April 2016 – University of Bristol Law School Blog

Conflicting jurisdiction and arbitration agreements: Exmek Pharmaceuticals SAC v Alkem Laboratories Ltd

Posted on April 25, 2016April 12, 2016 by legalresearch

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

A previous blog addressed certain problems surrounding the interpretation of arbitration clauses, particularly in relation to a lack of transparency concerning the parties’ choice of the seat of arbitration. This blog continues the same theme – albeit in the context of different interpretative questions.

Although the notion of the ‘pathological’ arbitration clause has been part of the international arbitration literature for nearly half a century, difficulties generated by poor drafting continue to bedevil both arbitral tribunals and the courts. Notwithstanding the availability of a wealth of clear and helpful advice (see, for example, Born, International Arbitration and Forum Selection Agreements: Drafting and Enforcing (4^th edn, 2014), a surprising number of those who draft commercial contracts seem to be either unaware of the available advice or incapable of heeding it. (more…)

Can English universities adopt a more commercial approach and stop complying with EU public procurement law?

Posted on April 18, 2016April 12, 2016 by legalresearch

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

Since the introduction of student fees, and particularly after the 2011 White Paper ‘Students at the Heart of the System’, English universities have been exposed to increasing commercial pressures. This has encountered significant opposition, and both the path of reform of the higher education sector and the resistance against it are echoed overseas.

However, this trend will not reverse in the immediate future, whatever the outcome of the consultation based on the 2015 Green Paper ‘Fulfilling our Potential: Teaching Excellence, Social Mobility and Student Choice’. English universities will continue needing to adapt to increasing commercial pressures. However, they seem to have the cards stacked against them. English universities are not entirely free to pursue whichever commercial approaches they see fit. Their activity is highly regulated, and they are bound by significant constraints, both under domestic and EU law.

One area of increasing controversy is the possibility for English universities to move away from what are considered burdensome and restrictive public procurement procedures and adopt a strict commercial approach to the way the purchase supplies, services and commission works. Such flexibility would allow them to choose their suppliers and contractors more freely, reduce the red tape associated to their day to day operations, and some claim that this would unleash innovation. Unsurprisingly, this is catching the attention of practitioners in the field, and the Higher Education Procurement Academy is prioritising this issue. The trouble is that, while some practitioners have made claims supporting the adoption of such a commercial approach, others consider that reforms in the English higher education system are insufficient to warrant such a change.

In order to tackle these issues, together with my colleague Andrea Gideon, I looked in detail into the constraints that EU public procurement law impose on English universities. In our paper*, (more…)

Homelessness internal reviews – The long view

Posted on April 13, 2016March 22, 2016 by legalresearch

By Prof Dave Cowan, Professor of Law and Policy (University of Bristol Law School)*

Applicants for homelessness assistance who are aggrieved by a local authority’s discretionary decision against their interests, can request a review of that decision. These reviews are an incredibly important part of the homelessness decision-making process – a negative decision made by a local authority can leave an applicant with what one Judge has described as the “mark of Cain”. An applicant who does not seek a review cannot appeal a negative decision; if the applicant does appeal their decision, but fails to make all the relevant points, judicial guidance is that such matters cannot be raised on a subsequent appeal. So, both substance and procedure are in play at this crucial stage of internal review.

Since the early 1990s, myself and my colleagues Caroline Hunter and Simon Halliday, (both currently at York Law School) have conducted research in to homelessness internal reviews—on which we published The Appeal of Internal Review. Law, Administrative Justice and the (non-) Emergence of Disputes (Hart 2003) and ‘Adjudicating the implementation of homelessness law: The promise of socio-legal studies’ (2006) 21(3) Housing studies 381. Our research has been both qualitative and quantitative. (more…)

What is Legal Geography?

Posted on April 11, 2016March 22, 2016 by legalresearch

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

Legal geography is an exciting and emerging cross-discipline, exploring how people and places co-constitute the world. It proceeds from the premise that the legal co-creates the spatial and the social while the social and the spatial co-create the legal. There is reflexivity. Once we accept this premise, however, the hard work begins. How do we work out what ‘work’ legal provisions and practices are doing to create spaces (national, regional, local or private) and how do spatial and social settings inform the application of legal rules and principles?

