Tag Archives: case comment

Standing of the Northern Ireland Human Rights Commission in the UK Supreme Court Abortion Decision

By Dr Jane Rooney, Lecturer in Law (University of Bristol Law School).

In its much-awaited decision on Northern Irish abortion laws, a majority in the UK Supreme Court dismissed the appeal brought by the Northern Ireland Human Rights Commission (the Commission) on the basis that it lacked standing to bring legal proceedings [In the matter of an application by the Northern Ireland Human Rights Commission for Judicial Review [2018] UKSC 27]. Kathryn McNeilly, Fiona Bloomer, and Claire Pierson explain the context and implications of the ruling here. Despite agreement ‘that the current law in Northern Ireland on abortion is disproportionate and incompatible with Article 8 of the [European] Convention’ on Human Rights (see UK Supreme Court press release), the Commission had no standing and therefore the Supreme Court could not make a declaration of incompatibility under section 4 of the Human Rights Act and their statements on rights violations were obiter dicta.

This blog considers the Supreme Court’s adjudication on standing. It argues for a literal interpretation of the Northern Ireland Act 1998 and Human Rights Act 1998 (HRA) to argue that, contrary to the UK Supreme Court’s majority judgment, the Commission is empowered under the Northern Ireland Act to bring proceedings in cases of an unlawful act of a public authority and for review of the compatibility of Northern Irish primary legislation with the European Convention on Human Rights (the Convention). Continue reading

Between Rock and a hard place: MWB Business Exchange Centres v Rock Advertising

By Ms Joanna McCunn, Lecturer in Law (University of Bristol Law School).

Since the 19th century, contract law in England has been strongly influenced by will theory: the idea that all contractual liability is founded on the intentions of the parties. Enthusiasm for this model dipped during the 20th century, as it became clear that many contracting parties were being strong-armed into contracts they only vaguely understood. However, will theory is now back with a vengeance, at least in the commercial sphere. Its implications can be seen clearly in the recent case of MWB Business Exchange Centres v Rock Advertising [2018] UKSC 24, judgment in which was helpfully handed down by the Supreme Court the day after the Bristol contract law exam.

In November 2011, Rock Advertising began to occupy offices which were managed by MWB Business Exchange Centres. Rock were unable to meet the licence fee, and within a few months had fallen into arrears of over £12,000. On 27 February 2012, Rock proposed to defer some of its payments to MWB. The result would be that MWB would recoup the arrears, but at a later date, losing interest on the money in the meantime. In a phone conversation, MWB’s representative initially accepted the proposal. However, after consulting with her manager, she later emailed Rock purporting to reject it. On 30 March, MWB locked Rock out of the office for non-payment of the arrears, and gave notice to terminate their licence. The question was whether Rock could enforce the 27 February agreement. Continue reading

Google: is the competition truly just a click away?

By Ms Beatriz Marques, LLB (Hons) (2011 alumna) (University of Bristol Law School).*

Google has faced heightened scrutiny by numerous competition authorities worldwide since 2007. Most significantly the European Union (EU) fined Google a record €2.4bn ($2.7bn) for abusing its dominant position as a search engine. This blog post examines Google’s recent antitrust troubles in the EU and the United States (US) and analyzes whether the EU fine is likely to ignite further investigations against Google. Continue reading

Withdrawal of same-sex marriage in Bermuda: low hanging fruit in the constitutional living tree?

By Mr Marc Johnson, Teaching Associate in Law (University of Bristol Law School).

© Procsilas Moscas

On 7 February 2018, Bermuda’s Governor approved the Domestic Partnership Act 2017 (DPA) which withdraws the right for same-sex couples to marry in Bermuda. The ‘Domestic Partnership’ purports to offer the same legal standing as marriage though there is a degree of scepticism around whether this will be the case. There is a substantial body of writing in the UK on whether the civil partnerships established under the Civil Partnership Act 2004 were in fact equal to marriage, or whether creating a second form of legal partnership also created a subordinate form of legal partnership.

This may not however, be the end of the story. According to Reuters News Agency, on 20 February 2018, a Bermudian Lawyer has filed a motion asking for the Supreme Court of Bermuda (a court of first instance unlike the Supreme Court of the UK which is the UK’s final appellate court), to consider whether the DPA is inconsistent with the Bermudian Human Rights Act 1981 (HRA). This blog piece will briefly consider whether the Bermudian constitution has been altered by the HRA to include protections for same-sex marriage, to what extent is the HRA constitutional, and can rights given under the HRA be removed. Continue reading

Do arbitral errors on the law governing the merits of a dispute referred to arbitration justify setting aside or non-enforcement of the award?

