Enforcement of awards under the New York Convention: choice of remedies and the significance of time limits

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

© Michael Coghlan

It is a truism that, although the ultimate purpose of an arbitration is the rendering of an award which definitively determines the disputes that were referred by the parties to arbitration, in practice, the making of the final award may well not be the end of the road. This truism is graphically illustrated by the events following an arbitration conducted around ten years ago under the auspices of the Singapore International Arbitration Centre (SIAC); the dispute had arisen out of a failed joint venture between two groups of companies, a Malaysian media group (Astro), and various companies, including First Media (FM), which were part of an Indonesian conglomerate known as Lippo. During the arbitration, in which the Astro companies were the claimants, the tribunal made a number of awards; in 2010, the arbitration culminated in a final award of US$250 million in the claimants’ favour. Since then, the Astro companies have been trying to enforce the awards through the courts against FM (and others), most notably in Singapore and Hong Kong. Following decisions by the Singapore Court of Appeal (PT First Media TBK v Astro Nusantara International BV [2013] SGCA 57) and, more recently, by Hong Kong’s Court of Final Appeal (Astro Nusantara International BV v PT Ayunda Prima Mitra [2018] HKCFA 12), those attempts now appear to have failed.

In terms of the substance, the case seems, at first glance, to be a relatively simple one. The problems were, to a large extent, procedural and those problems were exacerbated by the fact that the courts of two jurisdictions were required to address the same – or very similar – questions. In total, there were five judicial decisions – two in Singapore – High Court (SGHC) and Court of Appeal (SGCA) – and three in Hong Kong – Court of First Instance (HKCFI), Court of Appeal (HKCA) and Court of Final Appeal (HKCFA). In both jurisdictions, Astro’s application to enforce the awards succeeded at first instance; it was only at the highest level in each jurisdiction that FM prevailed. This blog is divided into six substantive sections; after a brief consideration of the arbitration (I), the most significant features of each of the five court decisions are analysed (II-VI). Some of the lessons that can be learned from the whole saga are summarised in the Conclusion.  (more…)

Sex Work, Labour Unfreedom, and the Law

By Dr Katie Cruz, Lecturer in Law (University of Bristol Law School).*

On 2nd June, sex workers and activists gathered globally to mark the struggle for sex workers’ rights. International Sex Workers Day is just one day of the year dedicated to the struggle for sex workers. Activists gather on March 3rd to mark International Sex Worker Rights Day and on December 17th to mark International Day to End Violence against Sex Workers. These dates occur because of the historical and ongoing violence against, and exclusion of, sex workers. Sex workers are subject to interpersonal forms of violence, from police officers and clients, and the structural violence of criminal justice and immigration institutions. They are criminalized and affected by often-punitive anti-trafficking laws and policies, and they are subject to heightened immigration controls, including the criminalization of movement and working. The Tory government’s hostile environment has created additional layers of institutionalised insecurity for many migrant sex workers, including restrictions on access to housing, healthcare, education, and banking services.

In a recent article I wrote for Feminist Legal Studies, I argue for a Marxist feminist methodology capable or describing and opposing these intersecting exclusions and oppressions as they apply to migrant sex workers in the UK. However, this method can be used to understand the precarious living and working conditions of all (sex) workers. In this post, I make some remarks in relation to citizen sex workers in the UK and Jamaica, where I am currently conducting fieldwork with Prof Julia O’Connell Davidson and Dr Jacqueline Sanchez Taylor. (more…)

Human Rights in the Council of Europe and the European Union: Achievements, Trends and Challenges

By Prof Steven Greer, Professor of Human Rights (University of Bristol Law School), Prof Janneke Gerards, Chair in Fundamental rights law (Utrecht University), and Miss Rose Slowe, Barrister (Middle Temple) and Honorary Research Fellow (University of Bristol Law School).

