditions for granting the relief. Their current interpretation does not strike a fair balance between the interests of the parties. The author argues that these concerns are exacerbated by the current international scope of freezing injunctions due to the insufficient regard for the principles of public international law. The encroachment on the jurisdiction of foreign states undermines equipage equality by enabling claimants to make multiple applications for interim relief in respect of the same assets. In the light of the above, the author has sought to make a range of proposals to restrict the scope of freezing injunctions with the aim of bringing the relief in line with equipage equality.

Submitted by Socorro Pontes (socorrop@ufersa.edu.br) on 2017-05-12T12:16:29Z No. of bitstreams: 1 ThiagoGC_DISSERT.pdf: 3396774 bytes, checksum: f3817a3af241b189448e74cd442634c0 (MD5) / Made available in DSpace on 2017-05-12T12:16:30Z (GMT). No. of bitstreams: 1 ThiagoGC_DISSERT.pdf: 3396774 bytes, checksum: f3817a3af241b189448e74cd442634c0 (MD5) Previous issue date: 2016-11-30 / The jiboias (Boa constrictor) are tropical snakes that can present an average length of 3.5 m, occupying most of the Brazilian biomes. It is one of the most common snake species found in zoological collections in Brazil, being used as a tool for environmental and leisure education. The maintenance of these animals in captivity, associated with management errors, predisposes to the appearance of cutaneous lesions that, if not treated, can compromise the health and / or quality of life of these animals. Thus, the importance of identifying and developing the best agents for healing is hoped that they will be preferentially accessible and inexpensive, like some herbal medicines. This study followed the cicatrization of aloe vera, EB1 and EB2, gel and total leaf, respectively, in 12 jiboias (Boa constrictor), by means of macroscopic daily evaluations, for 40 consecutive days. Appearance of the wound in terms of color, gloss, crust formation and exudation. The obtained data evidenced differences in relation to the control group, demonstrating the effect of this phytotherapic on the cicatrisation / As jiboias (Boa constrictor) são serpentes tropicais que podem apresentar um comprimento médio de 3,5 m, ocupando a maioria dos biomas brasileiros. É uma das espécies de serpentes mais encontradas em coleções de zoológicos no Brasil, sendo utilizada como ferramenta de educação ambiental e lazer. A manutenção desses animais em cativeiro, associado a erros de manejo, predispõe ao aparecimento de lesões cutâneas que, se não forem tratadas, podem comprometer a saúde e/ou a qualidade de vida desses animais. Destaca-se assim, a importância de identificar e desenvolver os melhores agentes promotores da cicatrização, esperando que eles sejam preferencialmente de fácil acesso e baixo custo, como alguns fitoterápicos. Diante disso, este estudo acompanhou o efeito cicatrizante de extratos hidroalcóolicos da babosa (Aloe vera), EB1 e EB2, gel e folha total respectivamente, em 12 jiboias (Boa constrictor), através de avaliações macroscópicas diárias, durante 40 dias consecutivos, quanto ao aspecto da ferida em termos de cor, brilho, formação de crosta e exsudação, além de análises histológicas a cada 5 dias. Os dados obtidos evidenciaram diferenças em relação ao grupo controle, demostrando o efeito desse fitoterápico sobre a cicatrização / 2017-05-12

This study is of two remedies that are available in South African law: orders of restitutio in integrum, and specific performance. The study demonstrates that, by treating these remedies as legal topics in their own right, a greater understanding emerges of their inherent characteristics, the role that they play in the law, and of the particular circumstances in which these remedies are available. An order of restitutio in integrum performs an important and unique function in South African law. The fundamental realisation is that it is a remedy in terms of which the courts exercise an extraordinary and discretionary power, and nullify ab initio legal transactions, or the legal consequences of events, which were previously perfectly valid and enforceable at law. Because of the extraordinary nature of this remedy, the circumstances in which it is available are limited by the requirement that iusta causa must exist to justify nullification. Further, before the remedy is available, the person seeking relief must have suffered loss or prejudice as a result of the event complained of. Finally, a mutual restoration of benefits received by the persons involved is required. The nature and effect of orders of restitutio in integrum, and the essential elements which determine the availability of the remedy, enable it to be distinguished from, and contrasted with, other remedies in South African law. An order of specific performance is available in South African law, at the option of a plaintiff, to enforce the actual performance of contractual undertakings. The remedy is appropriate to enforce positive undertakings, as well as acts of restraint. For the remedy to be available, it is firstly necessary that a contractual obligation be proved to exist. Secondly, performance of that obligation must be due. Thirdly, the performance sought must not in fact have already been rendered. These elements determine the availability of the remedy in particular factual circumstances, such as in cases involving pre-emptive rights. The nature and characteristics of the remedy are determined by principles of South African, and not English law. The remedy is available as of right in South African law, but subject to a discretionary power of a court to refuse to order specific performance. / KMBT_363 / Adobe Acrobat 9.53 Paper Capture Plug-in

Quantification of damages for loss of amenities of life is a difficult task because there is no connection between enjoyment of life and money. The court however has to compensate the plaintiff with money because that is the only way of restitution. In compensating the plaintiff the court will award a conservative amount which is fair to both parties. The court will take into account previous awards in comparable cases but the personal circumstances of the plaintiff will form the background of the assessment. The intensity and duration of the loss of amenities of life, the plaintiff's contributory negligence, his obligation to mitigate his loss, his ability to cope with his loss and patrimonial damages tending to minimize the loss of amenities of life are all factors to be taken into account in the quantification process. / Die kwantifisering van die vergoeding vir die verlies aan lewensgenietinge is 'n moeilike taak aangesien daar geen verband tussen lewensgeluk and geld is nie. Die hof moet egter die eiser vergoed met 'n som geld aangesien dit die enigste manier van restitusie is. By kwantifisering word die doel van die vergoedingsbedrag asook billikheid en regverdigheid in gedagte gehou. Die hof sal eerder konserwatief as wispelturig te werk gaan by kwantifisering. Verder sal daar na vorige toekennings in vergelykbare gevalle gekyk word, maar uiteindelik sal die omvang van die vergoedingsbedrag bepaal word deur die persoonlike omstandighede van die eiser wat die agtergrond van die kwantifiseringsproses sal vorm. Die tydsduur en intensiteit van die verlies aan lewensgenietinge, die eiser se bydraende nalatigheid, sy verpligting om skade te beperk, sy vermoe om sy verlies te verwerk asook toekennings van 'n vermoensregtelike aard is relevant by kwantifisering. / Mercantile Law / LL.M.

In terms of the works contracts as a general rule the target prices between the parties are immutable. However, in the execution of the contracts for works might well emerge unforeseeable events, which would produce costs to the contractor. To these events, what actions the parties migth take? What kind of remedies does the Peruvian Civil Code offer?. In this article, the autor analizes these issues and proposes solutions to these unforeseeable risks, all on the basis of Peruvian Civil Code and a comparative study with Italian Civil Code. / En materia de los contratos de obra por regla general los precios fijados entre las partes son inalterables. Sin embargo, en las labores del contrato de obra podrían surgir sucesos imprevisibles, que producirían nuevos gastos para el contratista. Ante estos sucesos, ¿Qué acciones podrían realizar las partes? ¿Qué tipo de remedios ofrece el Código Civil peruano?.En este artículo, el autor analiza estos temas y propone soluciones ante estos riesgos imprevisibles, todo ello sobre la base del Código Civil peruano y un estudio comparado con el Código Civil italiano.