University of Bristol Law School Blog – Page 39 – A window into the legal research carried out at the Law School

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…)

Law, history and adulterous wives

Posted on March 23, 2016March 22, 2016 by legalresearch

By Dr Gwen Seabourne, Reader in Law (University of Bristol Law School).

For centuries, English common law saw married women as inferior to their husbands, disadvantaged in terms of legal rights and to be protected from themselves and from the outside world. Most formal legal disadvantages have been removed, so it might well be asked why modern lawyers should bother to look at the old laws.

One insight from history which is important for those working to consolidate gains already made and to make further improvements in the legal position of women is that there has been no straightforward, as-the-crow-flies, journey from oppressive medieval rules to enlightened modern ones. This comes out particularly in my recent work on the laws about adulterous wives [see G Seabourne, ‘Copulative complexities: the exception of adultery in medieval dower actions‘, in M Dyson and D Ibbetson (eds) Law and Legal Process: : substantive law and procedure in English Legal History (Cambridge, 2013), 34-55; and ibid, ‘Coke, the statute, wives and lovers: routes to a harsher interpretation of the statute of Westminster II (1285) c. 34’ (2014) 34(1) Legal Studies 123-42]. (more…)

The future of personal injury law

Posted on March 21, 2016March 22, 2016 by legalresearch

By Prof Keith Stanton, Professor of Law (University of Bristol Law School).

The changes to personal injury law announced by the Chancellor of the Exchequer in the Autumn Spending Review have already raised considerable controversy. Claims for damages for whiplash injuries are to be abolished (along it seem with claims for all low value minor soft tissue injuries incurred in road accidents). In addition, the small claims limit for personal injury cases is to be increased from the current £1,000 to £5,000.

As a result of the latter change, a much greater number of personal injury cases will be determined in a procedure under which a winning claimant will be unable to recover any costs. The purpose of this comment is not to consider the immediate implications of these changes, but rather to ask what they tell us about how the personal injury system is likely to develop in the future. (more…)

Ebola, Zika and R2P: 5 Definite Lessons for Africa and the International Community

Posted on March 16, 2016March 22, 2016 by legalresearch

By Dr Foluke Ifejola Ipinyomi, Teaching Associate (University of Bristol Law School).

At the height of the Ebola epidemic I wrote a blog post enumerating lessons that can be learnt by the international community. I continue to be concerned with the responsibility to protect [R2P] and its operation in West Africa especially focusing on the preventive arm of R2P. I also continue to examine any responsibility which the international community may have in preventing human suffering in fragile states.

To recap, in April 2014, the first cases of Ebola were brought to international attention. The outbreak started in Guinea, but quickly spread to Liberia and Sierra Leone with isolated cases in neighbouring Senegal and a transported outbreak in Nigeria. Without a hashtag to cling to or an ice bucket challenge to surmount, the world largely ignored the outbreak. It was not till selfless American and British aid workers, who contacted the deadly virus, were flown to their respective homelands for treatment, that the mass hysteria of an imminent biological apocalypse caused several governments around the world (outside West Africa) to begin to consider what they may do to avoid the virus killing their own citizens. Nevertheless, by October 2014 infections had occurred in the US and Spain. (more…)

The interpretation of arbitration clauses: where is the seat of arbitration?

Posted on March 14, 2016March 15, 2021 by legalresearch

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

It is a truism that arbitration clauses are often poorly drafted, not infrequently agreed at the 11th hour or lifted (inappropriately) from unrelated contracts. As a consequence, courts often have to try to make sense of clauses which are unclear or potentially inconsistent. In Shagang South-Asia (Hong Kong) Trading Co Ltd v Daewoo Logistics [2015] EWHC 194 (Comm), [2015] 1 All ER (Comm) 245 the parties had agreed that arbitration was to be ‘held in Hong Kong’, but that ‘English law [was] to be applied’. After the tribunal had rendered its award, the claimant applied to the English court for setting aside of the award under section 67 of the Arbitration Act 1996. As in Dubai Islamic Bank v Paymentech [2001] 1 Lloyd’s Rep 65, the English court’s setting aside jurisdiction depended on England being the seat of arbitration (see Arbitration Act 1996, s 2(1)). (more…)