In our experience the general public, some of our students, and even some of our colleagues, are confused about the differences between the 47-member Council of Europe, the parent body of the European Court of Human Rights, and the 28 (soon to be 27)-member European Union, in human rights and other fields. Confusion about the differences between the two organizations has also been compounded by increasing interaction between them, particularly over the past decade or so. The human rights-related literature is also dominated by separate studies, largely concerning their respective legal systems. As a result, more integrated accounts are increasingly required. This is the primary objective of our recently-published book – S. Greer, J. Gerards and R. Slowe, Human Rights in the Council of Europe and the European Union: Achievements, Trends and Challenges (Cambridge University Press, 2018). (more…)

Three stories about English land secrecy

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

Information about land is valuable, politically, fiscally and – increasingly – as geospatial data products ripe for commercial development. Since William the Conqueror’s Domesday Book was completed in 1086, politicians, campaigners and citizens have wanted to know who owns what. Taxation continues to matter but so does freedom of information. Microeconomics, for example, teaches us that a “free market” relies on symmetry of information: if one party knows more than another, the level playing field is distorted. Money laundering and terrorist financing justify the EU’s pursuit of registers of beneficial ownership. Transparency campaigners argue that open and free data on land ownership is both a citizen’s right and that open registers improve efforts to crack down on tax avoidance. Although rights to privacy continue to resonate in English politics, particularly to beneficial ownership in trusts, the calls for transparency grow louder.

And yet, as these three stories about land secrecy show, we still struggle for information about land ownership and deals. While land registry data is publicly available it is held by estate, rather than being mapped cadastrally, giving a birdseye view of land ownership by presenting the boundaries of land ownership spatially. The paradoxical result, as MSP Andy Wightman has pointed out, is that it is easier to assemble cadastral information for previous generations, based on historical surveys (Domesday, the 1830-1840s Tithe Maps, The Return of Owners of Land from 1873-5 or the 1940s Farm Land Use mapping in England) than map land ownership today. Of course, transparency could be achieved at the stroke of a political pen to find out who owns England (story 1), to understand the extent and range of beneficial ownership of land (story 2) or to avoid the use of “redacting” in “viability assessments” to reduce the amount of newly built affordable housing (story 3). Yet – so far – there is a lack of political will to end ongoing secrecy about land ownership and land deals. (more…)

Scarce regulatory resources: tactical enforcement and hybrid data governance in the cloud

By Dr Asma Vranaki, Lecturer in Law (University of Bristol Law School).

© Ben O’Bryan

European data protection authorities (EU DPAs) play crucial roles in protecting personal data rights. However, many EU DPAs do not have adequate access to resources in order to be effective data privacy protectors. Although the data privacy law literature recognizes that many EU DPAs operate within such constraints, to date, there has been a dearth of empirical studies on how limited resources can impact on enforcement. A new article* makes a modest attempt to address this empirical gap by analysing selected empirical findings of a recent project which examined the investigations of multinational cloud providers by EU DPAs (Cloud Investigations).

This article draws on the fields of socio-legal studies and regulation to interpret these empirical findings and advances three arguments. First, due to their fiscal constraints, some EU DPAs often have to make tactical enforcement decisions about initiating Cloud Investigations as well as the foci and methods of Cloud Investigations. The decision-making process can be very complex for some EU DPAs as they have to not only consider but also at times balance a broad range of factors including external pressures, law and enforcement styles. Second, hybrid forms of data governance can often emerge during Cloud Investigations as EU DPAs delegate their regulatory tasks to private and governmental (other than EU DPAs) actors due to the limited resources. Finally, this article suggests that hybrid data governance needs to be carefully designed in order to ensure effective and robust data governance. Suggestions are made on how the ‘regulatory space’ can be designed in order to promote accountability, trust, robust data protection and effective multi-actor collaboration.

* This article is derived from the work which Dr Vranaki undertook for the ‘Accountability for Cloud’ research project which was funded by the European Commission Seventh Framework Programme. It can be freely downloaded from https://www.researchgate.net/publication/325451273_Scarce_regulatory_resources_tactical_enforcement_and_hybrid_data_governance_in_the_cloud.

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. (more…)

Analysis of the New EU General Data Protection Regulation

By Mr Andrew Charlesworth, Reader in IT Law (University of Bristol Law School).

On Friday 25 May 2018, the EU General Data Protection Regulation (Regulation (EU) 2016/679), commonly referred to by its acronym of GDPR, comes into force across the EU. In the UK, this will be accompanied by the coming into force of the Data Protection Act 2018 which received Royal Assent on 23 May 2018. The new Act repeals the existing Data Protection Act 1998 and revokes the secondary legislation made under the 1998 Act.

