Monthly Archives: June 2016

International Commercial Arbitration: the removal of arbitrators for apparent bias

By Prof Jonathan Hill, Professor of Law (University of Bristol Law School).

iba1It is a fundamental principle of arbitration law that arbitrators – whether appointed by one of the arbitrants, by the arbitrants jointly or by a third party (such as an arbitral institution or a national court) – must be impartial. This principle is enshrined in institutional arbitration rules and national legislation. It is, therefore, not surprising that, when doubts as to an arbitrator’s impartiality arise, one of the arbitrants will seek to have the arbitrator removed. The importance of the parties’ right to challenge an arbitrator on the basis of justifiable doubts as to the arbitrator’s impartiality is illustrated by the recent decision of the High Court in Sierra Fishing Co v Farran [2015] 1 All ER (Comm) 560. The decision is notable in two respects.

The significance of the IBA Guidelines on Conflicts of Interest in International Arbitration

Because, in international cases, arbitrants and arbitrators often come from different countries and different legal traditions, they may have different conceptions of what types of circumstance give rise to a conflict of interests and different assumptions about how any such conflict might be resolved. The IBA guidelines, which were originally formulated in 2004 and have been subsequently revised (most recently in 2014), aim to assist the arbitration community by providing a typology of different kinds of conflict and a system for grading their seriousness. The guidelines list a wide variety of professional, financial and personal connections and place them in three lists: red (split into waivable and non-waivable); orange (waivable); and green (irrelevant). Since their inception, the guidelines have frequently been used by arbitrators (in assessing what circumstances need to be disclosed prior to appointment, or thereafter) and arbitral institutions (when determining challenges under institutional rules).

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Brexit may have negative effects for the control of public expenditure, particularly regarding subsidies to large companies

By Dr Albert Sanchez Graells, Senior Lecturer in Law (University of Bristol Law School).

image028In the current state of turmoil, it is difficult to speculate on the exact relationship between the EU and the UK that can result from the Brexit vote and the future negotiations to be held under Article 50 TEU, in case it gets triggered. However, in order to contribute to the debate of what that relationship should look like in the interest of taxpayers in the UK, it is important to consider the implications that a post-Brexit deal could have in terms of the potential disappearance of the EU rules applicable to the control of how public funds are spent. A reduction in the control mechanisms applicable to certain types of public expenditure could indeed diminish the effectiveness of policies funded by taxpayers in the UK and create shortcomings in public governance more generally. Continue reading

The law and politics of withdrawal from the EU

By Dr Phil Syrpis, Reader in Law (University of Bristol Law School).

© Alamy / Guardian

© Alamy / Guardian

On Thursday June 23, the people had their say. Over 17 million Britons voted to leave the EU. The outcome was clear, and should be respected.

Nevertheless, the future is shrouded in uncertainty. Months of campaigning failed to produce good answers to what have become urgent questions. The uncertainty relates both to the mechanism of withdrawal, and to the terms of any withdrawal agreement and future trade agreement with the EU.  As no Member State has ever withdrawn from the EU, there are no relevant precedents. This is uncharted territory; these are interesting times. Continue reading

Ellie Butler: child welfare v parents’ rights

By Prof Judith Masson, Professor of Socio-Legal Studies (University of Bristol Law School).

© PA

© PA

In all the commentary on the tragic death of Ellie Butler, there has been very little discussion of the decision made to return Ellie to her parents. This was a truly exceptional decision. Ellie had been living with her grand-parents, her special guardians, for 5 years. She had not lived with her mother since she was admitted to hospital at the age of 6 weeks and never lived with her parents together. Indeed her parents only started living together shortly before she was returned to them. Ellie had had very little contact with her parents; contact had been limited by the court and the mother and father did not attend many of their contact sessions. The people who parented Ellie were her grand-parents; she and her parents hardly knew each other.

Special guardianship orders (SGOs) were introduced in 2002 to provide a framework for permanent care where adoption was not appropriate where children were being cared for within their wider family, as Ellie was, also for older children who have enduring relationships with parents who cannot care for them. Approximately 7,000 SGOs are made each year, around 5,000 in child protection proceedings and 2,000 for children who are not in state care. Continue reading

Brexit: A climactic decision?

By Ms Chris Willmore, Reader in Sustainability and Law (University of Bristol Law School).*

Europaflagge

Europaflagge

With the Referendum being imminent, the Environment has singularly failed to make itself an issue in the BREXIT debate. Yet it is impossible to explore any aspect of environmental law in the UK without encountering European Law.  It is therefore no surprise that environmental lawyers and environmental groups have been queuing up to express concerns about the implications of BREXIT – Margherita Piericcini’s Cabot Institute blog on the impact on wildlife and habitats is an example.

So why has the environment not become a key issue?  I attended the All-Party Parliamentary Climate Change Group’s event ‘A Climactic Decision: Brexit’s impact on the UK’s climate and environment’ at the Houses of Parliament earlier this month in the hope of finding out why. Continue reading

UK Trade after Brexit: Is the WTO a suitable alternative?

