#IALL2016 Recap: Humans as Service? Regulating Work in the Sharing Economy

Employment in the Shring Economy

By: Charles Bjork

Session Six of IALL’s 35rd annual course on international law and legal information in Oxford featured a talk by Associate Professor Jeremias Prassl of the Oxford University Law Faculty on the following topic: Humans as a Service?  Regulating Work in the Sharing Economy.

Professor Prassl began by describing the phenomenon known as the “collaborative,” “sharing,” or “gig” economy.  This phenomenon relies on crowdsourcing, a term coined by Jeff Howe of Wired magazine in 2006 to describe a business model in which online providers (platforms) outsource everything from project financing to the performance of specific tasks to large groups of individuals (crowds).  Examples of crowdsourcing platforms disrupting established business models include Uber and Lyft (taxi services) and airbnb (hotels).  Jeff Bezos, the CEO of Amazon.com, has stated that it is his ambition to use the provision of “humans as a service,” his term for crowdsourcing, to disrupt all types of conventional industries.

From the consumer’s perspective, the sharing economy offers several advantages, notably more providers of services at a lower cost, and the opportunity to incentivize better service through rating systems.  From the service provider’s perspective, the sharing economy also offers concrete benefits, such as the possibility of earning extra income, greater flexibility in the scheduling of work, and the opportunity to be one’s own boss by becoming a “micro-entrepreneur.”  However, as Prof. Prassl noted, the sharing economy is analogous to an iceberg.  The benefits are readily apparent on the surface, but hidden dangers lurk below the waterline.

The biggest downside of the sharing economy for service providers is that there is no guarantee that steady work will be available when needed.  Even when work is available, competition may drive down the price that providers can charge.  Thus micro-entrepreneurs may find themselves working long hours for low, unpredictable pay.  Micro-entrepreneurs also face legal uncertainties.  Will they be eligible for workers’ compensation if they are injured while performing a gig?  Not if they are classified as independent contractors, rather than employees.  What about liability insurance for negligent acts?  Most individual auto insurance policies don’t provide coverage when an Uber driver uses her vehicle to carry passengers for hire.

Consumers also face hidden downsides.  Rating systems are subject to manipulation and don’t guarantee good service.  In addition, platform owners, such as Uber, almost always require users to not to hold them liable for the negligence or fraudulent conduct of service providers as a condition of downloading the platform owner’s app.  Few users bother to read this fine print before downloading.  Consequently, a platform user who is injured or defrauded by a service provider may have no recourse other than to sue the service provider as an individual, rather than the platform owner with the deeper pockets.  If the service provider isn’t covered by liability insurance, there is a real danger that he may turn out to be judgment-proof.

Platform owners insist that they should not be subject to conventional employment laws because their new technologies are transformative.  Uber, for example, is actively lobbying to exempt itself from being subject to minimum wage and unemployment insurance laws.  Professor Prassl contends that, from a legal perspective, “gigs,” “tasks,” and “orders” are indistinguishable from conventional employment.  The technology may be novel, but the issues that it raises are not new.

The sharing economy can be seen as the continuation of longstanding trend among employers to shift more and more risks on to workers.  Individuals may find themselves working almost non-stop during periods of high demand, or risk being dropped by platform owners if they fail to make themselves available, and then go for long stretches with little or no work when demand is low.  Thus fluctuations in the business cycle are now born by workers rather than employers.  These practices undermines the conventional social contract whereby employers make long-term commitments to employees, providing them with a steady income and benefits, in return for a stable, better trained, and more highly motivated workforce.

Moving forward, the challenge will be to bring the new employment opportunities created by the sharing economy within the legal framework of conventional employment law.  Platform owners need not be required to provide the same level of legal protections and benefits to service providers that would be expected of a conventional employer, but some baseline level of protections and benefits should be required in order to create a more level playing field among conventional businesses and novel service providers.

#IALL2016 Recap: Guy Goodwin-Gill on Refugee Law

Goodwin-Gill 2
By: Amy Flick

Our program on Wednesday, August 3 included a program on “International Refugee Law: Where it Comes From, and Where It’s Going.” This was a timely topic this year, and our speaker was an expert on the subject.  Guy Goodwin-Gill practices as a barrister from Blackstone Chambers in London and has served as Legal Adviser in the Office of the United Nations High Commissioner for Refugees, as an advisor to United Kingdom Parliament Committees on asylum and immigration control, as Professor of asylum law at the University of Amsterdam, as Professor of international refugee law at All Souls’ College of Oxford University, and as founding editor and Editor-in-Chief of the International Journal of Refugee Law.

