North-South Free Trade Agreements – Trade, Policy and Europe

By Dr Clair Gammage, Lecturer in Law, and Prof Tonia Novitz, Professor of Labour Law (University of Bristol Law School).

On 4 October 2017, we held an event at the University of Bristol Law School, funded by PolicyBristol, considering the dynamics of negotiation, implementation, and enforcement of North-South trade agreements.

The first panel (Clair Gammage, Maria Garcia and Tonia Novitz, chaired by Phil Syrpis) examined the external policies of the European Union (EU) particularly in the context of regionalism and free trade agreements (FTAs). The significance of power disparities between trading partners in the negotiation process was considered and it was argued that true ‘partnerships’ in trade will be established through an inclusive and participative approach, as advocated by Clair Gammage in her book on North-South Regional Trade Agreements as Legal Regimes (Edward Elgar, 2017).

The second panel (Emily Jones, Sophie Hardefeldt and Gabriel Siles-Brügge, chaired by Tonia Novitz) examined how the UK could – in the event of Brexit – depart from or improve on the practices of the EU. Issues regarding human rights protections, development and transparency were considered, echoing many of the themes emerging from the discussion of the first panel. Continue reading

On Harvey Weinstein the Sexual Predator, or Business as Usual

By Dr Yvette Russell, Lecturer in Law (University of Bristol Law School).*

By David Shankbone – CC BY 3.0

The last few weeks have seen the revelation that Harvey Weinstein, renowned Hollywood producer of such award-winning films as Gangs of New York, Pulp Fiction, and Shakespeare in Love, moonlighted as a prolific sexual predator. A significant number of women have now made public complaints of sexual harassment and assault against Weinstein, including well-known Hollywood stars Gwyneth Paltrow, Rose McGowan, and Angelina Jolie. Weinstein is also reportedly facing allegations of rape. His wife, Georgina Chapman, announced she was leaving him, the company he co-founded fired him, and police on both sides of the Atlantic have opened investigations into him.

The media discourse that greeted the revelations has been characterised by astonishment at the scale of the alleged offending, and the failure of those making allegations to have come forward sooner. In fact, there is often evidence of a long line of complaints against men who are finally revealed in mainstream media to be chronic sexual predators. In Weinstein’s case there is evidence of three decades of prior complaints by women, at least two of which were reported to police. The public disclosure of these allegations was repeatedly thwarted by the use of non-disclosure agreements, the alleged ‘killing’ of news stories on the topic, and the habitual capacity of those who knew about it to ignore it. In the case of Jimmy Savile in the UK, believed to have preyed unimpeded for 60 years on around 500 vulnerable victims as young as two years old, a 2013 HMIC report found at least seven complaints against Savile in police records since 1964.  Continue reading

A call to stop Brexit

By Prof Phil Syrpis, Professor of EU Law (University of Bristol Law School).

Increasing frustration with the Brexit process has prompted me to write this. I have tried to keep it short. My main argument is that the perceived obligation to implement ‘the will of the people’, felt by a large majority of politicians on both sides of the House, is creating a political, legal, social and economic crisis in the UK.

The time has come to demand that Brexit be stopped. A transition period, in which EU law rights and obligations are maintained for a time, now seems inevitable. Opinion in the country seems, slowly, to be beginning to shift. The sunlit uplands, as we are reminded on all almost daily basis, are no more than an illusion. Policy makers are seeking to find second-best solutions, and engaging in attempts to salvage what they can from existing arrangements (which work, at least tolerably, well). Unless advocates of the Brexit cause can point to political, social and economic benefits associated with Brexit, and unless they can demonstrate, in concrete terms, how these benefits are to be realised – and thus far, they have singularly failed to do so – we should not be prepared to allow them to indulge in their reckless fantasy. Continue reading

Why do proposed national security measures get dropped? The four months after the Paris attacks and the French national debate on cancellation of citizenship

By Miss Rachel Pougnet, PhD Candidate (University of Bristol Law School).

Bourgoin jallieu le 29/12/2015: Photo illustration du code Civil/Credit:ALLILI MOURAD/SIPA/1512301245

On 16 November 2016, three days after the terror attacks in Paris, the then-French President François Holland gathered both houses of Parliament (the National Assembly and the Senate) in Versailles. He started his speech with a grave tone, by noting that “France was at war”, and that the country needed to be “ruthless” in “such times of exceptional gravity”. He called for “national unity” and proposed a revision of the Constitution.

His proposal was to enshrine in the Constitution the procedure of the state of emergency (article 1) and the cancellation of citizenship for dual nationality holders (article 2). As Holland then put it

We must be able to strip the nationality of an individual who has been condemned for acts contrary to the fundamental interests of the Nation or acts of terrorism, even if the individual was born French, and I mean it “even if the individual was born French” so long as the person has another nationality (Holland’s speech, 5).