By Dr Clair Gammage, Lecturer in Law (University of Bristol Law School).

wto1-color_lAs a regional integration lawyer, I have become increasingly concerned about the arguments put forward by both camps in the Brexit debate which, in my opinion, overlook the complexity of international trade. As the world has become increasingly multilateralised, the power base has shifted from the traditional “sovereign State” toward international institutions and regional organisations. States are no longer the only governing organisations in the international order.

We are witnessing the proliferation of regional trading arrangements and the EU has been a leader in the regional project. Regionalism is the coming together of a group of countries that may or may not be geographically proximate for a common purpose – usually, trade. While the Southern African Customs Union (SACU) is the oldest regional arrangement, the EU is perhaps the best known because of its relative success at economic, political and social integration. The EU remains the biggest global economy and a world leader in the liberalisation of commercial services and investment. Alongside the US, the EU is the largest trade partner for almost every other country in the multilateral trading system. It is a highly diverse and competitive market, and one which is very attractive as a region to other countries.

If the UK votes to leave the EU on 23 June, what will happen to our existing trade deals? The first issue to be addressed is leaving the EU, which is a type of preferential trade agreement in itself: a customs union. Article 50 of the Lisbon Treaty provides the legal basis for exiting the customs union. However, what is not accounted for is the impact that leaving the customs union will have on the concessions the UK currently enjoys by being part of the EU. When the World Trade Organisation (WTO) was created in 1995, the UK had been a part of the negotiations in the preceding Uruguay Round, albeit as part of the EU. In this regard, it is difficult to assess what concessions might be agreed for individual UK membership if Brexit becomes a reality. Negotiations for new concessions and market access might need to be approved by other WTO Members, and their agreement to such a schedule of concessions might not be forthcoming. Continue reading

Legal implications of Brexit on UK Defence Procurement

By Dr Luke Butler, Lecturer in Law (University of Bristol Law School).*

38611963Defence procurement may not be at the top of the Brexit agenda but it has courted some controversy in the press.[1] It has also been considered as part of the broader arguments about the impact of Brexit on the UK’s defence and security posture. [2] This blog hones in on a more mundane but no less important issue: what, if any, are the implications of Brexit for the legal regulation of defence procurement? There are at least two good reasons why it is useful to consider the legal position. Firstly, defence procurement, like public procurement, is now firmly within the legal remit of EU public procurement Directives. There is already an emerging discourse on the implications of Brexit for public sector procurement regulation; a perspective on defence procurement adds a further contribution.[3] Secondly, as will be discussed, the UK’s defence acquisition as a whole is undergoing unprecedented domestic reform. My ongoing research examines defence procurement regulation as part of this systemic whole and which is likely to be impacted by any change to the regulatory environment. Continue reading

Would A Brexit Significantly Change The Way The English Public Sector Buys Supplies And Services?

By Dr Albert Sanchez-Graells, Senior Lecturer in Law (University of Bristol Law School).

download (1)With a few days to go for the all important UK referendum on EU membership, it may be worth focusing the analysis on one of the issues that can affect trade between the UK and the EU to a very large extent: that is, the regulation of public contracts.

There has been some serious thought put into the potential implications of Brexit for the ways in which the UK public sector buys supplies and services—or, in technical terms, on the Brexit implications from a public procurement perspective. Academics, such as Dr Pedro Telles, and practitioners such as Michael Bowsher QC, Peter Smith, Roger Newman or Kerry Teahan have started to reflect on the likely consequences from a legal and business case perspective. Continue reading

Interpreting freedom from religion: A step too far?

By Caroline K Roberts, PhD Candidate (University of Bristol Law School).

crucifix_classroomIf conference themes are any indication of ‘hot topics’ then ‘freedom from’ religion is certainly one. The past year has seen the ‘Freedom of (and from) Religion’ conference at the University of California and the Ecclesiastical Law Society’s ‘Freedom of/from Religion’ conference in London, at which Baroness Hale of Richmond presented the keynote address.  And, in September 2016, the International Consortium for Law and Religion Studies (ICLARS) will be holding the ‘Freedom of/for/from/in Religion’ conference at the University of Oxford.

The language of ‘freedom from’ religion is not, however, just growing in academia. It is increasingly being used by practitioners, organisations and activists in discussions of the right to freedom of thought, conscience and religion. It is often claimed that if there is a right to freedom of religion, there must be an equal right to freedom from religion.

But what does ‘freedom from’ religion actually mean? And does it mean the same to everyone using the phrase? At the Law and Religion Scholars Network (LARSN) Conference, I took the opportunity to address these questions in my paper, entitled ‘Is there a right to be ‘free from’ religion under Article 9 of the European Convention on Human Rights (ECHR)?’. The following is a summary of that paper. Continue reading