Goodwin-Gill noted that refugee law developed along with international organizations, so he began with historical background as important to understanding refugee law. The first High Commissioner for Refugees, Fridtjof Nansen, was appointed when the International Committee of the Red Cross wrote to the League of Nations in 1921 about Russian refugees needing attention in the displacements that followed World War I and the Russian Revolution. Nansen identified identification documents as a primary need to allow refugees to travel and find work, so he persuaded states to issue “Nansen passports.” Rather than returning refugees to dangerous environments, he concentrated on allowing states to allow resettlement and employment. The earliest refugee law focused on Russian refugees, but there were three million refugees in need of resettlement after World War I. Aid was provided in a piecemeal fashion as individual groups in need were identified.

In 1933, the League appointed James Grover McDonald as High Commissioner for Refugees to work with the growing number of Jewish refugees from Germany. He found that governments were unwilling to deal with the causes of the refugee crisis and resigned in 1935, with a famous letter of resignation, noting that “conditions in Germany which create refugees have developed so catastrophically that a reconsideration by the League of Nations of the entire situation is essential.”  Goodwin-Gill asserted that the challenges of earlier decades in refugee law are still those of today, where governments need to lead the way and do not.

In 1946, at the first session of the United Nations General Assembly (at the Central Hall Westminster in London), the refugee problem was the second most debated issue, after peace and security. Refugee law “took off” in 1948 with the Universal Declaration of Human Rights and its recognition of the right of persons to seek asylum. Politics are always involved in refugee law, and early refugee law was informed by Cold War politics, with United States policy important in setting the direction of the law. The 1951 Convention on the Status of Refugees was adopted by a United Nations conference and was signed in July 1951. Goodwin-Gill pointed out that the convention is on the status of refugees, concentrating on how refugees are treated, not on the bigger picture of the conditions creating refugees. States sought to limit their obligations, and definitions of who is a refugee were limited to those outside their own country, with a well-founded fear of persecution.

Goodwin-Gill began work with High Commissioner Sadruddin Aga Khan in 1976, and he recommends Aga Khan’s lectures on refugee law at the Hague Academy of International Law as reading for law students. Under Sadruddin Aga Khan, the UNHCR expanded its jurisdiction beyond Europe, encouraged self-sufficiency, and encouraged repatriation and aid to refugees who do return. States were still reluctant to recognize the reasons for refugees to remain, and Aga Khan encouraged mediation of international disputes and recognized that underdevelopment is as much of an issue as conflict. As co-chairman of the Independent Commission on International Humanitarian Issues in 1986, Aga Khan pushed for a new international humanitarian order, with a report on international cooperation to avert new flows of refugees that Goodwin-Gill recommends.

Before the 1980s, there was little writing on “aliens” and the movement between states, but in the 1980s there was an explosion in the literature on refugee law, including Goodwin-Gill’s own book, a fourth edition of which is in the works now.  There was also an explosion of jurisprudence on refugee law that hadn’t existed before, but states wanted procedures for determining refugee status.

In current refugee law, Goodwin-Gill finds that there has been an over-judicialization of refugee law, approached on a case-by-case basis. Human rights jurisprudence has contributed to more progressive thinking on refugees, with human rights law, international humanitarian law, and refugee law all cross-referenced.

The challenges of 2016 include the inability of the European Union states to develop a coherent response to the crisis, which is smaller than earlier crises like that of the 1930s. EU states have been reluctant to provide practical help, wanting someone else to be responsible.  Goodwin-Gill argues that there is need to focus on the practice of states. There should be collective action of the European Union, which has principles of cooperation in its treaties. Its failure to respond has left people in limbo and has been a major political failure. The European Union has promised migration agreements to developing countries but has failed to deliver. Forty years after his work with the UNHCR, the world is facing the same challenges. How Europe, and the world, work through the current issues will influence the future of refugee law.