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

© Pedro Ribeiro Simões

Assume that contracting parties (C and R) agree that their contract is governed by English law and that any dispute arising in connection with the contract should be referred to arbitration. A dispute arises which C refers to arbitration. An arbitral tribunal is appointed and, in due course, the tribunal renders an award ordering R to pay damages for breach of contract. R seeks either to have the award set aside (by the courts at the seat of arbitration under the lex arbitri) or to resist enforcement of the award (in another country under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (‘NYC’)) on the basis either that the tribunal applied French law to the dispute, instead of English law, or that the tribunal decided the dispute ex aequo et bono (ie, by the application of an equitable standard), rather than through the application of legal rules and principles. In such circumstances, does R have a legitimate ground for having the award set aside or for resisting enforcement?

If the seat of arbitration is in a country which has implemented the UNCITRAL Model Law on International Commercial Arbitration (‘Model Law’ or ‘ML’), such as Singapore, Hong Kong, New Zealand, Australia or Canada, this question should receive the same answer whether the context is setting aside or enforcement under the NYC: this is because the grounds for setting aside under article 34 ML are almost identical to the grounds on which recognition and enforcement may be refused under article V NYC. This blog post discusses this issue in depth. Continue reading

Forum shopping for interim measures in international commercial arbitration

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

Interim measures of protection have an important role to play in international commercial dispute resolution. Because of the inevitable time delay between a dispute coming to a head and the resolution of that dispute by arbitration or another formal dispute-resolution process, a claimant (C) faces a number of risks. For example, the respondent (R) may attempt to make itself ‘award-proof’ by hiding or dissipating the assets against which C, if successful in the arbitration, might reasonably hope to enforce the award; or R might take steps to destroy evidence which is crucial to C’s claims; or R may engage in conduct which, if allowed to continue unchecked, will exacerbate the dispute or even render any arbitration of the parties’ dispute nugatory. Because of such risks, most systems of arbitration law confer on arbitral tribunals the power to order interim measures of protection, whose purpose is, depending on the circumstances, to maintain the status quo, provide a means of preserving assets out of which an eventual award may be satisfied or preserve evidence that may be relevant to the resolution of the dispute (see, eg, art 17.2 of the UNCITRAL Model Law on International Commercial Arbitration).

However, conferring powers on the arbitral tribunal may be inadequate. Unlike national courts, arbitral tribunals do not have coercive powers to back up their orders and have jurisdiction only over the parties to the arbitration. Furthermore, if interim measures are required as a matter of urgency, giving powers to the arbitral tribunal is frequently meaningless; once a dispute has been referred to arbitration, it may well be weeks or months before the arbitrators can be appointed. Accordingly, some mechanism is needed to fill the gap between C’s triggering of the arbitration clause and the constitution of the tribunal. The rules of an increasing number of arbitration institutions fill this gap by making provision for the appointment of an emergency arbitrator (see, eg, art 29 of the ICC Arbitration Rules; art 9B of the LCIA Arbitration Rules). Failing such a procedure, the gap can be filled only by national courts.

But, as with many issues involving the relationship between international commercial arbitration and national legal systems, there is a territorial issue to be addressed: which national court (or courts) should be competent to exercise the power to grant interim measures of protection in support of arbitration and which competent court(s) should actually exercise such powers? This is an issue which had to be addressed by the High Court in the recent case of Company 1 v Company 2 [2017] EWHC 2319 (QB).  Continue reading

Challenge to ‘Prevent duty’ in universities rejected in judicial review proceedings

By Prof Steven Greer, Professor of Human Rights (University of Bristol Law School).

