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.
At present, David is currently involved in a number of research projects. First, he is researching in the field of employment law and in particular, the law of the contract of employment. His principal research in labour law involves a detailed examination of the differing behavioural standards and expectations which the common law and the legislature imposes upon employers. In May 2009, David was fortunate enough to secure a small research grant from the Nuffield Foundation towards continued research into the project described at (i) above - see http://www.nuffieldfoundation.org/go/grants/smallgrants/page_126.html. A brief statement outlining the nature of the empirical research involved is attached at the bottom of this webpage under the heading 'Working and Occasional Papers'.
David is also in the process of writing a text and materials book on Labour Law, with the title "Employment Law in Context: Text and Materials" for Oxford University Press. David will be starting work on this textbook during the sabbatical leave in the first semester of 2011/12 which was generously granted to him by the Law School. The objective is to produce a mid to high level text which comprehensively covers the subject of individual and collective labour law in the UK in an accessible, engaging and highly contextual format. The principal focus is on drawing a clear demarcation line between (1) an initial explanation of the problems which confront policy-makers, judges and legislators entrusted with the task of crafting and reforming labour laws and (2) the substance of the applicable UK laws designed to deal with those issues. David intends to use the book as a means of presenting an academic treatment of the subject in its social, economic, political and historical context by bringing key and current debates to the attention of students.
In the field of company law, David has been undertaking research on the common law doctrine on piercing the corporate veil. An article setting out this research was published in the Journal of Corporate Law Studies. Furthermore, in conjunction with Prof. Mathias Siems of the University of Durham, David entered into a publishing agreement with Hart Publishing. The book to be published will be entitled 'Comparative Company Law: A Case-Based Approach' and 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 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 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 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/
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.
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.
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.
David Cabrelli 'Interpretation of Contracts, Objectivity and the Elision of the Significance of Consent reached through Concession and Compromise' (2011) Juridical Review 121-141
Reviews the law on the interpretation of contracts in Scotland. In particular, it examines the differences between an objective and subjective approach to interpretation and a literal and contextual approach.
David Cabrelli 'The Hierarchy of Differing Behavioural Standards of Review in Labour Law' (2011) Industrial Law Journal 40(2) 146-180
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 31(1) 21-41
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 'Buckland v Bournemouth University Higher Education Corp.' (2011) Modern Law Review 74(1) 122-134
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.
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 115
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.
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 '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 38(4) 403-411
Examines the cases of Claridge v Daler Rowney Ltd and Bournemouth University Higher Education Corporation v Buckland which were both decided by the Employment Appeal Tribunal and argues that they reveal a number of insights concerning the appropriate intensity of scrutiny that must be applied by an adjudicator to an employer’s conduct and decision making where an employee alleges that the employer’s conduct amounts to a breach of the common law implied term of mutual trust and confidence entitling him to claim statutory unfair constructive dismissal under s 95(1)(c) of the Employment Rights Act (ERA) 1996. Buckland and Claridge are also noteworthy for what they convey about the adjudicator’s scope of interference in the employer’s prerogative powers, the content of the common law implied term of mutual trust and confidence and the law of statutory constructive dismissal.
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, Issue 4, 403-443
Examines the Principles of Separation, Publicity, Abstraction, Numerus Clausus and specificity in the context of Scots law and English law as they apply to the law of sale and rights in security. The article thereafter makes comparisons and offers insights into the pragmatism and coherency of Scots law and English law respectively by the application of these principles as tools.
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 Case Against the Floating Charge in Scotland' (2005) Edinburgh Law Review Vol. 9, Issue 3, 407 - 438
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, Issue 2,
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 '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, 277 - 293
Examines the effect of the introduction of the Stamp Duty Land Tax for conveyancing transactions
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 7 (2), 117 - 130
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 'In Dire Need of Assistance? Sections 151-158 of the Companies Act 1985 revisited' (2002) Journal of Business Law May, 272 - 291
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 'Overcoming practical problems: the law of encroachment and the function of title insurance' (2001) Scottish Law & Practice Quarterly 6 (2), 137 - 147
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
Chapters
David Cabrelli 'Choice of Business Medium, Partnership Law, Company Law and Insurance Law' in Gillian BlackBusiness Law in Scotland, 2nd edn (W.Green, 2011) pp. 457-619
David Cabrelli 'Chapter on 'Business'' in Elaine Sutherland, Kay Goodall, Gavin Little and Fraser Davidson (eds) Law Making and the Scottish Parliament (Edinburgh University Press, 2011) Chapter 15
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 'Book Review of Davies and Freedland's 'Towards a Flexible Labour Market: Labour Legislation and Regulation Since the 1990s (OUP, 2007)' (2008) British Journal of Industrial Relations 820-822
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 'Tenancies-at-will: Allen v McTaggart' (2007) Edinburgh Law Review 11(3) p. 436
Examines the case for the rationalisation of the implied terms of the contract of employment
David Cabrelli 'The common law control of garden leave clauses: Public Policy or Trust and Confidence' (2005) Green's Employment Law Bulletin
David Cabrelli 'The curious case of the ‘unreal’ floating charge in Scotland' (2005) Scots Law Times SLT (News) 127 - 131
David Cabrelli 'Axiom Business Computers Limited v Roderick – Drafting Considerations in Relation to Restrictive Covenants' (2004) Green's Employment Law Bulletin Issue 59, 2 - 4
David Cabrelli 'Landlord's refusal of a tenant's application for consent to assignation of lease: An update' (2004) Green's Property Law Bulletin Issue 70, 1 - 4
David Cabrelli 'Post-Termination Covenants in the Spotlight Again' (2004) Industrial Law Journal Vol. 33: 167 - 179
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 'BDG Roof Bond Limited v Douglas: further observations on the application of Re Duomatic relief' (2001) The Company Lawyer Vol. 22 (5), 130 - 133
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', School of Law Working Paper Series, 2011/34 (SSRN, 2011)
This chapter traces the trajectory of development of labour law in the UK and South Africa in
light of recent attempts in both jurisdictions to ‘humanise’ the employment sphere and
enhance worker protection via the prophylactic of constitutional human rights. The discussion
is conducted within the context of an ongoing debate on the merits of constitutionalising labour rights.