#IALL2016 Recap: Diversities Among Common Law Countries

By: Julienne Grant

On the morning of August 1, Professor Francis Reynolds Q.C., Emeritus Professor of Law at Worcester College (University of Oxford), began the 2016 IALL Course with a talk on “Diversities Among Common Law Nations.” As indicated by the speaker, the purpose of the presentation was to provide only general observations of differences between selected countries following the common law tradition.

Before proceeding into the main content of his lecture, Professor Reynolds made a brief detour to define common law. According to him, the common law is a legal system wherein the application of law does not begin with a code, but rather a corpus of prior court decisions that judges utilize to reason by analogy.  In defining common law, the speaker also contrasted it with the civil law tradition, suggesting that the methodology is the same, but the technique is different; that is, the two systems differ in their treatment of precedent.

Professor Reynolds next segued into a general examination of the development and use of common law in various jurisdictions.  The speaker posited that the common law itself is largely an English invention that is now utilized in numerous countries across the globe, although its functionality varies.  The speaker emphasized that there is really no such thing as British law, as Scotland has its own legal system. He said that the term “U.K. courts,” however, can be accurate in the right context and noted that there is now a U.K. Supreme Court that has been operational since 2009.  The professor contended that the use of common law in the U.S. departs from that utilized in the U.K., partly because of the U.S.’ sheer size and geography.

Turning to Australia, the speaker specified that there is also no general Australian law and that emphasis there is on court opinions emanating from the states of Victoria and New South Wales, with the latter decisions being “more adventurous.” Professor Reynolds observed that the High Court of Australia, the country’s final court of appeal, has been reducing the number of categories of law as of late.  The professor also mentioned the 1974 Trade Practices Act, specifically §52, which created a new form of liability for deceptive conduct in the consumer protection context, along with a new remedy.  Focusing next on New Zealand, the speaker asserted that legal reform began there in earnest in the 1970s, specifically referencing the 1970 Illegal Contracts Act and the Contracts (Privity) Act of 1982.  Professor Reynolds noted that not all of the attempted legal reforms have been successful in that country, although these types of changes are generally easier to implement in smaller jurisdictions.

Moving to Hong Kong, the speaker indicated that the Court of Final Appeal there is a bastion of the retention of common law values. The Court, which is Hong Kong’s highest appellate court, has a high standing in the common law world.  He noted that there is increasing use of Chinese in the lower courts, which begs the question, can the common law be applied successfully in a language other than English. Turning to Singapore, the professor explained that there has been an increasing amount of commercial law litigation there in the past ten to fifteen years.  In Singapore, there is no third tier appellate court of review, and the country is currently experimenting with a new International Commercial Court.

Professor Reynolds conceded that he did not have a clear view of the common law in Canada, a statement that prompted laughter from many audience members.  He suggested that Canada is another example of where common law is utilized in a jurisdiction where its linguistic tradition is not exclusively linked to the English language.  He also briefly touched upon India, where he maintained there are serious delays in the judicial system and outdated codes. The speaker also mentioned the Judicial Committee of the Privy Council (JCPC), which he contended does not have enough vision, although there are still some important cases emerging from the JCPC.

The speaker closed his talk with a brief look at the current status and future of the common law. Overall, Professor Reynolds views it as a satisfactory method for private law cases and stipulated that the common law would be difficult to change, as its legal methodology is essentially a cultural matter. In addition, he pointed out the increasing popularity of international commercial arbitration, concurrently noting that the common law is often applied in that context.  Regarding the latter, he referenced recent developments in Singapore, Dubai, and Abu Dhabi.  Professor Reynolds concluded that the common law is indeed still vigorous and internationally viable.

Several attendees subsequently added to the discussion with information, questions, and comments. Professor Reynolds’ paper on his presentation topic will be published in a forthcoming issue of the International Journal of Legal Information (possibly in January 2017).

#IALL2016 Recap: The Role of Human Rights in Re-Shaping Investor-State Arbitration

IALL Oxford KebleBy: Herb Somers

On Wednesday afternoon, August 3 at 14.00, Susan Karamanian, Associate Dean for International and Comparative Legal Studies at the George Washington University Law School, began her lecture by describing the process of investor-state arbitration, which is a system under international law that provides an investor an avenue to adjudicate disputes (through international arbitration) against a foreign government. This alternate dispute resolution system exists outside the court systems of the home or host state. The adjudicating body is a panel of three arbitrators chosen by the parties according to the provisions of the investment agreement. Typically, one arbitrator is chosen by the investor, one by the host state, and a third by agreement of the parties.

