Skipped the London Eye, Headed for the UK Supreme Court

By: Amy Flick & Julienne Grant

After IALL in Oxford, some of us seized the opportunity to take a few extra days to explore London. London is full of tourists, and sometimes the lines can be daunting, particularly at sites like the London Eye.  Tourists were not pounding at the doors of the UK Supreme Court, however, which made for a very pleasant visit.  Several of us opted for guided tours and also explored the excellent exhibition in the basement.

The UK Supreme Court has only existed since October 2009 per the Constitutional Reform Act 2005. Final judicial authority for the UK was previously vested in the Appellate Committee of The House of Lords, its members serving as judges known as Law Lords.  When the UK Supreme Court opened for business, the 12 Law Lords became the first sitting UK Supreme Court Justices. According to the Court’s website, the Court was “established to achieve a complete separation between the United Kingdom’s senior Judges and the Upper House of Parliament, emphasizing the independence of the Law Lords and increasing the transparency between Parliament and the courts.”

The UK Supreme Court is housed in the former Middlesex Guildhall, which sits on Parliament Square, across from the Houses of Parliament and next to Westminster Abbey. Constructed in 1913, the building once served as a Crown Court and was refurbished to house the new UK Supreme Court.  There are three courtrooms in the building with the first being the largest and most traditional in appearance. The second courtroom is sleek and modern, and its glass back wall is etched with an Eleanor Roosevelt quotation. Court 3 is used by the Judicial Committee of The Privy Council (JCPC).

The 12 Justices sit on panels of five, seven, or nine, with five being the most common. Panels are assigned by the Court’s president, currently the Lord Neuberger of Abbotsbury.  The Court is the final court of appeal for civil cases from all of the UK, and criminal cases from England, Wales, and Northern Ireland. The Court hears around 100 cases a year with about a quarter being criminal, and the rest covering a broad range of topics. The 12 Justices also sit on the JCPC, although other Commonwealth judges may be invited to sit on those panels.  The JCPC docket runs about 50 to 60 cases per year.

Cases can take up to four years to wind through the UK lower courts, but can be expedited if they are time sensitive.  Cases are chosen for a hearing in the Supreme Court if they have an arguable point of law and/or a “general impact on society.” The Court operates from October through the end of July, spread over four terms.  Hearings average between one and five days in length.  One recent, and quite compelling case, involved a transgender individual. In that case, the plaintiff applied for her state retirement pension when she was 60, but was denied as she had not formally applied for a gender recognition certificate.  The Court had not yet decided the case when we were on site, but the judgment came down last week. The Court elected to defer the legal question to the Court of Justice of the European Union (CJEU). One assumes that the CJEU will be out of the picture completely once Brexit is implemented.

The Court’s Justices are selected in a process that is quite different from that in the U.S., which is highly politicized. To be eligible to serve on the Court, a candidate must have served at least 15 years as a “qualifying practitioner” or two years as a judge in the UK court system.  An independent panel of legal and non-legal experts vets and interviews candidates.  The Queen formally makes the appointment.  Mandatory retirement age is 75 for those Justices who were Law Lords, and 70 otherwise.  In the next couple of years, half of the Court will be retiring.  Currently, two Justices are Scottish, another is from Northern Ireland, and the Baroness Hale of Richmond is the only female Justice.  The current lack of diversity on the Court will seemingly be addressed with the forthcoming wave of retirements.

The Court’s elegant emblem includes the blue flax flower of Northern Ireland, England’s Tudor rose, Wales’ green leek leaves, and Scotland’s purple thistle. These symbols are intertwined with a Libra representing the scales of justice, and an Omega, which represents the Court as the final source of justice in the UK.  The Court’s colorful carpeting repeats the emblem and was designed by Sir Peter Blake, who also designed the Beatles’ Sgt. Pepper’s album cover.  The Court’s interior is functional, but also quite attractive; you can even rent out the place for a wedding, dinner, or other event. (Somehow it’s difficult to picture a wild wedding reception taking place here, but anything is possible.)

The Court employs eight Judicial Assistants (JAs)—one permanent, the others serve for one year.  The four Justices with the highest seniority have their own clerks, while the remaining eight share four JAs.  The Justices don’t wear traditional robes in the courtroom and sit on the same level as the parties’ legal teams.  The Court’s usher does wear a gown, and barristers have the option of wearing wigs and robes.  Barristers address the Justices as “Lord” and “Lady.”  Hearings are streamed live and remain on the Court’s web archive for a year.

