Senior Lecturer in Commercial Law

LLB, DipLP, Solicitor, NP
View my full research profile

  • Tel: +44 (0)131 650 2068
  • Email: david.cabrelli@ed.ac.uk
  • Office and Feedback Hours for current students:
    Wednesdays, 10am to 1pm

Biography

David Cabrelli joined the School of Law in June 2007 having lectured at the University of Dundee for four years. Prior to being appointed a lecturer, David practised commercial law and corporate law for six years. David's teaching and research interests lie in the fields of commercial law, labour law/employment  law, company law and private law. David Cabrelli has published papers in a number of academic and practitioner journals in the field of commercial law, together with a book on the Scots law of commercial agreements and student textbooks on employment law (now in its second edition) and Scots commercial law.

One of David’s employment law articles was cited with approval by Lords Hope, Wilson and Sumption in the UK Supreme Court in Société Générale (London Branch) v Geys [2012] UKSC 63; [2013] 1 AC 523 and various other articles published by David have been cited by the Federal Court of Australia, The Supreme Court of South Australia, the Hong Kong High Court, the Law Commission of England and Wales and the Scottish Law Commission.

Ph.D. supervision interests
Corporate Law, Comparative Corporate Law, Labour Law, Employment Law, Comparative Labour Law, EU Labour Law, UK Equality Law, EU Equality Law

Research Interests

David's research interests in the field of labour and employment law include:

(1)    An analysis of the method by which UK Labour law applies differing behavioural standards in the workplace and explanations and justifications for such diverse standards. In addition, David is interested in the role played by standards of review in the field of labour law;

(2) An analysis of the existence and role of implied terms in law in the context of contracts for the personal performance of work that are not employment contracts; and

(3)    A series of joint research papers on the significance of the concept of ‘domination’ within contemporary political and social philosophy to the area of labour law. There is a compelling argument that the civic republican political philosophy of ‘non-domination as social justice’ espoused by scholars such as Pettit and Lovett can be applied to justify and explain a great number of labour laws. As such, the purpose of this research is to evaluate whether this concept of ‘domination’ is descriptively and normatively useful from a labour/employment law perspective and whether it can act as a general justificatory foundation for labour law or as a basis on which specific labour laws can be premised.

In the field of company law, in conjunction with Prof. Mathias Siems of the University of Durham, David is in the process of publishing a second edition of a book with Hart Publishing, namely Comparative Company Law: A Case-Based Approach. The project involves the co-ordination of company law scholars from various jurisdictions. An examination of specific hypothetical cases in company law will be conducted, together with an assessment of how 12 different jurisdictions would treat each of these cases. For example, topics related to directors’ liability and shareholder duties will be analysed in order to understand how hypothetical cases would be solved in different countries. The general aim of the project is to identify whether conceptual differences between countries exist and whether formal or functional convergence in the field of company law is likely or unlikely to materialize. The project also has a public policy dimension since the existence or absence of differences between jurisdictions matters for the question of whether formal harmonisation of company law in the EU, or further afield, is necessary.

David retains links with the legal profession and is heavily involved in the provision of training and continuing professional development seminars, mainly through the Edinburgh Law Review Update Series.

David is also an assistant editor of the Edinburgh Law Review.

David is a key member of the team which delivers courses under the auspices of Commercial Law LLM at the University of Edinburgh. He is a former Programme Director for the Commercial Law LLM at the University of Edinburgh. The Commercial Law LLM offers a number of specialised Commercial Law courses and further details are available at http://www.law.ed.ac.uk/pg/taught/llmcommerciallaw.aspx Moreover, David is an Associate Director of the Edinburgh Centre for Commercial Law, on which, please see http://www.law.ed.ac.uk/centreforcommerciallaw/

David is very happy to receive enquiries from potential PhD students, or other academic visitors, working broadly within the fields in which he has expertise. In particular, David would draw the following pages to the attention of visiting scholars - http://www.law.ed.ac.uk/visitors/

Websites

Mr David Cabrelli's Homepage at Edinburgh Law School

Qualifications

LLB, DiP LP, Solicitor (Scotland & Non-practising)

Courses Taught

European Labour Law (LLM) (Course Organiser)

Principles of Insurance Law (LLM) (Course Organiser)

Business Law (Ordinary)

Contract (Honours)

EU and UK Equality Law (Honours) (Course Organiser)

Labour Law (Honours) (Course Organiser)

The Law of Fiduciary Duties (Honours)

PhD Supervisees

Katarzyna Chalaczkiewicz-Ladna  'The relevance of the long-term interests in the decision making processes of company directors in the UK, Delaware and Germany: a critical evaluation'

Shunyu Chi  'An Evaluation of the Transplantation of Takeover Rules from U.K. and U.S. from the Prospective of China'

Yvonne Enoch  'The complex pre-contractual role of the intermediary in Insurance Contract Law: The way forward'

Anindita Jaiswal  'Women Directors on Board:The Regulatory Roadmap for India'

Lorna MacFarlane  'Exceptions to the privity doctrine in Scots contract law'

Thomas Rigg  'Enlightened Shareholder Value in the Face of the Theory of the Firm'

Books and Reports

David Cabrelli, Law Express: Employment Law, (Pearson, 2016)
Abstract: Revision Guide on Employment Law for students

David Cabrelli, Employment Law in Context: Text and Materials, (Oxford University Press, 2016)
Abstract: Textbook examining Employment Law from a contextual perspective, which uses a running case study and is designed to engage students with academic and policy debates.

David Cabrelli, Employment Law in Context: Text and Materials, (Oxford University Press, 2014)

David Cabrelli, Mathias Siems, Comparative Company Law: A Case-Based Approach, (Hart Publishing, 2013)
Abstract: This project involves nine co-authors, with David Cabrelli and Professor Mathias Siems of UEA, Norwich Law School acting as co-editors. The project entails an examination of specific hypothetical cases in company law and how 10 different jurisdictions would treat each of these cases. For example, topics related to directors’ liability and shareholder duties will be analysed in order to understand how hypothetical cases would be solved in different countries. The general aim of the project is to identify whether conceptual differences between countries exist and whether formal or functional convergence in the field of company law is likely or unlikely to materialize. The project also has a public policy dimension since the existence or absence of differences between jurisdictions matters for the question of whether formal harmonisation of company law in the EU, or further afield, is necessary.

David Cabrelli, Employment Law, (Pearson, 2012)

Gillian Black, David Cabrelli, Martin Hogg, Laura Macgregor, Contract Law Update, 2010-2012, (Trinity Law, 2012)
Abstract: This is the second edition of 'Contract Law Update', a text aimed at providing summaries and analysis of major contract cases from Scottish and English law. The cases discussed include coverage of: - Pre-contractual liability - Formation of contract - Incorporation of terms - Contractual interpretation - Implication of terms - Unfair terms - Remedies for breach of contract - Contract and unilateral promise - Contract and unjustified enrichment - The contract of agency The work will be of valuable assistance to both practitioners and law students.