Such dispute resolution procedures can be found in a multitude of bilateral investment treaties (BITs) between individual countries, as well as in some international trade agreements such as the North American Free Trade Agreement (NAFTA). These agreements typically authorize the investor  (the home state party) to request an arbitration  when there is a violation of the BIT by the nation in which the investment is located (the host state). A typical BIT will provide the investor protection against expropriation without due process, most favored nation status as well as other equal protection provisions and general guarantees of fair and equitable treatment. The investment treaty also allows the investor to choose from an array of arbitration rules such as those used by the International Centre for Settlement Dispute (ICSID), or the UN  Conference on Trade and Development UNCTAD).

The selected arbitrators in a specific case must decide all issues in accordance with the chosen arbitration rules and they must also adjudicate the dispute consistent with the treaty provisions at hand and  all applicable rules of international law. There are no explicit rules of precedent that are used by the panel, but a de facto system of precedent has emerged where arbitrators look to the decisions of previous bodies deciding on similar factual and legal issues. A common criticism of such arbitrations is that they are cloaked in secrecy due to the confidential nature of arbitration as a dispute mechanism.  Until recently, it was difficult, if not impossible, to obtain the award of an arbitral panel in a given case. However, later agreements have provided more transparency in the process of investor-state dispute resolution.  Critics have also argued that such arbitrations are not bound by rules of judicial fairness and have no mandate to follow prevailing international human rights and environmental norms. Critics of investor-state arbitration have also decried the decisions of panels that have allowed states to face liability when investors have attacked environmental and health laws of the host state.

Karamanian believes that international human rights law can re-shape the process and address many of the concerns about investor state arbitration voiced by critics.  She enumerated several reasons why this is true.

First, transparency issues have begun to be addressed. The secrecy surrounding earlier investor-state arbitration have given way to more open procedures. For example, the 2004 U.S. Model BIT allows for amicus curiae briefs and all documents relating to a particular investor-state dispute must be publicly available. Similarly, ICSID requires that all requests for arbitration must be made public. A majority of ICSID awards are disseminated publicly, and for those that are not, excerpts are provided.

Human rights principles may also be applicable to the dispute and can be raised by the parties in several ways. Based on the law and the arbitration rules in a particular dispute, international law may be controlling. In NAFTA Chapter 11 arbitration, the principles of the NAFTA agreement and international law explicitly apply to a particular dispute in that venue. Similarly, in ICSID arbitration, absent governing laws, international law applies as well, thus providing avenues for raising international human rights issues. Also, when national law applies, a monist state may raise international law as integral part of its domestic law.

Other international law principles also direct arbitrators to recognize human rights protections. For example jus cogens  (non-derogable norms of international law) are given precedence over the obligations present in an international investment agreement. This rule is derived from article 53 of the Vienna Convention on the Law of Treaties. Provisions of the United Nations Charter may also apply such as Article 103, which provides that in the event of a conflict between a state’s obligation under the Charter and that of a treaty, the conflict should be resolved in the favor of Charter obligations, which include the advancement of human rights principles by member states.

The Vienna Convention on the Law of Treaties can also be applied as an interpretative tool by arbitrators to divine the meaning of provisions in a given investment agreement. Article 31(1) of the Convention requires an arbitral body to interpret “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose.”  It is from this interpretive provision that the text of a given investment treaty can be read to infer international human rights protections despite not being explicitly mentioned within the document.

Finally, the investment treaties themselves have also begun to protect the prerogatives of states to regulate health, safety, and environmental concerns and limit their liability under a investment agreement. The 2012 U.S. Model BIT, for example, excludes “ non-discriminatory regulations that are tailored to protect public health, safety, and the environment.” Other provisions in concluded BITs also protect a state so that it may fulfill its duties to maintain or restore international peace and security.

