‘Equity, Conscience and Commercial Morality’

The UNSW Law Journal is currently welcoming submissions for the thematic component of Issue 47(4). The topic for this thematic is ‘Equity, Conscience and Commercial Morality’.

Though much has been made of the adage that ‘the categories of equity are never closed’, there has been significant stagnation in public debate regarding the development and reform of equity in general, particularly commercial equity. Though it is a given that courts of equity should work their way to a conclusion through a comprehensive view of every connected circumstance, equity continues to grapple with the extent to which the flexibility of equity conflicts with underlying principles, if at all. This is especially true in the realm of commercial equity, where certainty is widely considered to be of paramount importance. Indeed, the increasing complexity of commercial activity and regulation has made the search for unifying principles more difficult, and perhaps even undesirable.  

Meanwhile, there has been a resurgence in debate surrounding the place of moral and ethical concepts in commercial transactions and regulation. In particular, growth in the number and size of mega-corporations has given rise to concerns regarding commercial fairness in the marketplace. At the individual level, questions of if and how far equitable doctrines should intervene to uphold commercial fairness are the subject of ongoing judicial consideration.

It seems that the increasing speed of commercial innovation and development will continue to push the law towards a crossroads of ideals: for example, to what extent are traditional equitable doctrines suitable for the modern commercial environment? To what extent should moral concepts play a role in commercial transactions? Does equity remain fit for purpose, and what part should statute play in the fashioning of equitable relief? Such questions are ripe for academic commentary and analysis.

In writing submissions, authors may wish to explore the following issues. However, authors are not limited to these areas of law and are encouraged to draw upon their own areas of expertise. In particular, the Journal welcomes submissions that discuss relationships between equitable doctrines and private law, or that discuss private law theory. The Journal also welcomes comparative and inter-disciplinary, along with orthodox, approaches to these issues and questions.

The Role of Equity in Commerce

• The relationship between equitable doctrines and statutory regimes governing commercial behaviour.
• The tension between equity’s flexibility and the desirability of certainty in commercial transactions.
• The adequacy of equity’s ability to fashion justice and relief in the context of commercial law.

Modern Trusts and Equitable Duties

• The suitability of traditional equitable duties to modern day commercial activity and regulation.
• Uses and misuses of modern trusts, including trading trusts, superannuation and family discretionary trusts.
• The relationship between equitable duties and conscience.

Regulation of Financial Services

• The impact of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry and other inquiries on the moral and ethical standards applicable to commercial activity.
• The extent to which equitable concepts and moral ideas inform, or should inform, commercial and financial services regulation.
• Theories and methods of effective principles-based regulation.

Corporate Morality and Moral Market Practices

• The achievability and limits of commercial fairness in light of changing market structures and depreciation in consumer bargaining power.
• Corporate social responsibility and the moral obligations of the modern corporation.
• Theories of justice, such as distributive justice, in the context of consumer protection and regulatory responses to market crises.

Professional Services Firms and Professional Ethics

• The ethical role and obligations of professional and legal services firms in facilitating commercial transactions.
• The desirability of commercial efficiency and therefore the ethicality of firm use of emerging technologies, such as generative AI, to achieve those goals.

Discretion and Judicial Conscience in Commercial Litigation

• The characteristics and qualities of a properly formed judicial conscience as applicable to equitable suits and remedies.
• The place of moral and ethical concepts in judicial decision-making in commercial law, for example as applicable to judicial debate surrounding unconscionable dealing.

The submission deadline for the thematic Issue 47(4) is 31 March 2024, with publication set for early December 2024. Any changes to these deadlines will be updated on the Journal’s website.

Submissions should be between 7,000 and 13,000 words in length, excluding footnotes. The style guide for the Journal is the fourth edition of the Australian Guide to Legal Citation, as supplemented by the latest edition of the Journal’s Additions to the AGLC (4^th Ed), which is available on our website.

The Journal is an independent, peer-reviewed publication. While publication is subject to peer review, publication decisions remain at the Editor’s discretion, in counsel with the Executive Committee of the Journal. The Journal does not publish articles that have been, or will be, published elsewhere, either in identical or substantially similar form. Please contact the Journal at law.journal@unsw.edu.au if you are interested or have queries about submitting for Issue 47(4).

If you intend to submit an article, it would be greatly appreciated if you could please provide some early indication of your proposed topic or area of research. We strongly encourage you to pass this call for submissions to any colleagues, research networks or organisations who may be interested in making a submission.

Yours sincerely,

Rowan Gray
Editor, Issue 47(4)