David Cabrelli, Commercial Law Essentials, (Dundee University Press, 2009)
Abstract: A study guide on commercial law for LLB students, including treatment of the law of diligence, insurance, sale of goods, agency, hire, rights in security, cautionary obligations, negotiable instruments, consumer credit, IP, personal insolvency and commercial disputes resolution.

David Cabrelli, Employment Law, (Pearson Education, 2009)
Abstract: Second Edition of Revision Guide for Students.

David Cabrelli, Employment Law, (Pearson Education, 2007)
Abstract: Revision Guide for Students.

David Cabrelli, Commercial Agreements in Scotland: Law and Practice, (W Green, 2007)
Abstract: This book examines the most common clauses and provisions encountered in commercial contracts drafted in accordance with the law of Scotland. It is a book which is engaged primarily in an interpretative undertaking. For this purpose, it divides the most common clauses found in commercial contracts into two categories, namely 'exchange' provisions and 'relational' provisions.

Articles

David Cabrelli, Rebecca Zahn, 'Theories of domination and Labour Law: An alternative conception for intervention?', (2017), International Journal of Comparative Labour Law and Industrial Relations, Vol 33
Abstract: In previous work, the authors have sought to demonstrate how a particular strand of contemporary political theory can be usefully adopted to shed valuable light on labour law. In short, the conception of ‘non-domination’ grounded in contemporary civic republican political philosophy and associated with scholars such as Frank Lovett prescribes a sophisticated account of a socially just order. In this framework, social justice is secured when laws and policies are introduced to subject private social relationships characterised by dependency and an arbitrary imbalance in social power to a measure of external control. As a subset of a socially just order, the previous work of the authors sought to sketch out how non-domination theory could act as a justification for labour laws. This would conceptualise labour laws as a set of measures that are designed to achieve a degree of ‘non-domination’ in the employment relationship. Labour law achieves this by introducing legal and policy controls limiting the employee’s dependence on his/her employer and restricting the arbitrary power imbalance inherent in the relationship between the employer and the employee. By serving to tone down the level of arbitrary decision-making vested in the employer, the dependency of the employee on the employer, and/or by counterbalancing the degree of power wielded by the employer, it was argued that procedural and substantive labour laws such as unfair dismissal, minimum wage laws, working time controls, and collective labour and trade union rights can be perceived as measures that are consistent with a legal framework designed to secure a degree of ‘non-domination’ of the worker. In this paper, the various advantages of non-domination theory as a justification for labour laws are summarised before the discussion turns to a detailed assessment of the range of objections that can be levelled at such a justificatory framework. In particular, the accusation that it is not descriptively accurate as a model, nor normatively useful as a conception for labour laws, is subjected to greater scrutiny. The article concludes with the general proposition that although Pettit’s and Lovett’s non-domination model is insufficient to act as an abstract justificatory theory for labour laws, it can act as a driver for specific labour laws; and more specifically, for a particular conception or form of labour law that promotes a distinctive set of regulatory techniques, and vision of the role and function of the central notion of the contract of employment. The primary significance of this article rests in the insight that domination-based narratives of civic republicanism have the capacity to act as a bridge between existing individual, relational, autonomous, substantive and procedural accounts of the regulation of the law of the contract of employment and political philosophy: a ‘new normativity’, albeit one that is restricted in scope.

David Cabrelli, Rebecca Zahn, 'Editorial: Theories of domination and Labour Law: A new conception for Legal Intervention?', (2017), International Journal of Comparative Labour Law and Industrial Relations, Vol 33
Abstract: Editorial introducing the special issue exploring domination-based civic republican theory and its relevance for labour law

David Cabrelli, 'Uber e il Concetto Giuridico di "Worker": La prospettiva britannica', (2017), Diritto delle Relazioni Industriali, Vol 27, pp 575-581
Abstract: Examines the decision of the UK Central London Employment Tribunal Decision in Uber BV v Aslam

David Cabrelli, Vernon Valentine Palmer, 'The recovery of non-pecuniary loss in European contract law ', (2017), Edinburgh Law Review, Vol 21, pp 128-129

David Cabrelli, 'The devolution of competence in Equalities Law ', (2016), Edinburgh Law Review, Vol 20, pp 372-376
Abstract: Review of devolution of competence to Scottish Parliament

David Cabrelli, 'Implying terms in law: Belize no more?', (2016), Edinburgh Law Review, Vol 20, pp 338-342

David Cabrelli, 'Liability and remedies for breach of the contract of employment at common law: Some recent developments', (2016), Industrial Law Journal, Vol 45, pp 207-219

David Cabrelli, 'Book Review of The Concept of the Employer (Oxford, OUP, 2015) by Jeremias Prassl ', (2016), Modern Law Review, Vol 79, pp 364-367
Abstract: Reviews a book published by Jeremias Prassl in 2015, namely The Concept of the Employer.

David Cabrelli, Mathias Siems, 'Convergence, Legal Origins, and Transplants in Comparative Corporate Law: A Case-Based and Quantitative Analysis', (2015), American Journal of Comparative Law, Vol 63, pp 109-153
Abstract: In this Article, we intend to fill a gap in the comparative law literature by adopting a case-based approach to comparative corporate law that highlights the important dimension of specific cases in corporate law matters and how identifiable, but limited issues arising from such case disputes are resolved in different jurisdictions. Our study is based on ten cases used in a wider research project and their solutions in ten countries: eight European countries, the United States, and Japan. We assess the solutions to these cases using quantitative methods of network and cluster analysis. We also seek to enquire whether conceptual differences exist between countries in terms of the source, form, style, and substance of the legal rules which comprise their corporate laws. The findings of this assessment are used to evaluate arguments developed in the academic comparative company literature which posit that the existence of fundamental differences in the protection of shareholders across countries reduces the scope for convergence in corporate law systems. The case-based evaluation is also applied to make a contribution towards other influential theories in comparative law, particularly the “legal origins” theorem and the “legal transplants” debate. For example, while we find some evidence of legal transplants, we will show that the notion of legal origins has only limited value in today’s corporate law. Furthermore, the research has a public policy dimension since the existence or absence of differences matters for the question of whether formal harmonization of corporate law in the EU, or further afield, is necessary, desirable, or at all possible.

