Mitigating the Risk of Unfair Demands under On-demand Guarantees in the Export and Construction Industries in Sri Lanka: A Proposal for Legal and Structural Reform
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Author(s)
Primary Supervisor
Wilson, Therese
Other Supervisors
Touchie, John
Year published
2012
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The research question addressed in this thesis is: Would an expansion of judicial intervention (that recognises unconscionability as a separate and independent ground from that of fraud) in the enforcement of on-demand guarantees in Sri Lanka, be useful in mitigating the risk of unfair and opportunistic advantage taking on the part of the beneficiaires calling under on-demand guarantees in Sri Lanka? The problem of beneficiaries’ fraudulent or opportunistic, unfair advantage taking conduct in calling under on-demand guarantees – identified as unfair demands under on-demand guarantees – arises due to the nature of such ...
View more >The research question addressed in this thesis is: Would an expansion of judicial intervention (that recognises unconscionability as a separate and independent ground from that of fraud) in the enforcement of on-demand guarantees in Sri Lanka, be useful in mitigating the risk of unfair and opportunistic advantage taking on the part of the beneficiaires calling under on-demand guarantees in Sri Lanka? The problem of beneficiaries’ fraudulent or opportunistic, unfair advantage taking conduct in calling under on-demand guarantees – identified as unfair demands under on-demand guarantees – arises due to the nature of such guarantees which gives the beneficiaries the right to demand payment without having to prove the applicants’ default under the underlying contract. This inherent characteristic of on-demand guarantees gives the beneficiaries a strong position in relation to payment under such guarantees and the potential for misuse and unfair advantage taking in the guarantee market. Whilst the Sri Lankan courts have recognised the need for intervention in the enforcement of on-demand guarantees in circumstances where the beneficiaries’ demands are fraudulent, they have not yet recognised a mechanism to mitigate beneficiaries’ opportunistic and unfair advantage taking which is a form of unconscionable conduct in seeking the enforcement of these guarantees. This thesis examines this legal position in Sri Lanka which recognises limited scope for judicial intervention in the enforcement of on-demand guarantees, and which has led to a protection gap for the applicants of on-demand guarantees.
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View more >The research question addressed in this thesis is: Would an expansion of judicial intervention (that recognises unconscionability as a separate and independent ground from that of fraud) in the enforcement of on-demand guarantees in Sri Lanka, be useful in mitigating the risk of unfair and opportunistic advantage taking on the part of the beneficiaires calling under on-demand guarantees in Sri Lanka? The problem of beneficiaries’ fraudulent or opportunistic, unfair advantage taking conduct in calling under on-demand guarantees – identified as unfair demands under on-demand guarantees – arises due to the nature of such guarantees which gives the beneficiaries the right to demand payment without having to prove the applicants’ default under the underlying contract. This inherent characteristic of on-demand guarantees gives the beneficiaries a strong position in relation to payment under such guarantees and the potential for misuse and unfair advantage taking in the guarantee market. Whilst the Sri Lankan courts have recognised the need for intervention in the enforcement of on-demand guarantees in circumstances where the beneficiaries’ demands are fraudulent, they have not yet recognised a mechanism to mitigate beneficiaries’ opportunistic and unfair advantage taking which is a form of unconscionable conduct in seeking the enforcement of these guarantees. This thesis examines this legal position in Sri Lanka which recognises limited scope for judicial intervention in the enforcement of on-demand guarantees, and which has led to a protection gap for the applicants of on-demand guarantees.
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Thesis Type
Thesis (PhD Doctorate)
Degree Program
Doctor of Philosophy (PhD)
School
Griffith Law School
Copyright Statement
The author owns the copyright in this thesis, unless stated otherwise.
Item Access Status
Public
Subject
Judicial intervention
Sri Lanka export industry
Sri Lanka construction industry
On demand guarantees