The Court’s library is generally not open to the public, but we were allowed a visit, hosted very graciously by Head Librarian Paul Sandles (one of two librarians on staff).  The library spans two floors, and the walls have quotations (selected by the Justices) penned by a wide variety of authors ranging from Aristotle to Martin Luther King. The print collection is somewhat limited since most of the Law Lords’ book collection remained on site within the House of Lords. The library concentrates on basic texts on subjects covered in court, adding titles preemptively and as needed. There are some primary and secondary foreign materials. The library’s U.S. Reports set was donated by the U.S. Supreme Court after a visit by the U.S. Justices.

Although the Court tour does not offer the London Eye’s “view you’ll never forget,” it is nonetheless a worthwhile way to spend an afternoon.  In a jurisdiction that can lay claim to the Magna Carta (1215), it is fascinating to get a glimpse of a legal institution in its infancy.

 

#IALL2016 Recap: Precedent and Authority: the Continental Dimension

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By: Jim Hart

Professor Ibbetson began with the point that precedent has not always been a part of English law and has been more a part of Continental law than we think.  He explained that historically, in general, common law precedent focused on law as it was applied in court whereas civil law precedent focused on the principles and rules in the codes.

He began with England because here we’re on fairly familiar and firm ground. Before the nineteenth century there was no strict rule of bindingness and no structure by which courts were only bound by courts above them.  This is not surprising because it was only in the nineteenth century that we began to get enough regular, reliable reports and a clear hierarchy of courts to think of precedents binding on lower courts.

It was only in the seventeenth century that changes in the direction of the modern ways of thinking began to occur.   And it wouldn’t surprise anybody, especially after hearing Professor Baker’s lecture, that a central figure in this process was Sir Edmund Coke.  We need to address three closely related, but separate phenomena.  The first was the practice of following previous cases.  Although this was not new and it probably goes back as far as we think there was a common law system, it became more intense with high quality reports.  It’s probably hard for us to think of the common law without this since we expect judges to act consistently and English law had nothing like the books and rules of Roman law.

The second phenomenon was the development of the idea of authority. Professor Ibbetson paused a minute here before saying something more about it.  Naturally King had authority, sheriff had authority in his county, the bailiff in his bailiwick and so on.  From the late 15th century we begin to see that some texts were considered to have authority, which must mean that they contained rules that had to be followed, just as the instructions of King, sheriff or bailiff.  As the sixteenth century progressed we find it more normal to say that these texts were authority and being authority was something different from having authority. The only books that were authority, of course, were law books.  And increasingly there was a strong focus on decided cases that had been authorities.  I suspect that the development of the idea of authority at that time was related to the differences between Plowden and Dyer’s methods and those of the Year Books although Professor Ibettson did not say so.

And thirdly there was precedent.  Many lawyers had been familiar with precedent having prepared formal documents such as precedents of pleading.  In the early seventeenth century we find special status being given to judicial precedent, that is decided cases and, in particular, decided cases where the reasons had been recorded.  Just as we would say today that judicial rulings and decided cases as precedents were authorities.

This judicial authority developed from the theory of argument by dialectic, which would have been familiar to anyone from a medieval university.  At this time nearly any text could be authoritative.  But there were two categories of authority: necessary and probable.  The best example of a necessary authority was the Bible which was true by definition and any conclusion drawn from it was equally true as long as the argument was validly drawn from premise to conclusion.  Probable authorities were things that were not true in themselves, but might be true.  It was not what learned men said that constituted probable authority, but things like moralizing fables, popular sayings, and customary ways of doing things.  This is the world of the medieval university on the continent and in England.  In the early 16th century, perhaps first in Holland, a specifically legal dialectic began to appear about how to frame a forensic argument.  The argument from authority is the strongest in law (argumentum ab auctoritate est fortissimum in lege), wrote one commentator.  The authorities that formed the basis of the argument might be necessary or probable.  In the medieval university, the theory of authority was based on a tradition that went back to Cicero.  But dialectic and rhetoric were not miles apart.