David Cabrelli, 'The Mutuality and Enforceability of the Employment Contract: Sunrise Brokers LLP v Rodgers', (2015), Edinburgh Law Review, Vol 19, pp 280-284

David Cabrelli, 'The Mutuality of Obligations Doctrine and Termination of the Employment Contract: McNeill v Aberdeen City Council (No 2)', (2014), Edinburgh Law Review, Vol 18, pp 259-65

David Cabrelli, Rebecca Zahn, 'The Elective and Automatic Theories of Termination in the Common Law of the Contract of Employment: Conundrum Resolved?', (2013), Modern Law Review, Vol 76, pp 1106-19
Abstract: If a party to an employment contract commits a repudiatory dismissal or resignation, it has long been unclear whether the other party has the option either to terminate or affirm the contract (the elective theory) or whether the former's breach operates to bring the contract of employment to an end (the automatic theory). The recent decision of the Supreme Court in Société Générale (London Branch) v Geys has finally resolved this question. By a majority, the Supreme Court held that the elective theory also applies in the context of a wrongful repudiation of the employment contract by express dismissal or resignation. This note examines the significance of Geys in the context of the common law of the contract of employment and evaluates whether a number of related issues surrounding the breach and termination of the employment contract have been resolved.

David Cabrelli, Rebecca Zahn, 'The Elective and Automatic Theories of Termination at Common Law: Resolving the Conundrum?', (2012), Industrial Law Journal, Vol 41, pp 346-57
Abstract: Under general contractual principles, if one party commits a repudiatory breach of contract, the other party is entitled to either terminate or affirm the contract. However, there has been a long-standing debate as to whether the same elective principles apply in relation to the employment contract or whether the law ought to prefer a theory based on automatic termination which posits that one party’s unilateral repudiatory breach operates automatically to bring the contract of employment to an end. Different approaches have been tried and tested in England and Scotland which have resulted in the common law being in an unsatisfactory state as it currently stands. The Supreme Court has the opportunity to bring clarity to this area of the law in the upcoming case of Geys v Société Générale, London Branch which was decided by the Court of Appeal on 30 March 2011. Leave to appeal to the Supreme Court was granted on 1 November 2011. This piece analyses the merits and demerits of the elective and automatic theories of termination and comes down firmly in favour of the former.

David Cabrelli, 'The Hierarchy of Differing Behavioural Standards of Review in Labour Law ', (2011), Industrial Law Journal, Vol 40, pp 146-80
Abstract: This paper pursues a line of enquiry regarding employment laws which promulgate standards (rather than rules), the legitimacy of which is premised on the need to scrutinise managerial autonomy pursuant to a norm-setting, rather than norm-reflecting agenda. Insights will be offered in relation to the expectations about the exercise of the managerial prerogative which the law transmits through such standards. The argument is advanced that a by-product of the common law and statutory policy initiatives lying at the heart of the regulation of managerial autonomy has been the emergence of differing behavioural standards in the employment relationship. In order to satisfy the common law and statutory obligations which they owe towards their employees, employers are expected to discharge a variety of standards of conduct and adjudicators must apply differing standards of review in evaluating the lawfulness of managerial discretion. These differing standards can be grouped into a hierarchy, exploring how they function to exert a higher or lower level of scrutiny of the managerial prerogative. The paper proceeds to explore the rationales for the promulgation of such differing behavioural standards in different decision-making contexts. Finally, it goes on to analyse whether such differing standards are justifiable from a formalistic and doctrinal perspective and considers the practicability and desirability of a modest package of reform consisting of limited re-alignment whereby certain standards would be harmonised in similar contexts.

David Cabrelli, 'Rules and Standards in the Workplace: A Perspective from the Field of Labour Law', (2011), Legal Studies, Vol 31, pp 21-41
Abstract: Employment rights may be crafted as ‘bright-line’ rules or open-textured standards. Employment rights which are framed at a higher level of generality, such as standards, have not been examined in the same level of detail as rules in labour law scholarship. Standards can be divided into standards of conduct and standards of review. Standards of conduct represent commands to decision makers, such as employers, which enable them to scrutinise their decision making internally; whereas standards of review are addressed to adjudicators whose function it is to scrutinise the conduct of decision makers externally. In the majority of cases, the intensity of scrutiny which is attached to both of these standards will be the same, resulting in conflation. However, there is a general assumption that in adjudicating disputes involving employment rights, the judiciary is overly deferential to the managerial prerogative and this assumption can be corroborated – but also challenged – by an analysis which focuses on standards of review quite separately from standards of conduct. Such an examination reveals situations in which the level of scrutiny exerted externally by the adjudicator pursuant to the standard of review may be less, but also more, acute than that attached to the internal standard of conduct. This paper goes on to evaluate what the degree of intensity of scrutiny attached to standards of conduct and review reveals about employment rights more generally and erects a framework against which the argument about varying intensities of scrutiny can be given greater clarity.

David Cabrelli, 'Interpretation of Contracts, Objectivity and the Elision of Consent Reached Through Concession and Compromise ', (2011), Juridical Review, pp 121-41
Abstract: To what extent do ‘consent’ and ‘intention’ continue to have a role to play in the process of construing the terms of contracts? Is the adoption of an increasingly objective approach towards the interpretative process consistent with an assertion that it can be equiparated to the marginalisation of the role of consent? If the dynamics of concession and compromise in commercial negotiations are facets of party consent, in what way may (if at all) the prevalence of the commercially sensible construction function to elide consensus? These are some of the questions which the paper attempts to address.

David Cabrelli, 'Buckland v Bournemouth University Higher Education Corp. ', (2011), Modern Law Review, Vol 74, pp 122-34
Abstract: In the case of Buckland v Bournemouth University Higher Education Corp ([2010] EWCACiv 121) the Court of Appeal handed down judgments which were of significance for the doctrines of general English contract law, the law governing the common law implied term of mutual trust and confidence - which is a key component of the contract of employment - and the law of statutory constructive dismissal which forms part of statutory employment protection legislation in the UK. One of the two objectives of this piece is to draw the reader’s attention to three aspects of the decision in Buckland which are particularly deserving of comment. The second is to consider the implications of two of those three factors for our understanding of the likely evolution of the content of the implied term of mutual trust and confidence and the law of statutory constructive dismissal.

David Cabrelli, 'The Case Against 'Outsider Reverse' Veil Piercing ', (2010), Journal of Corporate Law Studies, Vol 10, pp 343-66
Abstract: For many years, jurists have struggled to rationalise the common law rules which prescribe the circumstances in which it is justifiable to eschew the principle of separate legal personality which posits that a company is distinct from its members and managers. The premise of this paper is that in a group of cases where the piercing the veil doctrine has been applied it has served to set aside the entity shielding feature of organisational law in order to permit the personal or business creditors of the owners (or beneficial owners) or directors of a registered company to seize the assets of the company in priority to the company’s creditors where such owners (or beneficial owners) are not insolvent (“outsider reverse veil piercing”). It is argued that when the veil piercing doctrine is applied in this way the effect it has of removing entity shielding is peculiar to registered companies. Compared with the legal position in relation to a particular incarnation of the Scottish and English partnerships, the Scottish legal institution of joint property and the English law and Scots law trusts, the operation of the veil piercing doctrine in this manner places the registered company at a competitive disadvantage and the creditors of the company in a prejudicial position in comparison with the creditors of the partnership, joint property or trust estate. The conclusion drawn is that the application of the doctrine should be confined within more limited bounds whereby it is disempowered from functioning as a means of removing the entity shielding function of corporate law.

