Unresolved issues in the law on penalties

• Autores: Andrew Summers
• Localización: Lloyd's maritime and commercial law quarterly, ISSN 0306-2945, Nº. 1, 2017, págs. 95-121
• Idioma: inglés
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• Resumen

  • The article examines several unresolved issues in the law on penalties, following the UK Supreme Court’s restatement of the penalties rule in Makdessi v Cavendish Square Holdings. The discussion is divided into three main parts: the jurisdiction (or scope) of the rule; the test for the validity of impugned clauses; and the effect of the rule. The central argument is that, although the court’s decision to limit the rule’s application at both the jurisdiction and validity stages will increase parties’ certainty that their clauses will be enforced, the restatement leaves the law itself less certain in several respects.