While recent decisions of investor-state arbitral tribunals  have recognized a state’s legitimate right to protect the health and welfare of its citizens without liability to a foreign investor, much work needs to be done. Ultimately, this process of integrating human rights norms into investor-state arbitration will require arbitrators who are knowledgeable of the relevant law and willing to apply the norms of  international human rights and other international standards to the disputes before them. Law librarians will play a vital role in this process by making these materials readily accessible and by sharing their reference expertise with lawyers in the field.

 

#AALL2016 Recap: Roman Law, Roman Order, and Restatements

By: Jennifer Allison

Although the title of this program promised content about Roman Law, this program actually was a bit more focused on digitization of library materials, especially materials and collections that are unique and important to researchers.  For both presenters, preserving materials is only one of several goals of library digitization projects.  Both had found that, perhaps, a more important goal is fostering and optimizing the connection between people and materials.

justinian

 

Marylin Raisch, a long-time member of the FCIL-SIS, served as moderator and employed a question-and-answer format for Professor Kearley’s discussion, which was both highly effective and quite enjoyable.

Marylin’s knowledge of many topics, including Roman law and U.S. legal history, is quite extensive, and she probably could have offered an informative and interesting program on this topic all on her own.  However, she really allowed Professor Kearley’s knowledge, expertise, and passion for the subject to shine through.

Beginning around 1920, Wyoming Supreme Court Justice Fred Blume, an expert in Roman Law, began work on his English-language annotated translation of the Codex of Justinian.  Transcripts representing various stages and versions of this translation are in Justice Blume’s papers, which are held by the University of Wyoming Law Library. Professor Kearney oversaw and edited the digitization and publication of this manuscript collection, both editions of which are hosted on the University of Wyoming Law Library’s website.

Justice Blume’s personal history, as described by Professor Kearley, provided some fascinating background on his translation projects.  Justice Blume, who immigrated to the United States at age 12, learned Latin in high school and ended up graduating Phi Beta Kappa with a BS in philosophy.  While he did not have formal legal training, he read law in a law office, eventually becoming a lawyer, judge, and politician in Wyoming.

Throughout his life he had a deep interest in Roman legal materials, and decided to translate ancient Roman legal codes after he tried to order English translations of them from book publishers and was told there were none available.

Justice Blume was, as Professor Kearney explained, not alone in the American legal community when it came to his interest in Roman law.  During the early 19th century, many U.S. legal scholars studied Roman legal materials as a part of a larger movement toward exploring the codification of U.S. law.  Although that movement had receded by the end of the civil war, there was a renewed interest in using a Roman or civil law taxonomy as a means of classifying the law in the early 20th century, especially as it related to the American Law Institute’s project on legal restatements.

andrew jackson

As Professor Kearney pointed out, the early 20th century saw a “Jacksonian” anti-elitist movement similar to that which is taking place today.  To that end, Justice Blume took care to not discuss Roman law on the bench when he served as a justice on the Wyoming Supreme Court.  However, as Professor Kearney mentioned, among lawyers of a certain sensibility during that time, the language of Latin and Roman law served as an “old-school tie they waved at each other.”

Professor Kearney concluded by discussing the decision he made to include versions of Justice Blume’s work in manuscript form, which includes marginalia and other notes that make it hard to read, in the digital archive.  The advantage of including this as well is to create a real connection between the work and the researcher.

This conclusion created a nice tie-in to Angela T. Spinazzè’s presentation, in which she provided a more general discussion of establishing and managing digitization and digital archives projects.    Ms. Spinazzè focuses on three categories of questions: who, what, and how.

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  • First, in response to “who,” she considers who the intended audience is, which focuses the work and allows for coalescing around a shared conclusion. This also helps illuminate biases and assumptions.
  • Next, she thinks about the question of “what.” This means considering what the digitization project is intended to accomplish, and what the consequences would be of not digitizing the materials.
  • Finally, the “how” question focuses really on the materials themselves: how should what you are digitizing be presented to target audiences, and, perhaps unexpectedly, how will the digitization project advance the purpose of the organization? Can it, for example, foster greater collaboration across more institutional departments?  Is a natural outcome of the work the identification of more shared activities across the organization?

Ms. Spinazzè then provided two examples of digitization projects, the Oriental Institute  at the University of Chicago, and the HEIR (Historic Environment Image Resource) at the University of Oxford.  Both of these projects provided unique and illuminating answers to the questions of who, what, and how that really illustrated the effectiveness of the methodology.