The Legal Status of the Agreement of the Heads of State or Government (re Brexit)

Posted on March 9, 2016March 22, 2016 by legalresearch

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

On 19 February 2016, sometime well after breakfast, the members of the European Council reached an agreement concerning a new settlement for the United Kingdom within the EU. The Government was quick to proclaim that the UK’s ‘special status’ in ‘a reformed European Union’ amounts to ‘the best of both worlds’. David Cameron’s ‘hard-headed assessment’ is that the UK will be stronger, safer and better off by remaining inside this reformed European Union, and so he is recommending that the British people vote to ‘remain’ in the in-out referendum on 23 June.

The substance of the reforms, which focus on economic governance, competitiveness, sovereignty, and welfare and free movement, is and will continue to be much debated. This contribution instead focuses on a more technical question – the legal status of the deal – a subject which is now said to be creating ‘open warfare’ in the Tory party. (more…)

The myth of the “securitized Muslim community”: the social impact of post-9/11 counterterrorist law and policy in the west

Posted on March 9, 2016March 22, 2016 by legalresearch

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

S Greer, ‘The myth of the “securitized Muslim community”: the social impact of post-9/11 counterterrorist law and policy in the west’ in G Lennon & C Walker (eds), Routledge Handbook of Law and Terrorism (London: Routledge, 2015), 400-15.

The academic literature broadly concerned with the ‘social impact’ of post-9/11 terrorism and counter-terrorism in the West is dominated by ‘the securitization thesis’ at least eight senses of which can be distinguished: 1. Muslims as a whole feel under suspicion from society merely because they are Muslim; 2. Muslims as a whole are under suspicion from society for the same reason; 3. Islam is under suspicion from society; 4. Muslims as a whole feel under suspicion from the state solely on account of being Muslim; 5. Muslims as a whole are under suspicion from the state merely because they are Muslim; 6. Islam is under suspicion from the state; 7. Muslims as a whole are subject to special security and criminal justice measures purely because they are Muslim; 8. Islam is subject to special security and criminal justice measures not applicable to other faiths or ideologies. There can be little doubt that the first four propositions are true at least to some extent. But these are not genuine instances of ‘securitization’ because this term can only credibly refer to objective, deliberate, state-managed processes, not reducible to the subjective experiences of those who may or may not have been affected by them, or to social processes over which the state may have little or no control. (more…)

Supreme Court rulings on vicarious liability: Cox and Mohamud

Posted on March 9, 2016March 22, 2016 by legalresearch

By Prof Paula Giliker, Professor in Comparative Law (University of Bristol Law School).

“To search for certainty and precision in vicarious liability is to undertake a quest for a chimaera”: Lord Dyson (Mohamud)

On 2 March 2016, the Supreme Court delivered two judgments which it described as “complementary to each other” on the controversial topic of vicarious liability in tort. Vicarious liability imposes strict liability on an employer for the wrongful actions of (usually) its employees which are committed in the course of his or her employment. Recently, however, as Lord Phillips (former President of the Supreme Court) stated in the case of Various Claimants v Catholic Child Welfare Society [2012] UKSC 56 (“the Christian Brothers case”), “the law of vicarious liability is on the move.” Since 2001, it has been an area of law subject to expansion. The question on appeal to the Supreme Court was essentially how far this expansion would go, examining, in particular:

The relationship needed to give rise to vicarious liability. This was examined in Cox v Ministry of Justice [2016] UKSC 10.
The manner in which the wrongful acts of the employee have to be related to the relationship giving rise to vicarious liability – in other words, were the employee’s torts so closely connected with his employment that it would be just to hold the employers liable? This was examined in Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11.

Both judgments are short and unanimous. Neither claim, however, to provide absolute tests, taking the view that a lack of precision is inevitable, given the infinite range of circumstances where the issues arise. (more…)