Tag: BristolCIL

Conclusions from the Workshop on Labour Behind the Food System

Posted on by lee.mcconnell

On June 14th 2019, a group of academics, union representatives, civil society organisers, and members of food-related NGOs and think tanks gathered in Bristol along with the United Nations Special Rapporteur on the Right to Food, Professor Hilal Elver. The intention was to look closely at the condition of work and workers behind the UK food system. Throughout the day, we shared testimonies, experiences and accounts concerning the main challenges and obstacles faced by workers from farm to fork, including beyond the boundaries of the United Kingdom. We discussed trafficking, modern slavery, low wages, availability, technological innovation, migration, and several other issues that affect and characterize the life and the future of people who make our food possible. We have closely followed the ongoing conversations around the UK Food Strategy, including a consultation that opened just last week, along with the parliamentary debate around the Agricultural Bill and the proposals on the new post-CAP domestic settlement for agriculture. We have also been particularly attentive to the increase in household food insecurity in the country, in particular among farmworkers, farmers and workers within the food sector. It is striking that hunger, obesity and malnutrition are increasingly felt among those who produce and transform food.

In light of our research, experiences and conversations, we have listed below some of the main conclusions arising from our workshop. There is no food without labour, and because a healthy and justly rewarded workforce is essential to a sustainable food system, we consider that these elements should inform the whole process of the UK food strategy. When it comes to labour, the future of food is not only about a skilled workforce that knows how to use technology. It is about: an integrated approach and greater coordination within the food system; attention to the bottlenecks; a broad notion of food workers; intersectionality; transparency and visibility; protection, respect and fulfilment of the workers’ human and labour rights; access to justice and reliable enforcement;  and  fair access and use of technological innovation. (more…)

Legal Authority Beyond the State – Towards New Insights into International Law

Posted on by lee.mcconnell

By Prof Patrick Capps, Professor of International Law (University of Bristol Law School) and Prof Henrik Palmer Olsen (University of Copenhagen Faculty of Law)

Two new edited volumes, which add new perspectives on international law, have recently been published by OUP and CUP. The first is International Court Authority (published by OUP during the summer of 2018 and edited by Karen Alter, Laurence Helfer and Mikael Rask Madsen), and the second is Legal Authority Beyond the State (published by CUP early in the spring of 2018 and is edited by Patrick Capps and Henrik Palmer Olsen (the writers of this blog)). The books are similar insofar as they present interdisciplinary scholarship on the authority of international law. Both are, at root, an exploration of how legal authority is established and evolves in international organizations, such as international courts. An important difference between the two books is how each sees the plausible limits of theoretical inquiry into the nature of authority. International Court Authority is more empirical, while Legal Authority Beyond the State is situated in the rationalist philosophical tradition. We argue that the empirical inquiry found in International Court Authority is limited to measure factual, observable behavior which appears to be engaging with international organizations and their laws, but it cannot account for authority per se, which is commonly accepted (in both books) to be the self-conscious orientation of actor’s behavior towards international law, so that it is consistent with the practical reasons offered by international organizations. (more…)

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

Posted on by legalresearch

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…)

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

Posted on by asanchezgraells

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). (more…)

Sex and the City Culture

Posted on by legalresearch

By Ms Roseanne Russell, Lecturer in Law (University of Bristol Law School).

Last week’s reports of the Presidents Club charity dinner once again revealed the troubling culture of the City: ‘that weird mix of cutting-edge high finance and caveman misogyny’ (Patrick Jenkins, Financial Times, 24 January 2018). Journalist Madison Marriage’s exposé recounted how 130 ‘hostesses’ were recruited for a fundraising dinner to be attended by 360 men from the worlds of politics, business and finance (Financial Times, 23 January 2018). Although it is not clear who attended, press reports have stated that the guest-list included senior executives from well-known corporate groups, bankers and hedge fund managers.

The well-intentioned aim of the evening’s auction was to raise money for charity. According to the Club’s website, ‘over the years, esteemed members of the investment, real estate, sports, entertainment, motor industry and fashion world have come together to support and raise millions of pounds for the trust in its work to help as many worthy children’s causes.’ Marriage’s report, however, painted a picture of the highly sexualised City culture that Linda McDowell so vividly captured in her 1997 book Capital Culture and by the Fawcett Society in its 2009 report on Sexism and the City. While ‘hostesses’ were apparently groped, subjected to lewd comments, and, in one instance, asked to join an attendee in his bedroom, the men attempted to outdo each other’s bids for lots including ‘an exclusive private night’ at a strip club, plastic surgery to ‘take years off your life or add spice to your wife’, and a combined lot of lunch with the Foreign Secretary and tea with the Governor of the Bank of England. The winning bid for this last lot was reportedly £130,000. The hostesses were asked to dress as though attending a ‘smart, sexy place’ and asked to sign a non-disclosure agreement (“NDA”) relating to the evening. (more…)

Forum shopping for interim measures in international commercial arbitration

Posted on by legalresearch

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).  (more…)

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

Posted on by legalresearch

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. (more…)

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

Posted on by legalresearch

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. (more…)

The Freedom of Religion: A threat to global security, or a means of enhancing it?

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By Prof Sir Malcolm Evans, Professor of Public International Law (University of Bristol Law School) and Chair, United Nations Subcommittee for Prevention of Torture.*

N White, Genesis (1999).

In recent years the relative importance of religion as an issue of legal and political significance has increased considerably.  For example, it took nearly forty years before the first human rights case concerning freedom of religion or belief came to be considered by the European Court of Human Rights; and in the 1990s official reports of the Council of Europe could express surprise that religion was still proving to be an important political factor in some parts of Europe. Few would advance such a claim today.

Some put this down to the rise in the numbers of religious believers globally; that is, religion is becoming more important simply because there are more religious believers.  It is certainly the case that there are now more people with religious beliefs on the face of the planet than at any time in history. But this does not explain the rise in the importance of religion in global politics. Nor does the increase in the absolute numbers of religious believers necessarily undermine the argument – so popular in Europe for so long – that religion is becoming increasingly unimportant to public life. (more…)

The dualist system of the English Constitution and the Victorian acquis

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By Dr Eirik Bjorge, Senior Lecturer in Public International Law (University of Bristol Law School).*

The Supreme Court in Miller set out the model that ‘the dualist system is a necessary corollary of Parliamentary sovereignty’ (para 57), or in the words of Campbell McLachlan in his admirable Foreign Relations Law, cited by the Supreme Court:

If treaties have no effect within domestic law, Parliament’s legislative supremacy within its own polity is secure. If the executive must always seek the sanction of Parliament in the event that a proposed action on the international plane will require domestic implementation, parliamentary sovereignty is reinforced at the very point at which the legislative power is engaged (para 5.20).

As the Court said, this passage ‘neatly summarises’ the position: but, beyond the neatness of summarization, does it correctly capture the constitutional position? (more…)