The GDPR is directly applicable, which means that with the exception of limited areas of Member State discretion, it applies in the UK without further need for national legislation. The Data Protection Act 2018 addresses those areas of Member State discretion, and also implements the new Data Protection Directive for Police and Criminal Justice Authorities (Directive (EU) 2016/680), which is designed to protect individuals’ personal data when their data is being processed by police and criminal justice authorities, and to improve cooperation in the fight against terrorism and cross-border crime in the EU by enabling police and criminal justice authorities in EU countries to exchange information necessary for investigations efficiently and effectively.

Andrew Charlesworth, Reader in IT law at the University of Bristol Law School, is currently actively engaged in the analysis of the new rules through a series of short articles on the GDPR in conjunction with Cloudview (UK) Limited. Andrew is also providing key expertise in the development of the Privacy Flag initiative. You can access Andrew’s analysis and other work through the links provided in this post. (more…)

Regulatory defection in electricity markets

By Dr Colin Nolden, Vice Chancellor’s Fellow researching in Sustainable City Business Models (University of Bristol Law School).*

Graphic by Sarah Harman. Taken from energy.gov.

Electricity systems are undergoing rapid transformation. An increasing share of previously passive consumers is defecting energy demand and supply from the public electricity network (grid) as active ‘prosumers’ while technological and business model innovation is enabling demand-side resources to provide reliable and cost competitive alternatives to supply capacity.

Yet, centralised supply-focused market structures dominated by legacy infrastructures, technologies and supply chains associated with path-dependencies and technological lock-ins continue to dominate. Regulation has been designed around these existing supply-focused markets and structures rather than networks of the future capable of integrating and facilitating smart, flexible systems. Current systems and their regulatory frameworks are struggling to engage and integrate a range of technological, economic and social innovations promising consumer-oriented solutions to environmental problems. (more…)

Is mental health finally emerging from the shadows into light?

By Dr Judy Laing, Reader in Law and Co-Director of the Centre for Health, Law, and Society (University of Bristol Law School).

Mental Health Awareness Week (14-20th May) is a good opportunity for us to reflect on how far mental health has emerged from the shadows over the last decade. For too long, mental health has been neglected in England and Wales, and this is particularly true for our main political parties, where up until quite recently, mental health has rarely featured in pre-election manifestos. There are now positive signs that this is changing and the nation’s mental health is now firmly on the political agenda.

As the King’s Fund identified in a report in 2015, mental health has finally become a political priority for the major political parties. We saw evidence of this in Theresa May’s Conservative party conference speech in October 2017, as she expressed her desire to tackle the injustice and stigma associated with mental health. This was accompanied by a government pledge to direct additional resources to frontline mental health services and staff. This rhetorical commitment to prioritise mental health is welcome and long overdue, but of course, it must be followed by clear action on the ground in terms of additional staff, services and support, if we are going to witness a radical change in the reality of life for the 1 in four of us who will suffer from a mental health problem each year. (more…)

Working together to combat global health inequalities

By Prof John Coggon, Professor of Law, and Dr Judy Laing, Reader in Law, co-Directors of the Centre for Health, Law and Society (University of Bristol Law School).

The World Health Organization (WHO) celebrated its 70th anniversary last month, on 7th April 2018, which is World Health Day. The WHO was established in 1948 and one of its founding principles provides that:

the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition.

The WHO has achieved a considerable amount in that time by focusing on many of the key challenges to reducing global health inequalities. Some of the most recent challenges faced by the WHO are the rise in drug resistance across the globe, as well as the threat of global pandemics, as witnessed with the Ebola virus outbreak in West Africa in 2014, and the burdens of noncommunicable disease. International organisations such as the WHO have a crucial role to play in tackling these threats to our health fairly and effectively, but it cannot achieve change alone. The WHO must do so in partnership with national governments and other key actors. Within these agendas, there are crucial roles for law and governance as levers to help create the conditions in which people can enjoy good physical and mental health.

One of the world’s leading global health law scholars, and one such key actor and WHO collaborator, Professor Larry Gostin, visited the Centre for Health, Law, and Society (CHLS) at the University of Bristol in April 2018 as a Benjamin Meaker Visiting Professor. He came to talk about his collaborations with the WHO, and to explore some of the key global health challenges with staff and students from across and beyond the university. A key focus throughout his visit was the ways that we can and should link scholarship with activism, policy, and practice: a question at the heart of the mission of CHLS. (more…)