There was another classical tradition.  This one was traced not back to Cicero, but to Quintillian. And here we find the Latin term, “praejudicia,” which we can translate as precedents.  We’re not sure what Quintillian meant by this term, but it might have meant things that had been adjudged before, the literal translation of praeiudicia.  In the early sixteenth century it was said that auctoritas and praeiudicia were interchangeable terms. We don’t know which of these ideas of legal dialectic were used in England, but we do know that some were.  Moreover as more common lawyers spent time at university, they would have come across Cicero and Quintillian and would be utterly familiar with the basics of dialectic and rhetoric.  We are sure that Coke was familiar with these precise terms when he was at university.  Coke used these two sources explicitly in his writing. Indeed he peppered his writings with quotations and near quotations on authority and precedent.  Coke was quite clear that these judicial precedents were only probable authority.  Although judicial precedent was only probable, it was authoritative in court.  All other things being equal, they should be followed.  But other things were not always equal. So from about 1700, England had a doctrine of precedent that was rooted in dialectical theory.  Notice that this process began about a hundred years before the period covered by Professor Baker and stretched to about fifty years later.

How different were things on the continent?  At first glance they weren’t very different in theory, but they differed in operation.  The writers on legal dialectic in Holland, Germany or elsewhere in Europe were thinking in terms of their own systems, not at all in terms of the unruly English common law.  So the argument from authority would have been utterly familiar.  To continental lawyers some authorities were necessary, in particular the writings of the Roman jurists.  It was laid down in Justinian’s code that they had the force of legislation.  The medieval jurists were not regarded as necessary authorities, but as probable ones and the same applied to all the modern writers.  The best way to influence a judge was to follow a long line of legal opinion.  But the dominant line of legal opinion might be held to be wrong, especially by an appellate court.  Previous cases were a problem.  Another Roman law text seemed to exclude their significance saying that judgments should be made on the basis of a lex rather than an exemplum.  But previous decisions could be distinguished.  What really mattered with previous decisions was that they came from a particular court that was known for its learning or issued its decisions under the name of the monarch or ruler.  It is tempting to conclude that the mass of citations from Roman law was little more than froth.  What really mattered was the jurisprudence of this court.  But we should resist that temptation.  We should say that the previous case showed the issue behind the mass of citation.  These were all probable authorities according to the writers on dialectic.  And the previous case merely showed what the correct path through all these authorities was.  Courts might look at previous decisions, but their decisions were made according to the true law.  Earlier decisions might help them to understand what law lay behind a complex plethora of authorities cited in a present case.  In England we can say that it was the printing of large numbers of reports that was really central in allowing the increase in the use of precedent in the early seventeenth century.

So do we get case reports in early modern Europe?  We certainly do and lots and lots and lots of them.  In Italy by 1600 there were thirty-two separate volumes of reports printed in very large folio volumes.  There was a real difference between these volumes and those in England.   The English reports included the arguments given in court sometimes together with the decision that had been reached, which allowed the successful arguments to be identified so that later readers could identify the reason for the decision and understand what the case was an authority for.  The continental model was different.  The reason for the decision was constructed by the person producing the volume.  In so far as they could be said to be authority, it was probable authority like all the other forms of legal writing that were being produced.

Although it’s anachronistic to make the comparison, the continental reports had the same authority as the textbooks used to elucidate the law whereas the English reports had far greater authority.  The legal systems of Europe of this time were similar and they were held together by the common Roman law.  Professor Ibbetson said that he didn’t think that it was an exaggeration to say that there was so vast an amount of legal literature on the continent in the sixteenth century that one could probably prove an argument and its opposite from it.  There was a crying need for something like the English doctrine of precedent to cut through all this mass.  A couple of Spaniards even suggested that all foreign law books should be burned.  And we do find something similar to the English doctrine, but, in one crucial respect, not identical to it.  We can begin tracing this in Naples in the 1490s; one of their statutes said that decisions of the Sacrum Concilium, the highest court, were given in the name of the prince.  Thus it was said that it was if the Sacrum Consilium’s judgements had been given by the prince himself, i.e. that they had legislative force.  This appeared in one of the most important collections of decisions.  But it did not apply to the most important court of the Roman Catholic Church, the Roman Rota, a court whose reasoning was worthy of enormous respect.  But its decisions were not given in the name of the pope so they didn’t count as legislation.  However, as the sixteenth century progressed all across Europe, decisions of courts were said to have the force of legislation.