The proposal was eventually dropped on March 2016, following the failure of both houses to agree on a similar text on article 2, cancellation of citizenship, as required by article 89 of the Constitution. This article spread intense debate across French society and enjoyed widespread press coverage from French newspapers of all kinds. More than ten public opinion polls were issued on the subject and it prompted the resignation of Christiane Taubira, the Secretary of State for Justice. All this for a relatively short debate: 136 days in total.

It is unclear whether this failure can be attributed to the specific political context at the time (a right-wing Senate and left-wing National Assembly, the low popularity of President Holland and the uncertainty of the regional elections (which were to take place in June 2016), to the rigidity of the French Constitution (article 89 requires a majority of 3/5 of both houses gathered together in Congress), or to the importance of citizenship-nationality in the French national narrative. Perhaps the truth lies somewhere in between these lines. But in the broader context of an increase in recourse by states to the deprivation of nationality as a counter-terror measure (see for example the Netherlands or the UK), a closer analysis of the debate around the contested measure is warranted. Continue reading

Re-Imagining Land Law & the SQE

By Prof Antonia Layard, Professor of Law (University of Bristol Law School).

© Neil Howard

On Tuesday, 26th September, 45 self-confessed land law nerds travelled to the University of Birmingham for a workshop on Reimagining Land Law organised by Emily Caroll. The workshop – the latest in a series run by the Centre for Professional Legal Education (CEPLER) at the University of Birmingham – saw thirteen law teachers, a barrister and a judge, presenting on how to teach, assess and craft a syllabus for land law.

While the workshop’s aims were lofty (how do we teach the subject we love most effectively?) there was much debate about the proposals released in June 2017 by the Solicitors Regulation Authority for the Solicitors Qualifying Exam (SQE). The SRA Board has decided to introduce the SQE as a common assessment for all would-be solicitors from late 2020. The new qualification will consist of four elements so that, by the time candidates seek admission as a solicitor, they must: (1) have passed SQE stages 1 and 2, demonstrating that they have the knowledge and skills set out in the competence statement to the standard prescribed in the Threshold Statement; (2) have been awarded a degree or an equivalent qualification, or have gained equivalent experience; (3) have completed qualifying legal work experience under the supervision of a solicitor or in an entity under SRA regulation for at least two years (or full-time equivalent); and (4) be of a satisfactory character and suitability, to be assessed at point of admission. Continue reading

Comparing UK and Irish law: A special relationship?

By Prof Paula Giliker, Professor of Comparative Law (University of Bristol Law School) and former President of the British Association of Comparative Law.

The British Association of Comparative Law (BACL) held its annual seminar, jointly with the Irish Society of Comparative Law, at University College, Dublin on 5 September 2017. The joint seminar was chaired and organised by Professor Paula Giliker. To celebrate BACL’s first annual seminar in Ireland, the seminar reflected on the relationship between UK and Irish law in the fields of land law, banking regulation, language legislation and consumer law.  The seminar was sponsored by publishers, Intersentia.

The seminar sought to examine different features of the relationship between Irish and UK law: the tensions of the past, the similar problems faced by two common law jurisdictions in the light of a global banking crisis, linguistic diversity and demands for consumer law reform and the future, with one jurisdiction remaining within the European Union and the other deciding to leave.  Continue reading

Oration for Lady Hale on the occasion of her receipt of an Honorary Fellowship at the University of Bristol in July 2017

Written and orated by Prof Joanne Conaghan, Professor of Law and Head of School (University of Bristol Law School).

In July 2017, the University of Bristol awarded an Honorary Fellowhip to its former Chancellor the Rt. Hon. the Baroness Hale of Richmond, DBE. Professor Joanne Conaghan, Head of the University of Bristol Law School, had the honour of writing the Oration for Lady Hale.

In her Oration, Professor Conaghan stresses the many strengths and achievements of Lady Hale in a career dedicated to the law as it applies to those most vulnerable, such as in the areas of mental health and family law, and to combat inequality, in particular on the basis of gender. Lady Hale’s achievements are indeed particularly remarkable due to the unequal society she lived in through her early years; a society which she is shaping and pushing for transformation, very soon from the seat of the President of the Supreme Court, to which she has been appointed.

The full text of the oration is now reproduced here as a token of the values that the University of Bristol Law School, as a community, strives to foster. Continue reading

Setting aside of arbitral awards under the Arbitration Act 1996 and the UNCITRAL Model Law on International Commercial Arbitration: failure to deal with all the issues

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

© liza31337 (Flickr)

Back in the 1980s, the Departmental Advisory Committee on Arbitration Law recommended against England adopting the UNCITRAL Model Law on International Commercial Arbitration (‘Model Law’ or ‘ML’). Nevertheless, during the course of the reform process that led to the Arbitration Act 1996, the Model Law played a significant role and its impact can clearly be seen in terms of the 1996 Act’s structure, style and content. Nevertheless, English law retains a number of distinctive features and, even in those areas in which the objectives of the 1996 Act broadly mirror those of the Model Law, there are places where the two legislative schemes diverge.