David Cabrelli, Rebecca Zahn, 'Challenging Unfair Terms: Some Recent Developments', (2010), Juridical Review, pp 115
Abstract: Examines recent case law on the Unfair Contract Terms Act 1977 and the Unfair Terms in Consumer Contract Regulations 1999. It also includes an analysis of the decision of the Supreme Court in OFT v Abbey National Bank plc on the ability to challenge the fairness of unarranged overdraft charges levied by banks against their customers.

David Cabrelli, 'Statutory Derivative Proceedings: The View from the Inner House ', (2010), Edinburgh Law Review, Vol 14, pp 116-21
Abstract: An analysis of the Inner House decision in Wishart v Castlecroft Securities Ltd. [2009] CSIH 65, 2009 SLT 812

David Cabrelli, Louise Floyd, 'New Light through Old Windows: Restraint of Trade in English, Scottish, and Australian Employment Laws - Emerging and Enduring Issues', (2010), International Journal of Comparative Labour Law and Industrial Relations, pp 167
Abstract: The nature of the study to be pursued in this article concerns the extent to which the common law systems of England and Australia contain principles or rules designed to impinge on an employer’s freedom of contract or legitimate trading interests in order to promote the ability of an employee to trade, work freely, and enjoy the benefits of his/her labour and innovations. This will entail spelling out the principal elements of both the English and Australian concepts and outlining the differences between them in light of new problems that have emerged as a result of recent developments in economic and social conditions.

David Cabrelli, 'Statutory Derivative Proceedings in Scotland: A Procedural Impasse?', (2009), Edinburgh Law Review, Vol 13, pp 511-16
Abstract: Analyses the Outer House decision in Wishart, Petitioner [2009] CSOH 20, 2009 SLT 376

David Cabrelli, 'The Effect of Past and Subsisting Breaches on Contractual Rights ', (2009), Edinburgh Law Review, Vol 13, pp 290-94
Abstract: Examines the interpretative criteria applied to ascertain the construction of a provision of a commercial lease by the Inner House of the Court of Session in the case of Trygort (Number 2) Limited v UK Home Finance Ltd. [2008] CSIH 56, 2008 SLT 1065.

David Cabrelli, 'Re-establishing Orthodoxy in the Law of Constructive Dismissal: Claridge v Daler Rowney Ltd [2008] IRLR 672 and Bournemouth University Higher Education Corporation v Buckland [2009] IRLR 606', (2009), Industrial Law Journal, Vol 38, pp 403-11
Abstract: Claridge v Daler Rowney Ltd [2008] IRLR 672 and Bournemouth University Higher Education Corporation v Buckland [2009] IRLR 606

David Cabrelli, 'Towards a Flexible Labour Market: Labour Legislation and Regulation since the 1990s – By Paul Davies and Mark Freedland', (2008), British Journal of Industrial Relations, Vol 46, pp 820-22
Abstract: Analysis of Davies and Freedland's Towards a Flexible Labour Market: Labour Legislation and Regulation Since the 1990s (OUP, 2007)

David Cabrelli, 'Tenancies-at-will: Allen v McTaggart', (2007), Edinburgh Law Review, Vol 11, pp 436-39
Abstract: Examines the institution of 'tenancy-at-will' in Scots law

David Cabrelli, 'Restrictive Covenants: Some Recent Case Law', (2007), Greens Employment Law Bulletin, pp 5-7
Abstract: Reviews a number of English and Scottish cases on the validity of non-compete covenants and non-solicitation/non-dealing with customers clauses in contracts of employment

David Cabrelli, 'Discretion, Power and the Rationalisation of Implied Terms ', (2007), Industrial Law Journal, Vol 36, pp 194-206
Abstract: Examines the case for the rationalisation of the implied terms of the contract of employment

David Cabrelli, 'Conditional Break Options ', (2007), Green's Property Law Bulletin, Vol 86, pp 1-4

David Cabrelli, Sue Farran, 'Exploring the Interfaces between Contract Law and Property Law: A UK Comparative Approach', (2006), Maastricht Journal of European and Comparative Law, Vol 13, pp 403-43
Abstract: Contract and property law provide two examples of distinct legal approaches: pragmatism and coherency. The different natures and roles of contract law and property law also reflect the distinct qualities of the rights characteristic of both these branches of the law, namely rights in personam and rights in rem. The deviations between the approaches of contract law and property law can be seen most clearly in those transactions which rest upon the interface of property law and contract law. Two transactions lying at this interface are (1) the sale and purchase of property; and (2) the creation and constitution of rights in security over property. In this paper, the nature of these two transactions will be analysed through the looking-glass of two legal systems which are cited as providing examples of (i) the two extreme approaches of pragmatism and coherency and (ii) the comparative differences between them. These are the English law and Scots law systems. The question is whether the positions adopted by Scots law and English law in respect of the two selected transactions are so different? In practical terms, the nature of the rights that sellers and purchasers and security granters and security holders have at different stages of the formation and completion of the transactions of sale and security is extremely important, since whether the right is a right in personam or a right in rem will determine the private international law rules, taxation rules and insolvency rules which are applicable, as well as the nature of the legal remedies which are available to such parties.The comparative analysis of this article is conducted through the prism of five mandatory principles which are considered to be axiomatic in property law regimes grounded in the Civilian Law tradition. These principles are: separation, abstraction, numerus clausus, specificity and publicity. Once a comparative assessment of the applicability of these five principles to the Scots law and English law systems is made, the extent to which these principles are conceptually coherent and/or pragmatic will be considered and certain conclusions drawn.

David Cabrelli, 'Comparing the Implied Covenant of Good Faith and Fair Dealing with the Implied Term of Mutual Trust and Confidence in the US and UK Employment Contexts ', (2005), International Journal of Comparative Labour Law and Industrial Relations, Vol 21, pp 445-80
Abstract: The article examines the extent to which the common law systems of the US and the UK contain principles or rules which are principally designed to curb or eradicate the abuse of unfettered employer or employee power or discretion (actions and omissions) in the context of the contract of employment. This will be achieved by differentiating between the US concept of the implied covenant of good faith and fair dealing and the UK implied term of mutual trust and confidence which are applicable to the interpretation of US and UK employment contracts respectively. In compiling the results of such a comparative study, the recognised comparative law method will be employed. In addition, where possible, an attempt will be made to delimit briefly the historical, economic and social context surrounding the nature, content, source and application of the implied covenant and the implied term in a bid to facilitate a basic understanding of the development of these respective concepts. In analysing the results of the comparative exercise, an assumption will be made that the jurisdictions of the US and UK both acknowledge that there is considerable merit in encouraging and propagating a unitary, conciliatory approach towards modern employment relations in the 21st century. Adopting this pre-supposition as a basis for presenting the results of the comparative study, various conclusions will be drawn as to what both jurisdictions perhaps have to learn from the other as a means of strengthening both of the respective concepts.