One of the best discussions of this issue comes from early seventeenth century Portugal.  The core rule there was something like that of Naples: decisions of the Senate given in the presence of the King were treated as having legislative force since the king was presumed to have approved them.  But the king was not always present.  So further arguments were needed to bolster up the authority of court decisions.

One very important rule, backed up by a Roman law text, said that a rule of custom might displace a rule of Roman law itself since all law ultimately came from the people.  How could you identify such customs?  Decisions of the local court would suffice to do so provided of course that they had come from a court whose decisions were worthy of respect, effectively from a superior court.  Decisions of the Senate were always more or less acceptable.

European legal systems based on Roman law contained a great deal of probable authority, from many thousands of volumes, some of which were very thick.  But when we see citations to previous cases, they are overwhelmingly drowned out by the noise of commentators.  England had hardly any textbooks, but by the seventeenth century judicial precedents contained almost exclusively probable authority in what was a very small number of reports.  The continental doctrine of precedent, on the other hand, had come about differently.  For there the relevant case law in the judgment was necessary authority, which meant that it created absolutely firm binding rules.  The great advantage in the seventeenth century and today in the English doctrine was that it created a great deal of provisional bindingness.  But it was only the decisions of the House of Lords that produced any binding rules and they were relatively few in number.  On the continent Supreme Court decisions have stronger authority, but they lack the flexibility of the English doctrine.  Their very rigidity prevented them from developing into something like the English doctrine.  The continental doctrine lacked the ability to work over a very long time.

Professor Ibbetson followed with a gracious thank you and we with thundering applause.

 

#IALL2016 Recap: Law Reporting in England 1550-1650

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By: Jim Hart

After Professor Reynolds presentation, Diversities among Common Law Nations, Emeritus Professor Sir John Baker and Professor David Ibbetson spoke on the historical development of modern precedent and case reporting.  Although the two differ superficially, they are in fact deeply intertwined.  It may be said that they both spring from the same origin: changes in the theory of authority in the sixteenth and seventeenth centuries.

Professor Baker began with the origins of case reporting in England, as we know it, between 1550 and 1650.  The story begins at the end of the series of Year Books in 1535.  When Edmund Plowden entered the Middle Temple in 1538, he began compiling reports of cases and continued this practice throughout his career.  These reports were published as Plowden’s Commentaries in 1571. They were the first of the nominate reporters and differed in important respects from the Year Books.

Although the Year Books had been anonymous, Plowden published his Commentaries under his own name.  He had found out that someone had quickly and carelessly copied his notes and intended to publish them.  He was forced to publish them under his name to secure the credit for his assiduous work.  Indeed Plowden felt it necessary to apologize for putting out his reports in his own name.

A more substantive departure from the Year Books is his decision to include only considered decisions (decisions of particular importance that set precedent) in his reports.  Although he copied the Latin so that readers could see the pleadings, he translated them into law French because of the wide-spread doubt that the common law could be expressed satisfactorily in English.

But his greatest departure was recording cases after judgment because this is what the profession wanted.  The Year Books had recorded cases before trial, which is why they had not included many things that we now take for granted.   This is why the Year Books seem so inconclusive.  To the compilers of the Year Books, the judgment was considered legally uninteresting in comparison with the material that preceded it such as the pleadings, the issue, the arguments, etc.  At this time the judicial system was not designed primarily to elicit decisions, but to frame the points that were to be referred to a jury.  Judges’ rulings concerned procedure and were spoken in court so they were not available for copying.  By Plowden’s time things had changed.  The profession wanted to know how and why a case ended as it did.  It seems to me that this is the most important point made in Professor Baker’s talk.  For it was the development of the idea of precedent both on the Continent and in England at this time, as Professor Ibbetson was to explain next, that led to the changes in the legal system that the  profession’s need for a new kind of reporter.

Finally there were two other new, important practice adopted by Powden. Unlike the Year Books, Plowden also consulted those who were involved in the case to ensure accuracy and he included the judgment, which the Year Books could not have done because they reported cases before judgment.  The judgments were set in a different type so they wouldn’t be confused with the reports.