In a piece that was commissioned by Geography Compass, both to provide an overview of where legal geography is today as well as to consider where it is heading, Luke Bennett and I developed the idea of becoming a ‘spatial detective’. We suggested that there is much to learn by both legal scholars and geographers becoming ‘spatial detectives’ – of learning, Sherlock Holmes-like, to search out the presence and absence of spatialities in legal practice, and of law’s traces and effects embedded within places. To make this argument, we revisited the debates around the case of R –v Dudley & Stephens ((1884) 14 QBD 273, still a classic in Law Schools).

On 6^th September 1884, three sailors arrived in Falmouth and reported to the local Customs House, resenting sworn statements there about their recent activities. One month later, these candid statements became evidence in their trial for murder held at the Devon & Cornwall Winter Assizes, in Exeter. This case, R –v Dudley & Stephens, proved to be one of the most contentious legal decisions in English legal history. For the courts ruled that the killing and eating of a cabin boy by these sailors, was a crime under English Law. This was so, even though the sailors would have died had they not done so, as they drifted helplessly aboard a lifeboat in the South Atlantic, 1600 miles off the Cape of Good Hope. (more…)

The Scope for Collective Bargaining in Posting and Procurement––What Might Come From Recent Court of Justice Case Law and the Proposed Reform of the Posting of Workers Directive?

Posted on April 6, 2016March 22, 2016 by legalresearch

By Prof Tonia Novitz, Professor of Labour Law (University of Bristol Law School).

Modern Times, starring and directed by Charlie Chaplin

Workers posted from one European Union (EU) Member State to another would seem to be in need of urgent social protection. Recent evidence produced by the European Commission indicates that, between 2010 and 2014, the number of workers posted from one EU State to another increased by almost 49% (in total approximately 1.9 million workers). More importantly, posted workers tend to earn substantially less than local workers, with reports of income of less than 50% than that usually paid in a given place for the same job. Further, there are indications that, in certain sectors, such as the construction industry, posted workers may be at greater risk of harm through violation of health and safety standards. The reasons may seem obvious, since the language, laws and legal system of a host State are likely to be foreign to posted workers who can also be left without effective local trade union representation.

In the Laval case (C-341/05), the capacity for minimum wages (and other work-related benefits) to be set for posted workers by collective bargaining by trade unions in the host State was cast into doubt. Collective bargaining (and the collective action that generated such bargaining) was considered to be too unpredictable in terms of effect and outcome, creating an unjustifiable barrier for the free movement of service providers. It was only in the case of ‘social dumping’, a nebulous term of uncertain reach, that collective action aimed at conclusion of a collective agreement could be permitted in respect of a particular group of posted workers. Instead, the Court relied on Article 3(1) of the Posting of Workers Directive 96/71/EC (PWD), which envisages only the setting of minimum standards in relation to certain matters. This may be done by ‘law, regulation or administrative provision’ but also by ‘collective agreements or arbitration awards which have been declared universally applicable…’ in accordance with Article 3(8) insofar as they concern’ activities listed in the Annex largely pertaining to the construction industry. EU States may also take the option to give such legal effect to universally applicable collective agreements in other sectors in accordance with Article 3(10). Through this prescriptive treatment of the appropriate limits of collective bargaining, what had been seen by some as a ‘floor of rights’ in PWD came to be a ‘ceiling’. If the national measures taken in respect of protection of the rights of posted workers did not fit within the ambit of the precise terms set out in the PWD, then they were impermissible, despite the apparent scope in Article 3(7) for a more generous interpretation of the Directive ‘more favourable to workers’. (more…)

Introducing Biblical Law

Posted on April 4, 2016March 22, 2016 by legalresearch

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

Biblical law is certainly an area where perceptions are key. Even if you don’t know very much about biblical law, you’ll likely have an opinion about it.

What does biblical law make you think of? What associations spring to mind, especially when you turn off the internal editor? For some of us the associations are primarily negative. We might see it as being out-of-date, violent or misogynistic. Our perceptions may be profoundly moulded by the fact it has the death penalty for certain offences. For some of us, our associations may be exactly the reverse. We might see biblical law as being ethically relevant – authoritative, even. We may see it, positively, as being concerned with liberating the oppressed, protecting the weak, and seeking justice. (more…)