The Viability of Retention of Title Clauses
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My name is Kit Lee, I am a 20-year-old final year LLB Law student at Durham University, and I grew up in Malaysia before starting my Law degree at Durham.
Described as ‘revolutionary’ (McKendrick) and ‘the most important decision in commercial law this century’ (Goode), the Romalpa case triggered the widespread adoption of retention of title clauses (‘RT clauses’) in boilerplate sales contracts in the mid-1970s. These clauses were seemingly effective tools for vendors to protect themselves in the event of the buyers’ insolvency. I chose to write my essay on RT clauses as it presented an exciting opportunity for me to understand the rationale behind the English courts’ reluctance to uphold RT clauses post-Romalpa and to engage with extensive academic literature to determine the viability of RT clauses today. This essay hopes to demonstrate that, unfortunately, unlike in other jurisdictions such as the US and Germany, the functionality of RT clauses remains relatively limited under English law.
- Kit Lee, Author
Introduction
The twentieth century saw two key trends in global fishing and fishery management; enormous overfishing[1] as a result of technological advance[2] and, as a corollary, an increased need at both national and international levels to regulate fishing.[3] By the end of the century international legal frameworks were developed to govern fishing, a rejection of Grotius’ principle that fish were an endless and therefore free resource;[4] fish stocks could now be owned and therefore controlled. Most fisheries operate under a ‘season’ system which dictates when fish can be caught; this measure, intended to protect fisheries from over-exploitation, is a classic example of states and international bodies curtailing the activities of other parties by asserting ownership and management rights.
Nonetheless, because large populations of fish ignore attempts to divide the oceans by means of lines on a map[5] and because these divisions are often contested, some stocks are, de facto, shared between two or more nations who may have entirely different fishing seasons or conservation measures in place. A key question for marine conservation is, therefore, how fishing seasons function in waters over which two or more nations have claimed ownership and the corollary right to impose them. This thesis proposes a solution to this problem through reference to international legislative frameworks and analysis of recent judgments at the PCA.
[1] Clara McNeill, ‘Go Fish! A Critical Assessment of G. Hardin’s ‘Tragedy of the Commons’ Application to the Fishing Industry’ (2021) 6 Durham Law Review 1
[2] Jill Wakefield, ‘The Ecosystem Approach and the Common Fisheries Policy’, in David Langlet and Rosemary Rayfuse (eds), ‘The Ecosystem Approach in Ocean Planning and Governance: Perspectives from Europe and Beyond’ (Brill 2018) 290
[3] Ibid 288
[4] Edward Gordon, ‘Grotius and the Freedom of the Seas in the Seventeenth Century’ (2008) 16 Willamette Journal of International Law and Dispute Resolution 252, 252
[5] Rögnvaldur Hannesson, ‘Sharing a Migrating Fish Stock’ (2013) 28 Marine Resource Economics 1, 2