David Cabrelli, 'The Curious Case of the ‘Unreal’ Floating Charge in Scotland ', (2005), Scots Law Times, pp (News) 127-31

David Cabrelli, 'The common law control of garden leave clauses: Public Policy or Trust and Confidence ', (2005), Greens Employment Law Bulletin

David Cabrelli, 'The Case against the Floating Charge in Scotland ', (2005), Edinburgh Law Review, Vol 9, pp 407-38
Abstract: Examines the reasons for the abolition of the floating charge in Scotland.

David Cabrelli, 'The Implied Duty of Mutual Trust and Confidence: An Emerging Overarching Principle?', (2005), Industrial Law Journal, Vol 34, pp 284-307
Abstract: There is an argument in academic circles that the implied duty of mutual trust and confidence will evolve to form an all-embracing super-principle under which each of the more ‘traditional’ implied duties will rest, including the employer’s implied duty to exercise reasonable care for the welfare and well being of the employee. The theme of this article is that, on balance, there is no evidence for the emergence of the implied duty of mutual trust and confidence as a super-principle. If anything, the recent trends in the case law emphasise the distinctiveness of the employer’s duties to exercise reasonable care and trust and confidence. The article’s aim was to demonstrate that both duties are separate, free-standing duties, sitting on an equal plane in terms of importance. To rationalise one, or all of the implied duties (i.e. the duty to exercise reasonable care and/or all of the other ‘traditional duties’), as one of the means by which the super-principle of trust and confidence is, or may be expressed, is to a large extent, aspirational.

David Cabrelli, 'Joined Up Thinking? An Analysis of the Scottish and English Law Commissions’ Proposals for the reform of Rights in Security and Charges granted by Companies ', (2004), Journal of Corporate Law Studies, Vol 4, pp 385-420
Abstract: The aim of this article is to review the latest reports of the Scottish and English Law Commissions and the English Law Commission’s most up to date thinking on law reform within the field of the constitution, priority and enforcement of company charges granted by companies registered in Scotland or England and Wales. The article assesses the recommendations and their effect from the viewpoint of the commercial law practitioner who desires closer integration between the laws of Scotland and England in this area. The terms of reference submitted to the Commissions are firstly evaluated. The Scottish legal requirements for the creation of company charges, or what are more accurately referred to as rights in security granted by companies will be considered. Such an analysis will involve an explanation of the publicity principle in Scots law in this particular context. The article then scrutinises both Law Commissions’ recommendations, revealing that the English Law Commission’s proposals are more expansive than those of the Scottish Law Commission. The effect of such disparity will then be considered.

David Cabrelli, 'Landlord's Refusal of a Tenant's Application for Consent to Assignation of Lease: An Update', (2004), Green's Property Law Bulletin, pp 1-4

David Cabrelli, 'Post-Termination Covenants in the Spotlight Again ', (2004), Industrial Law Journal, Vol 33, pp 167-79
Abstract: Examines Axiom Business Computers Ltd. v Frederick

David Cabrelli, 'Axiom Business Computers Limited v Roderick: Drafting Considerations in Relation to Restrictive Covenants', (2004), Greens Employment Law Bulletin, pp 2-4

David Cabrelli, 'The Introduction of the Stamp Duty Land Tax in Scotland ', (2003), Green's Property Law Bulletin, pp 3-5

David Cabrelli, 'Derivative Actions ', (2003), Scots Law Times, pp 73-77
Abstract: Examines the common law derivative action in Scotland

David Cabrelli, 'Who said Tax Doesn’t Need to be Taxing?: A Scottish Perspective on the Introduction of the Stamp Duty Land Tax and its interaction with the Enterprise Act 2002', (2003), Juridical Review, Vol 4, pp 277-93
Abstract: Examines the effect of the introduction of the Stamp Duty Land Tax for conveyancing transactions.

David Cabrelli, 'In Dire Need of Assistance?: Sections 151-158 of the Companies Act 1985 revisited', (2002), Journal of Business Law, pp 272-91
Abstract: Examines the nature of transactions constituting unlawful financial assistance under the Companies Act 1985, the ways of avoiding the grant of financial assistance and the effectiveness of the DTI's proposals for reform

David Cabrelli, 'When is the refusal of consent by a landlord or tenant unreasonable?: Further guidance from the Courts in Legal & General Assurance Society v Tesco Stores Limited and Ashworth Frazer Limited v Gloucester County Council', (2002), Scottish Law & Practice Quarterly, Vol 7, pp 117-30
Abstract: Reviews case law on when a landlord will be deemed to have been unreasonably withholding consent to a tenant's application for an assignation or sub-letting

David Cabrelli, 'Negative Pledges and Ranking Reconsidered ', (2002), Scottish Law & Practice Quarterly, Vol 7, pp 18-24
Abstract: Reviews the legal effect of negative pledges for the purposes of the ranking of charges and securities

David Cabrelli, 'When is the refusal of consent by a landlord or tenant unreasonable ', (2002), Green's Property Law Bulletin

David Cabrelli, 'Executive Termination/Retirement Packages ', (2001), Scots Law Times, pp 297-300

David Cabrelli, 'Can Scots lawyers trust Don King?: Trusts in the commercial context', (2001), Scottish Law & Practice Quarterly, Vol 6, pp 103-11
Abstract: Analyses the legality of the drafting technique whereby non-assignable rights are held in trust by a seller for the benefit of a purchaser under Scots law pursuant to a business disposal transaction.

David Cabrelli, 'Severability clauses: The blue pencil option', (2001), Scottish Law & Practice Quarterly, Vol 6, pp 231-36
Abstract: Reviews the law of severability clauses in commercial contracts and the attitude of the Scottish courts to severance of a portion of a contract

David Cabrelli, 'Overcoming Practical Problems: The Law of Encroachment and the Function of Title Insurance', (2001), Scottish Law & Practice Quarterly, Vol 6, pp 137-47
Abstract: Examines the law of encroachment

David Cabrelli, 'The Landlocked Proprietor’s Right of Access ', (2001), Scots Law Times, pp 25-29

David Cabrelli, 'BDG Roof Bond Limited v Douglas: Further Observations on the Application of Re Duomatic Relief', (2001), The Company Lawyer, Vol 22, pp 130-33
Abstract: Reviews the availability of Re Duomatic relief.