On 3rd August 2017 it was announced that, a week before, the High Court had rejected a claim, brought in judicial review proceedings by Dr Salman Butt, that the inclusion of his name in an official press release about tackling extremism in universities and colleges was unlawful and in breach of his human rights (Salman Butt v Secretary of State for the Home Department [2017] EWHC 1930 (Admin)). Relying on information provided by the Home Office Extremism Analysis Unit (EAU), which had opposed the publication of any names, the press release referred to 70 events on university premises in 2014 featuring ‘hate speakers’. However, as the result of an ‘oversight’, six people including Dr Butt, were also identified as ‘expressing views contrary to British values’ on campus. The judgment in this case is the first significant judicial contribution to the debate about the ‘Prevent duty’ created by s.26 of the Counter-Terrorism and Security Act 2015 (CTSA) which requires schools, universities, the NHS and other institutions to ‘have due regard to the need to prevent people from being drawn into terrorism’. Continue reading

Abortion rights in Northern Ireland

A comment on R (on the application of A and B) v Secretary of State for Health [2017] UKSC 41.

By Dr Sheelagh McGuinness, Senior Lecturer in Law (University of Bristol Law School) and Prof Keith Syrett, Professor of Law (University of Cardiff, School of Law and Politics).

The start of June 2017 saw abortion law in Northern Ireland (NI) making the news for several reasons. On June 9th, Theresa May announced that she intended to try and form a government with the Democratic Unionist Party (DUP). Members of this radically conservative party from NI have long been vocal in their opposition to abortion. Some feared that restrictions on abortion legislation might form part of negotiations between the two parties.  On June 13th, the Department of Health published ‘The Report on abortion statistics in England and Wales for 2016’ which contained details on the number of women who travelled from NI to England to access abortion care. Then, on June 14th, the Supreme Court handed down an important decision on NHS funding for women who travel from NI to England to access abortions. These women, save in exceptional cases, must pay for abortion care privately, notwithstanding their status as UK citizens and (in many cases) UK taxpayers. In this blog we examine the Supreme Court decision and the context within which women travel from NI to have abortions in England.

The case

In 2012 A, a 15-year-old girl, became pregnant. She did not want to continue with the pregnancy and with the support of her mother, B, arranged to have a termination in England. A and B were surprised to find out that as A was resident in NI she would have to pay for the termination in England. Believing this to be unfair B, on A’s behalf, started proceedings to challenge the lawfulness of this policy. Their challenge contained two key claims. First, that the Secretary of State for Health was acting unlawfully in refusing to permit women from NI to access NHS funded abortions [the public law claim]. Second, that women in NI were being discriminated against as compared to other women in the UK [the human rights claim].

A and B were unsuccessful in the High Court and in the Court of Appeal. Their appeal to the Supreme Court was dismissed by a majority of 3:2. Continue reading

‘Bare’ arbitration clauses under the UNCITRAL Model Law on International Commercial Arbitration

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

As every student of international commercial arbitration ought to know, an arbitration agreement should not only impose on the parties a binding obligation to refer a certain dispute (or certain types of dispute) to arbitration but also, as a minimum, indicate the place (or seat) of arbitration and provide a mechanism for the appointment of the arbitral tribunal. Unfortunately, the drafting of arbitration clauses in commercial contracts often leaves much to be desired; in a case involving a badly-drafted arbitration clause, disputing parties who are unable to resolve their disputes by negotiation may find themselves getting bogged down in one or more of the procedural problems to which pathological arbitration clauses frequently give rise.

Particular difficulties may be posed by so-called ‘bare’ clauses – that is, clauses which merely provide for submission of disputes to arbitration without specifying the place of the arbitration, the number of arbitrators or the method for establishing the arbitral tribunal. If, once a dispute has arisen, the parties are unable to agree on the appointment of an arbitral tribunal, the claimant may encounter practical difficulties in activating the arbitration machinery and getting the arbitral tribunal established. Continue reading

Penalty clauses and the courts – Does the UK approach differ from the rest of Europe?

by Prof Paula Giliker, Professor of Comparative Law (University of Bristol Law School).*

Contractual penalty clauses raise questions going to the heart of contract law: should the courts enforce clauses which make payment of a large sum of money due on breach of contract? The argument is that such clauses act as a penalty for breach and are used by economically stronger parties to “discourage” the other party from breaching the contract. The sums in question are often extortionate and bear no resemblance to the true losses of the parties. Should the courts intervene – and diminish the parties’ freedom to contract as they will – or should they simply enforce the contract?

This question was addressed by the UK Supreme Court in Cavendish Square Holdings BV v Makdessi; ParkingEye Ltd v Beavis ([2015] UKSC 67) and raises profound questions of the role of judges in policing contractual agreements and the “morality” of contract law. Continue reading