Plowden set a high standard and there was never to be another volume quite like it.  Most of what Plowden included is to be found in today’s reports. Indeed Plowden’s departures from the Year Books were the origin of our view of what a good report should include.  What we now call the judgment includes the judge’s informal statement of the case, the facts of the case, the legal question, the arguments presented in court, references to the authorities, and the reasons for the conclusion.

The second most important point that Professor Baker made, in my opinion, was that there was a continuous line of reporting that began with Plowden and continued through Dyer and Coke.  This line formed the tradition that the future nominate reports continued.

The work of the next reporter, Dyer, was published posthumously.  Sir James Dyer began gathering his reports in the 1530s, before Plowden had begun.  He left his manuscripts to his two nephews who were law students.  The published edition was taken straight from Dyer’s notebooks.  Although it included over a thousand entries, it left a lot out, e.g, cases that might embarrass a living person, cases that Plowden had already covered, and matters too sensitive to make public for reasons of state.  Within twenty-five years of their publication, the notebooks were in the possession of Sir Edmund Coke who cited them often.

It was common for judges to keep jottings in notebooks at this time as aids to memory.  The exception to this was Edmund Coke whose work was published in eight volumes.  He began taking notes in the 1570s and began making them available to others in the next decade.  The earlier notebooks were essentially the story of Coke’s rise in the bar.  Coke embellished and amplified on many of the cases.   In 1616 he was charged with inaccurate reporting and assigned to correct them.  Francis Bacon volunteered to help with the task.  In the very next year Bacon was made Lord Chancellor and banned Coke from Westminster.  He did, however, put forward a proposal to hire three lawyers to report on the cases at Westminster at a salary of £100 a year.  Although there were never more than two reporters, Bacon had revived the old custom.  He appointed lawyers to do the reporting because they did a better job than judges.  Before the reports were published, the reporters checked with the judges.  Bacon’s scheme continued Coke’s reports up to 1619 when there was a hiatus in reporting until 1621.

This presentation outlines the origins of the nominate reporters and our own systems of law reporting.  But many of them are still in manuscript form.  As the summary of Professor Baker’s presentation states, “Law reporting was to remain a matter of private initiative until the end of the eighteenth century, and many of the best reports…have still not been published.  Anyone seeking to trace the evolution of a legal doctrine or practice before about 1700 must regard manuscript reports as an essential recourse.”

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

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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

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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: 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.

 

Minding the Gap, Walking Law Books, & the U.K.’s own “Judge Judy”


By Julienne Grant

I spent a few days “minding the gap” in London before IALL started. Caught a show in the West End, walked  through the “Painters’ Paintings” exhibition (wonderful) at the National Gallery, and watched the RideLondon cycling race.  What I’m always drawn to in London, however, is Trafalgar Square. Trafalgar is unlike anywhere else in the world; it has a certain pulse that reflects the vibrancy and diversity that makes London such an incredible place. I could sit for hours and take it all in, from the sidewalk art, to the eclectic mix of rhythms booming from the electronic keyboards of street musicians.
While at Trafalgar, I stepped briefly into the Westminster Reference Library and chatted with the librarian on duty. She explained that the Reference Library has the strongest public collection of legal materials in Westminster (one of Inner London’s boroughs). The Library currently offers access to Westlaw UK, which includes a number of eBooks, such as Chitty on Contracts. She explained that the eBooks are extremely important because the print copies of the same titles tend to walk off.  At the same time, however, the librarian bemoaned the fact that the Library’s funding was being cut, and the Westlaw UK subscription might be discontinued.
While in London, I was also introduced to “Judge Rinder” on the telly.  “Judge Rinder” is a reality court TV show seemingly modeled after the U.S.’ “Judge Judy.” Judge Rinder himself is actually barrister Robert Michael Rinder who has been hearing disputes on this popular ITV series since 2014. According to  HuffPost Entertainment United Kingdom, these disputes “usually revolve around two mates fobbing each other out of money, and other issues with a vaguely legal undercurrent.” For those who are interested in such things, Judge Rinder wears an English barrister’s robe, rather than a judge’s.
More to come from Oxford where we are experiencing a bit of soggy weather, but are grateful for the foresight of the local organizers who provided us with our own Oxford rain ponchos.