Chapters

David Cabrelli, 'Negotiable Instruments ' in Hector MacQueen, The Right Honourable Lord Eassie (ed.) Gloag and Henderson  (W. Green 2017) 493-516
Abstract: Chapter on the Scots law governing Bills of Exchange and Cheques.

David Cabrelli, 'Agency ' in Hector MacQueen, The Right Honourable Lord Eassie (ed.) Gloag and Henderson (W. Green 2017) 463

David Cabrelli, 'Employment ' in Hector MacQueen, The Right Honourable Lord Eassie (ed.) Gloag and Henderson (W. Green 2017) 411-462

David Cabrelli, 'Insurance ' in Hector MacQueen, The Right Honourable Lord Eassie (ed.) Gloag and Henderson (W. Green 2017) 517
Abstract: Chapter on the Scots law governing insurance contracts: commercial and consumer

David Cabrelli, 'Cautionary obligations ' in Hector MacQueen, The Right Honourable Lord Eassie (ed.) Gloag & Henderson (W. Green 2017) 389-410
Abstract: Chapter on the Scots law of cautionary obligations/guarantees

David Cabrelli, 'Duration, Lawful Termination and Frustration of the Employment Contract ' in Mark Freedland, David Cabrelli, Alan Bogg, Hugh Collins, Nicola Countouris, A C L Davies, Simon Deakin, Jeremias Prassl (ed.) The Contract of Employment (Oxford University Press 2016) 515-536
Abstract: This chapter emphasises the pivotal role that the common law rules on the implied duration and the termination of the contract of employment play in defining the essence and nature of that institution. The claim is made that the implied common law rule treating the employment contract as indeterminate in duration provides explanatory force for the rules on classification, suspension and termination of the employment contract. Turning to the common law of termination, the chapter explains how key House of Lords and Supreme Court authorities such as Johnson, Eastwood, and Edwards do not preclude the addition of ‘just cause’ requirements to the unrestricted reasonable notice rule as a means of furnishing protection to employees falling outside the coverage of the statutory unfair dismissal regime. The chapter moves on to address other common law rules in play in respect of the termination of the employment contract, e.g. those applying in the context of termination by the employer making a payment in lieu of notice, summary dismissal by the employer, resignation and retirement by the employee and the expiry and non-renewal of a fixed-term employment contract. Reforms of these rules are suggested that pursue an ‘integrationist agenda’, i.e. an approach that is designed to gradually assimilate the common law rules with those applicable for the purposes of the unfair dismissal legislation. Proposals for a similar alignment of the common law rules of frustration with the interpretation of that conception for statutory purposes are also made. The chapter ends by exploring how the suggested reforms can be divided into those which promote substantive fairness on the one hand and those seeking to achieve procedural fairness on the other.

David Cabrelli, 'The effect of termination upon post-employment relationship obligations ' in Mark Freedland, Alan Bogg, Hugh Collins, Anne Davies, Nicola Kountouris, Simon Deakin, Jeremias Prassl (ed.) The Contract of Employment (Oxford University Press 2016) 561-581
Abstract: This chapter probes the interplay between the common law rules governing the employment contract in post-employment mode and the obligations that continue to bind the employer and the employee when their relationship enters that particular phase. The argument is made that the obligations (i) imposed by the foundational wage-work bargain and (ii) governing the ongoing and future performance of work, are erased post-employment. A number of more conceptual and structural questions flowing from that revelation are then posed, which are primarily rooted in the continuing applicability of some of the implied terms of the employment contract. The first entails the teasing out of the norms related to the problematical doctrine in General Billposting Co Ltd. v Atkinson. The analysis then turns to an exploration of the juridical nature of the obligations of the contracting parties that continue whilst the employment contract has entered the post-employment phase. As part of that process, the theoretical and practical implications of the continuity of the implied terms of the employment contract in the post-employment phase is addressed, including an account and analysis of the duration of the obligations impressed on the parties by the implied terms. In the final section, the chapter underlines the vitality of public policy controls derived from the common law when the employment contract is in the post-employment stage, as mediated through the restraint of trade doctrine. However, in a break from the general post-employment theme of the chapter, it will also be shown exactly how powerful that doctrine is when the employment contract is in the full employment mode. In particular, the chapter does the work of expounding the constraints exerted by the restraint of trade doctrine in the context of garden leave and exclusivity arrangements which apply during employment.

David Cabrelli, 'Worker ' in Adrian Wilkinson, Stewart Johnstone (ed.) Encyclopedia of Human Resources Management (Edward Elgar Publishing 2016) 488

David Cabrelli, 'Gross Misconduct ' in Adrian Wilkinson, Stewart Johnstone (ed.) Encyclopedia of Human Resources Management (Edward Elgar Publishing 2016) 168

David Cabrelli, 'Notice Period ' in Adrian Wilkinson, Stewart Johnstone (ed.) Encyclopedia of Human Resources Management (Edward Elgar Publishing 2016) 295

David Cabrelli, 'Temporary Worker ' in Adrian Wilkinson, Stewart Johnstone (ed.) Encyclopedia of Human Resources Management (Edward Elgar Publishing 2016) 437

David Cabrelli, 'Misconduct ' in Adrian Wilkinson, Stewart Johnstone (ed.) Encyclopedia of Human Resources Management (Edward Elgar Publishing 2016) 283

David Cabrelli, 'Disciplinary Procedure ' in Adrian Wilkinson, Stewart Johnstone (ed.) Encyclopedia of Human Resources Management (Edward Elgar Publishing 2016) 91

David Cabrelli, 'Grievance Procedure ' in Adrian Wilkinson, Stewart Johnstone (ed.) Encyclopedia of Human Resources Management (Edward Elgar Publishing 2016) 167

David Cabrelli, 'Employee ' in Adrian Wilkinson, Stewart Johnstone (ed.) Encyclopedia of Human Resources Management (Edward Elgar Publishing 2016) 112

David Cabrelli, 'Insurance Law ' in Gillian Black (ed.) Business Law in Scotland (W. Green 2015)

David Cabrelli, 'Choice of Business Medium ' in Gillian Black (ed.) Business Law in Scotland (W. Green 2015)
Abstract: Textbook for Business Law Students on Scots Law

David Cabrelli, 'Partnership Law ' in Gillian Black (ed.) Business Law in Scotland (W. Green 2015)

David Cabrelli, 'Company Law ' in Gillian Black (ed.) Business Law in Scotland (W. Green 2015)

David Cabrelli, 'Shareholders' Rights and Litigation ' in David Cabrelli, Mathias Siems (ed.) Comparative Company Law (Hart Publishing 2013) 287-326

David Cabrelli, 'Examining the Labour Law and Social Dimension of Human Rights The UK and South Africa' in Elspeth Reid, Daniel Visser (ed.) Private Law and Human Rights (Edinburgh University Press 2013) 391-417

David Cabrelli, 'Scotland ' in Danny Busch, Deborah DeMott (ed.) The Liability of Asset Managers (Oxford University Press 2012) 507-33
Abstract: Exposition of Scots law on the liability of asset managers.