David Cabrelli 'Interpretation of Contracts, Objectivity and the Elision of Consent Reached Through Concession and Compromise', School of Law Working Paper Series, No 2010/06 (SSRN, 2010)
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.
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 'Rules and Standards in the Workplace: A Perspective from the Field of Labour Law', School of Law Working Paper Series, 2009/11 (SSRN, 2009)
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.
David Cabrelli 'The Hierarchy of Differing Behavioural Standards in Labour Law: A Case for Limited Re-Alignment?', School of Law Working Paper Series, 2009/04 (SSRN, 2009)
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 'Nuffield Foundation – Social Sciences Small Grant Scheme Application. Statement of Research: Examining the application of employment standards in the workplace' (2009)
David Cabrelli 'The Hierarchy of Differing Behavioural Standards in Labour Law: A Case for Limited Re-alignment?' (2008)
Examines the implications of the decision of the House of Lords in Mayor and Burgesses of the London Borough of Lewisham v Malcolm. Malcolm overrules Clark v Novacold and so is extremely important for the purposes of the law of disability discrimination. The fundamental premise of the paper is that the effect of Malcolm is that the concept of 'disability-related' discrimination in section 3A(1) of the Disability Discrimination Act 1995 has been marginalised to the least useful of the instruments provided to disabled employees in the DDA.
David Cabrelli 'Rules and Standards in the Workplace: A Perspective from the field of Labour Law' (2008)
This paper examines the nature of employment rights which are crafted as open-textured standards and the intensity of scrutiny exerted by adjudicators pursuant to such standards. A division is made between standards of conduct and standards of review for these purposes.
David Cabrelli 'Towards a Prohibition of the Derogation of Employment Rights' (2007)
This paper represents the first of three papers on the subject of the inderogability deficit (i.e. the current legal position whereby employment rights may be displaced by express contractual terms) and whether a principle of inderogability (i.e. converting employment rights into inderogable rules) is something which could emerge within the current structures of UK employment law. It explores the following major issues: -
1. An examination of the sources of employment rights and the sources of derogation and the production of a methodological framework with reference to such sources for the purposes of the writer's research project;
2. The various rationales in favour of the evolution of a principle of inderogability; and
3. The factors militating against the emergence of an inderogability principle.
This paper does not propose to chart the extent of the inderogability deficit with reference to the exact proportion of UK employment rights which can be disapplied or qualified by contractual or other techniques. However, a number of examples of derogable employment rights will be considered to underline clearly the point throughout this paper.
Further, the overall research project aims to achieve the following objectives: -
1. The construction of a framework within which a meaningful principle of inderogability might emerge; and
2. To ascertain whether it is at all feasible that such a principle can ever emerge in the context of the contract of employment as constructed in terms of UK employment law.
Papers and Presentations
David Cabrelli 'Examining the Labour Law Dimension of Human Rights' presented at Private Law and Human Rights in Scotland and South Africa,, Stellenbosch, South Africa, 2011
This paper sought to describe the ways in which the introduction of the Human Rights Act 1998 have impacted upon labour law in the UK and whether there were any commonalities with the way in which the South African courts have deployed the Bill of Rights in the South African Constitution in the context of labour law. The intention was to ask if and how the Scots and South African experiences might make a modest contribution to the debate on the merits and demerits of the constitutionalisation of labour rights which rages in the academy and beyond.
David Cabrelli 'The Case Against 'Outsider Reverse' Veil Piercing' presented at SLS Conference, University of Southampton, 2010
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. 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 'The Hierarchy of Differing Behavioural Standards in Labour Law: A Case for Limited Re-alignment?' presented at Critical Legal Conference, Glasgow, 2008
The paper assesses the hierarchy of differing behavioural standards present in the employment relationship. It considers the varying intensities of scrutiny exerted by adjudicators over managerial action and behaviour where an employment right is crafted as an open-textured standard rather than a rule. It argues for the re-alignment of standards in certain limited rights contexts, whilst positing that further empirical research is required before any call for the wholesale reform of the intensities of scrutiny associated with standards is made.
David Cabrelli 'The reform of the law of directors' duties in UK company law' presented at Presentation at Bocconi University, Milan, Bocconi University, Milan, Italy, 2008
Synopsis