The Oxford project sounded particularly interesting.  It saved from destruction a collection of lantern slides and glass plate negatives that had been abandoned in an archive. As it turned out, in addition to saving the original materials, the digital library also provided a wiki-like forum in which researchers and scholars could tag the images (using a controlled vocabulary) and provide new content of the scenes as they had been re-photographed over time.

Overall, although the program was not exclusively about Roman law, it provided a thoughtful forum for contemplating the values of digital collections, and provided insight into how the audience could consider undertaking similar projects at their home libraries.

#AALL2016 Recap: Measuring Impact for Faculty Scholarship and Beyond: A Case Study from the University of Chicago

 

chicago unbound

By Alexis Fetzer

On Sunday afternoon, July 17, BePress sponsored a two hour session (with refreshments) featuring Sheri Lewis and Thomas Drueke of the University of Chicago D’Angelo Law Library, who presented on how they track the impact of faculty scholarship and other online publications using the BePress product, Digital Commons.

Lewis and Drueke began their presentation with a brief overview of their institutional repository program. The law school first licensed Digital Commons, an institutional repository software, in December 2012.  In the summer of 2013, the D’Angelo Law Library, using Digital Commons software, created “the mothership”, a database that stores faculty scholarship.  In January 2014, the University of Chicago Law School and the D’Angelo Law Library, officially launched Chicago Unbound, a site in the Digital Commons platform.

Chicago Unbound includes full text journal articles, working papers, other publications, and the table of contents of some journals. It provides citations for other publications with OpenURL links and links to the Library Catalog.  At the time of this presentation, the platform includes over 23,000 citations, 9,000 PDF’s, all six journals published by the Law School, three working paper series, two law school publications, and four lecture series. The site reached 1,000,000,000 downloads as of April this year.

Lewis and Drueke said there are two ways to think about the impact of Chicago Unbound: externally and internally. Drueke presented on the external impact as reflected in metrics such as number of downloads or links provided in outside sources.  He posed the questions “what do these metrics mean?” and “what is the impact of having this information available?” He defined external impact in three different aspects, (1) discovery and use, (2) quantitative, and (3) qualitative.

By reporting on these metrics, they have discovered repository links to faculty work in online books and journals, syllabus and course materials used by students and teachers, government units and policy organizations, news sources, industry reports, comment sections and internet arguments. Drueke noted that some of these links are humorous. One faculty member’s work was even cited in an online article titled “The 50 Juiciest Parts of the 50 Shades of Grey”.

Lewis discussed the internal impact of the institutional repository. One interesting feature is that it links directly to faculty webpage biographies. The storage database (“the mothership”) is used to populate Chicago Unbound as well as faculty pages on the law school website. This generates custom lists for individual faculty members seamlessly. Another internal impact is that repository creates a centralized location for many integrated law school administrative processes. In addition to the faculty scholarship listings, the repository is a space for posting working papers and material for the various law school journals.

In the future, the repository will also serve as a location for archived historical materials as well as student work and publications from former faculty members. Another new development is the more recent relationship between the law school repository and the University’s new institutional repository. The law school’s Chicago Unbound project began before the greater University acquired their own institutional repository and the two entities are working together to determine what their relationship should look like going forward.

 

 

 

A Snapshot of Indonesian Law (and Indonesia) & the FCIL-SIS Throws a Party

By Julienne Grant

Rheny3Dr. Rheny Pulungan, recipient of the 2016 FCIL-SIS Schaffer Grant, gave a fascinating presentation on July 18 entitled “The Legal Landscape in Indonesia:  Limitations and Possibilities.”  This was actually Dr. Pulungan’s first time in the United States, and she admitted to being a little overwhelmed.  She was headed to NYC after her Chicago visit.

Dr Pulungan began her presentation with a quiz for audience members, “Fun Facts About Indonesia,” which tested us on our basic knowledge of the country, such as the number of islands (around 18,000);  population (about 250 million); and official religions (Islam, Hinduism, Buddhism, Protestantism, Catholicism, and Confucianism). Needless to say, the attendees were a bit stumped and surprised at the answers. The speaker also showed a slide of Indonesia embedded on a map of the United States, and many of us were astonished to see what a large geographic area the country spans.