One significant area of difference is the setting aside of awards. On this issue, the Model Law is, at first blush, simplicity itself. The six grounds for setting aside under art 34 ML replicate bases set out in article V of the New York Convention of 1958 (‘NYC’) on which an award rendered in country A may be refused recognition/enforcement in country B. (For obvious reasons, art 34 ML contains no provision corresponding to art V.1.e NYC.)

The Arbitration Act 1996 approaches setting aside in a very different way. First, in keeping with the traditions of English arbitration law, the 1996 Act provides that, albeit in carefully circumscribed and narrow circumstances, an award may be set aside on the basis that, as regards the merits of the dispute, the arbitral tribunal made an error of English law (s 69). The Model Law, by contrast, follows the modern international practice of making no provision for setting aside because the tribunal did not reach the correct result, either on the facts or the law. Secondly, the 1996 Act separates ‘jurisdictional’ defects (s 67) from ‘procedural’ and other defects (s 68). Thirdly, section 68 lists a total of twelve ‘procedural’ grounds on which an award may be set aside. This contrasts with the ML’s two ‘procedural’ grounds (art 34.2.a.ii and iv). Fourthly, whereas article 34 ML provides simply that an award ‘may’ be set aside if one of the grounds is established (giving the supervisory court a degree of flexibility), an award cannot be set aside under section 68(2) unless the procedural defect relied on by the applicant has caused or will cause substantial injustice to the applicant.

The combined effect of these differences is to produce setting-aside regimes which, although largely seeking to implement the same policies, work in rather different ways. This point can be illustrated by the quite common scenario in which, after an award has been rendered, one of the arbitrants (typically, a respondent whose defence was wholly or partly unsuccessful) challenges the award on the basis that it fails to address an issue which was raised in the arbitration. Continue reading

‘Paid work’ or underpaid labour? The labour exploitation of detainees within immigration detention

By Dr Katie Bales, Lecturer in Law (University of Bristol Law School) and Dr Lucy Mayblin, Assistant Professor in Sociology (Department of Sociology, Warwick University).*

© Chloe Juyon

In June 2017, ten immigration detainees launched a judicial review action against the Home Office challenging the payment of ‘slave’ like wages for labour undertaken within immigration detention.

This practice, termed ‘paid work’ by the Government, is remunerated at a rate of £1.00 or £1.25 per hour and includes work as cleaners, cooks, hairdressers, gym orderlies and gardeners – roles that are essential to the running of the immigration removal centres. In 2014 this practice resulted in 44,832 hours’ worth of work.

In this blog, we argue that this work is exploitative and ‘unfree’. In recognition that many detainees wish to work however, we do not call for an end to this practice; rather we highlight the structural conditions that render detainees more likely to accept exploitative conditions of work (including but not restricted to low pay), and argue that, at the very least, detainees should be provided with the national minimum wage. Continue reading

Half-hearted, half-baked and stuck in the rut of business as usual: The Government’s Response to the Green Paper Consultation on Corporate Governance Reform

By Prof Charlotte Villiers, Professor of Company Law and Corporate Governance (University of Bristol Law School).

The UK currently faces huge economic and political challenges. The Brexit negotiations are clearly of central importance and the outcome will strongly influence our country’s future as a trading nation. Our economic prospects will also be dependent on the strength of our corporate governance system. During the past couple of years, a number of corporate scandals and failures such as the demise of BHS with its huge pension losses and the worker exploitation at Sports Direct as well as continued publicity of ‘fat cat’ executive pay have threatened the reputation of the UKs corporate governance framework. In light of these negative reports a corporate governance inquiry was launched by the House of Commons Committee of the Department for Business, Energy and Industrial Strategy and the Government published a Green Paper on Corporate Governance Reform in November 2016. Despite a busy schedule with Brexit and a slimmed down Queen’s Speech, the Government continues to pursue its plans for corporate governance reform with its publication of a Government Response to the Green Paper in August 2017.

When Theresa May made her speech launching her campaign to become Prime Minister in July 2016 she announced her intention to ‘have not just consumers represented on company boards, but employees as well.’ She repeated the promise as Prime Minister at the Conservative Party Conference in the same year. In that same campaign speech in July Theresa May also noted that during the previous eighteen years executive pay had more than trebled and there was ‘an irrational, unhealthy and growing gap between what these companies pay their workers and what they pay their bosses’. She said that she wanted ‘to make shareholder votes on corporate pay not just advisory but binding’ and ‘to see more transparency, including the full disclosure of bonus targets and the publication of “pay multiple” data: that is, the ratio between the CEO’s pay and the average company worker’s pay’ and ‘to simplify the way bonuses are paid so that the bosses’ incentives are better aligned with the long-term interests of the company and its shareholders.’

Continue reading