David Cabrelli, 'Business ' in Elaine E. Sutherland, Kay E. Goodall, Gavin F.M. Little, Fraser P. Davidson (ed.) Law Making and the Scottish Parliament (Edinburgh University Press 2011) 303-16
Abstract: This chapter focuses on the recently enacted Arbitration (Scotland) Act 2010 (‘the Act’) whose remit is to reform the main out-of-court mechanism for the resolution of commercial law disputes. The principal aim of the Act is particularly aspirational, namely to encourage the use of arbitration domestically and attract international arbitration business to Scotland. The Act was passed by the Scottish Parliament on 18 November 2009, received Royal Assent on 5 January 2010, and came into force on 7 June 2010.

David Cabrelli, 'Choice of Business Medium, Partnership Law, Company Law and Insurance Law ' in Gillian Black (ed.) Business Law in Scotland (W.Green 2011) 457-619

David Cabrelli, 'Company Law ' in Dale McFadzean (ed.) Introduction to Law and Legal Obligations (Dundee University Press 2009) 239

David Cabrelli, 'Choice of Business Medium ' in Josephine Bisacre, James P. Chalmers, LLB., Stuart Cross (ed.) Business Law in Scotland (W. Green 2008) ch 14
Abstract: Examines the law of partnership and company law

David Cabrelli, 'Leases ' in Hector MacQueen, Lord Coulsfield (ed.) Gloag and Henderson (W Green 2007) 763-837
Abstract: Update of the Scots law of leases, including residential leases, agricultural tenancies and crofts.

Working Papers

David Cabrelli, Rebecca Zahn, 'Civic Republican Political Theory and Labour Law: A Sketch' 2017
Abstract: A number of justifications have been, and are, cited in favour of legal intervention in the field of labour law. The traditional approach has been to stress the role of labour laws in correcting the imbalance in bargaining power inherent within the employment relationship. Thus, "the main object of labour law has always been, and [...] will always be, to be a countervailing force to counteract the inequality of bargaining power which is inherent and must be inherent in the employment relationship" (Davies and Freedland (eds), Kahn-Freund's Labour and the Law, 3rd edition (London, Stevens, 1983)). Kahn-Freund makes the point that labour legislation has interfered in the employment relationship, e.g. to regulate terms and conditions of employment, and furnish rules on the hiring and dismissal of employees, as well as the basic work-wage bargain or the exchange of the worker's services in return for remuneration. Labour law has also indirectly provided support for the effective functioning of collective bargaining under the umbrella of 'collective laissez-faire'.However, in the contemporary context, the concern with the correction of inequalities in bargaining power via the prophylactic of labour laws or the social practice of collective bargaining has lost much of its force. Economists have attacked the notion that legal intervention is required to offset the unequal exchange of resources between the employee and the employer. Equally, the 'inequality of bargaining power' justification for labour law has been criticised for its lack of normative precision. The premise of the correction of imbalances in bargaining strength between the worker and the employer has therefore given way to two further justifications for labour law. First, by linking labour law closely to the functioning of the labour market and thereby anchoring it firmly within a market-driven ideology, there appears a perceived need to regulate labour market failures in order to achieve efficient labour markets. Second, a continued focus on the traditional social objectives of labour law gives way to a realisation of social justice through the repulsion of the 'economic logic of the commodification of labour' (H. Collins, Employment Law, 2nd ed. (Oxford, OUP, 2010) 5). However, much like 'inequality of bargaining power', neither of these two justifications offers an all-encompassing explanation for labour law's interference in contemporary employment relationships.Following a brief analysis of the various rationales for labour law and their inadequacies, this paper therefore turns to political theories of social justice and domination to give a sketch of an alternative basis for intervention in the employment relationship. The paper draws upon works by Philip Pettit and Frank Lovett in the field of civic republican political theory to explore whether the employment relationship should be treated as one of the types of social relationship which are generally characterised by domination by one party (the employer) over another (the employee). If so, then there is an argument that labour law's purpose can be defined as rules, principles and doctrines forged by the common law and shaped by domestic and international legislation which are concerned with the minimisation of the domination exerted by an employer over an employee.

David Cabrelli, Mathias Siems, 'Convergence, Legal Origins, and Transplants in Comparative Corporate Law: A Case-Based and Quantitative Analysis' 2015
Abstract: In this Article, we intend to fill a gap in the comparative law literature by adopting a case-based approach to comparative corporate law that highlights the important dimension of specific cases in corporate law matters and how identifiable, but limited issues arising from such case disputes are resolved in different jurisdictions. Our study is based on ten cases used in a wider research project and their solutions in ten countries: eight European countries, the United States, and Japan. We assess the solutions to these cases using quantitative methods of network and cluster analysis. We also seek to enquire whether conceptual differences exist between countries in terms of the source, form, style, and substance of the legal rules which comprise their corporate laws.The findings of this assessment are used to evaluate arguments developed in the academic comparative company literature which posit that the existence of fundamental differences in the protection of shareholders across countries reduces the scope for convergence in corporate law systems. The case-based evaluation is also applied to make a contribution towards other influential theories in comparative law, particularly the “legal origins” theorem and the “legal transplants” debate. For example, while we find some evidence of legal transplants, we will show that the notion of legal origins has only limited value in today’s corporate law. Furthermore, the research has a public policy dimension since the existence or absence of differences matters for the question of whether formal harmonization of corporate law in the EU, or further afield, is necessary, desirable, or at all possible.

David Cabrelli, Rebecca Zahn, 'The Elective and Automatic Theories of Termination in the Common Law of the Contract of Employment: Conundrum Resolved?' 2013
Abstract: If a party to an employment contract commits a repudiatory dismissal or resignation, it has long been unclear whether the other party has the option either to terminate or affirm the contract (the elective theory) or whether the former's breach operates to bring the contract of employment to an end (the automatic theory). The recent decision of the Supreme Court in Société Générale (London Branch) v Geys has finally resolved this question. By a majority, the Supreme Court held that the elective theory also applies in the context of a wrongful repudiation of the employment contract by express dismissal or resignation. This note examines the significance of Geys in the context of the common law of the contract of employment and evaluates whether a number of related issues surrounding the breach and termination of the employment contract have been resolved.