Indonesia’s legal system is complex, with civil law attributes resulting from the archipelago’s time under Dutch rule.  One region, Aceh, applies Shariah law. Since 1945, Dr. Pulungan explained, Indonesia has been creating its own laws. Starting in the 1970s, efforts began to create a national legal information center that would make Indonesian laws more accessible, and beginning in 2004, laws and court opinions have been regularly posted on Indonesian government websites.

The speaker next turned to Indonesia’s judicial system. At the trial level are 250 district courts, appellate level high courts number 30, and the Indonesian Supreme Court is a court of cassation. There are also specialized courts, including religious courts and military courts, as well as a constitutional court.  The Supreme Court has a website where its decisions are posted, although none are translated into English. Dr. Pulungan described the search functionality of the site as being mediocre and indicated that the Supreme Court does publish a small number of its decisions in print.  In 2012, as part of USAID’s Changes for Justice Project, an electronic case tracking system (SIPP) was established that was designed to promote judicial transparency.  According to the speaker, it is possible to search by case number or party name to locate information.  Dr. Pulungan also noted that court decisions at all levels must be uploaded within three days of rendering.

Decisions of the Constitutional Court (established in 2001) are translated into English and available on the Court’s website.  The Constitutional Court is not an appellate court and its authority is vested in the third amendment to Indonesia’s Constitution.  The Court’s database can be searched by multiple variables, including case number, case name, applicant names, and keywords.  The Constitutional Court’s role is “The Guardian of the Constitution.”

According to Dr. Pulungan, Indonesian legislation is relatively easy to find online, but locating official English translations can be difficult. There are several databases of note that contain Indonesian legislation: the State Secretariat Database (updated daily); Lexadin; some UN agency websites (such as UNODC); and Hukum.  Hukum is the only commercial database available for Indonesian law in both English and Indonesian.

The speaker next turned to secondary sources.  She recommended Cornell University’s “Southeast Asia Program” website and a quarterly publication called Inside Indonesia. She also mentioned the English-language law journal, Indonesia Law Review , which is open access, and the Australian Journal of Asian Law that is hosted on SSRN. The Jakarta Post covers legal news and developments, and Dr. Pulungan also noted the “Indonesia at Melbourne” blog and the website of the University of Melbourne’s Centre for Indonesian Law, Islam and Society.

The speaker closed her talk by emphasizing that translating Indonesian legal materials into English is inherently difficult.  She provided an example of a phrase in Indonesian translated into English by Google Translate as “hiking education,” while a UNESCO document translated it as “educational streaming.” She advised attendees to search for more than one English translation. Dr. Pulungan has created a LibGuide on Indonesian law and told audience members that she was available via email for assistance.

A question from the audience was raised about religious courts, which she explained are unique and preside over family law matters. As an aside, the speaker mentioned that Indonesian couples who marry must be of the same faith; Dr. Pulungan’s husband is Australian, and he had to convert to Islam for a day in order for the marriage to be legal in Indonesia.  Another attendee asked whether any Indonesian court decisions are precedential. There is no precedent, she said, but Supreme Court decisions include practice notes that can influence lower courts.

ReceptionAfter Dr. Pulungan’s excellent talk,[1] audience members headed to the FCIL-SIS reception for foreign visitors.  The reception was well attended, and I enjoyed chatting with FCIL colleagues there. Keith Ann Stiverson, 2015-2016 AALL President, welcomed the guests and announced the numbers of foreign attendees:  27 from Canada, 17 from the UK, 2 from Australia, 1 from Hong Kong, 1 from Ireland, 2 from South Korea, and 1 from Switzerland.  Ms. Stiverson’s remarks were followed by a few words from IALL President Jeroen Vervliet (Peace Palace Library). Mr. Vervliet related his adventures in Hyde Park at the University of Chicago’s Oriental Institute and Frank Lloyd Wright’s Robie House. He also announced that the International Journal of Legal Information has a new publisher (Cambridge) and a new look. Mr. Vervliet presented a copy of the new issue to editor Mark Engsberg (Emory U) who had not yet seen it. Overall, it was a great party, although I admit I could have used a few more coconut shrimp.

 

[1] I will also add that Dr. Pulungan made a fashion statement with her dress constructed with fabric covered with images of books. Loved it.