David Cabrelli, Shaowei Lin, 'Legal Protection for Minority Shareholders in China ' 2013
Abstract: In view of the increasingly severe exploitation of minority shareholders and the existence of double agency costs in China, it is necessary to provide strong protection for minority shareholders in China in order to build an investor-friendly system. By enabling minority shareholders to prevent misconducts of majority shareholders and managers, legal system has made significant progress in the past twenty years. Nevertheless, many defects still exist. The first enactment of the PRC Company Law was passed in 1992 with primary goal to serve reform of state-owned enterprises and therefore protection for minority shareholders was excluded by the scope of these reforms. The revision of the Company Law in 2005 was regarded as historical progress of Chinese company law in respect of providing protection for minority shareholders as many rights are conferred on shareholders and more measures were adopted to restrain the power of directors and controlling shareholders. However, this paper identifies that these various rights and protective mechanisms have certain deficiencies, which means that the interests of minority shareholders suppose to be guaranteed would be inevitably affected. Without improvements and clarifications of the existing legal protection in the future, interests of shareholders and company as a whole will be obstructed ultimately and development of capital markets will be significantly impeded.

David Cabrelli, Mathias Siems, 'Comparative Company Law: A Case-Based Approach' 2013
Abstract: As attention moves rapidly towards comparative approaches, the research and teaching of company law has somehow lagged behind. The overall purpose of this book is therefore to fill a gap in the literature by identifying whether conceptual differences between countries exist. Rather than concentrate on whether the institutional structure of the corporation varies across jurisdictions, the objective of this book will be pursued by focusing on specific cases and how different countries might treat each of these cases. The book also has a public policy dimension, because the existence or absence of differences may lead to the question of whether formal harmonisation of company law is necessary.The book covers 10 legal systems. With respect to countries of the European Union, it focuses on the most populous countries (Germany, France, the UK, Spain, Italy and Poland) as well as two smaller Member States (Finland and Latvia). In addition, the laws of two of the world's largest economies (the US and Japan) are included for the purposes of wider comparison. All of these jurisdictions are subjected to scrutiny by deploying a comparative case-based study. On the basis of these case solutions, various conclusions are reached, some of which challenge established orthodoxies in the field of comparative company law.The SSRN document includes the Table of Contents and the first chapter of the book.

David Cabrelli, 'The Liability of Asset Managers in Scots Law ' 2011
Abstract: This paper discusses the liability of asset managers in Scots private law. It is a contribution to a pan-European Study on that topic.

David Cabrelli, 'Private Law and Human Rights in South Africa and Scotland: Examining the Labour Law and Social Dimension' 2011

David Cabrelli, 'The Case against 'Outsider Reverse' Veil Piercing in Company Law ' 2010
Abstract: For many years, jurists have struggled to rationalise the common law rules which describe the circumstances in which it is justifiable to eschew the principle of separate legal personality which posits that a company is distinct from its members and managers. This is not particularly surprising. The central argument of this article is that in each of the cases where the piercing the veil doctrine has been considered by the courts, claimants have been seeking to harness it as a means of achieving three distinct objectives: first, setting aside the entity shielding feature of organisational law in order to permit the personal or business creditors of the owners (or beneficial owners) or directors (including de facto or shadow directors) of a registered company to seize the assets of the company in priority to the company’s creditors (‘outsider reverse veil piercing’); secondly, disregarding the institution of limited liability as a means of enabling the creditors of a registered company to seek recourse against the personal assets of the company’s owners (or beneficial owners) or directors in precedence to the personal or business creditors of that owner or director; finally, setting aside the separate legal personality of a registered company strictu sensu as a means of achieving an objective unconnected to the foregoing two factors. Once the implications of this are properly understood, an argument emerges which posits that it may be generally undesirable from a doctrinal perspective to permit the common law to set aside the entity shielding function of corporate law and that the application of the doctrine should be confined within limited bounds.

David Cabrelli, 'Interpretation of Contracts, Objectivity and the Elision of Consent Reached Through Concession and Compromise ' 2010
Abstract: To what extent do ‘consent’ and ‘intention’ continue to have a role to play in the process of construing the terms of contracts? Is the adoption of an increasingly objective approach towards the interpretative process consistent with an assertion that it can be equiparated to the marginalisation of the role of consent? If the dynamics of concession and compromise in commercial negotiations are facets of party consent, in what way may (if at all) the prevalence of the commercially sensible construction function to elide consensus? These are some of the questions which the paper attempts to address.

David Cabrelli, 'The Hierarchy of Differing Behavioural Standards in Labour Law: A Case for Limited Re-Alignment?' 2009
Abstract: This paper pursues a line of enquiry regarding employment laws which promulgate standards (rather than rules), the legitimacy of which are premised on the need to scrutinise managerial autonomy pursuant to a norm-setting, rather than norm-reflecting agenda. Insights will be offered in relation to the expectations about the exercise of the managerial prerogative which the law transmits through such standards. The argument is advanced that a by-product of the common law and statutory policy initiatives lying at the heart of the regulation of managerial autonomy has been the emergence of differing behavioural standards in the employment relationship. In order to satisfy the common law and statutory obligations which it owes towards its employees, employers are expected to discharge a variety of standards of conduct and review. These differing standards can be grouped into a hierarchy, exploring how they function at higher or lower levels of managerial scrutiny. The paper proceeds to explore the rationales for the promulgation of such differing behavioural standards in different decision-making contexts. The paper goes on to analyse whether such differing standards are justifiable from a formalistic and doctrinal perspective and considers the desirability of a package of reform consisting of the re-alignment of standards in order to reflect fundamental values underpinning the employment relationship.

David Cabrelli, 'Rules and Standards in the Workplace: A Perspective from the Field of Labour Law' 2009
Abstract: Employment rights may be crafted as 'bright-line' rules or open-textured standards. Labour law scholarship has principally engaged with the significance of employment rights which are articulated as rules and whether it is preferable for such rules to be ascribed mandatory or default status. However, employment rights which are framed at a higher level of generality such as standards have not been examined in the same level of detail. Standards can be distinguished from rules by reference to the degree of precision and transparency of the employment right and can be divided into standards of conduct and standards of review. Standards of conduct direct commands to decision-makers such as employers whereas standards of review are addressed to adjudicators whose function it is to scrutinise the conduct of decision-makers. In the majority of cases, the intensity of scrutiny of decision-makers which is attached to both of these standards is the same, thus resulting in the conflation of the standards. However, on occasion, the level of scrutiny exerted by the adjudicator pursuant to the standard of review may be more, or less, acute than that attached to the standard of conduct. This article examines the rationales for such divergence and analyses what the degree of intensity of scrutiny attached to standards of conduct and standards of review reveals about employment rights. The paper finally erects a framework against which the argument about varying intensities of scrutiny can be given greater clarity and meaning by advancing a series of alternative possible ranges or spectra of standards of conduct and review.