Judging in the Twenty-First Century - 2014 Society of Legal Scholars PhD Conference
School of Law, University of Nottingham
The Rise of International Arbitration as a Challenge to Judging: A Fresh Look
Free University of Berlin (Germany)
With more than 90% of international contracts including arbitration clauses, the idea of alternative dispute resolution is constantly on the rise. In the increasingly arbitration-friendly world one often forgets that arbitration constitutes a serious challenge to judging, especially in the future. The phenomenon of the opting-out from the traditional judicial path affects not only the quantity of court proceedings but also qualitative dimension of the judging process. Very little research investigates this problem, despite its high practical relevance. This paper posits that an uncritical approach to arbitration has a serious potential of turning judicial forum to a useless tool. In particular, it assesses an impact of the current pro-arbitration bias on control exercised by national courts over arbitral awards. It shows that a huge success of international arbitration goes in hand with the reduction of the intensity of control. Although the low standard of review is considered arbitration-friendly, it deprives control mechanisms of their effectiveness. In this way, judges are not capable of identifying infringements. Eventually, a judicial control is degraded to an illusion. This paper opposes the misuse of the success of international arbitration as an excuse to further undercut the modern judging and offers an increase of the standard of review of awards as a viable alternative.
Judging Copyright Cases Online: How Do Judges Apply The Law Of Copyright In The Digital Age?
University of Bournemouth
The focus of my thesis is on the different perspectives of cyberspace. The virtual reality, or internal perspective, is the understanding of the internet as equivalent to the physical world, whereas the external perspective is of the physical reality and considers only the technical functioning of the network. Each perspective determines different outcomes when applying the law to user activities online. For example, from an external perspective when a user browses material online, the computer makes a copy of that material and temporarily stores it in the internet “cache” on the hard disk. Alternatively, from an internal perspective, the user accepts the virtual world of cyberspace as a legitimate construct, and therefore perceives only that he is observing material online. In the Meltwater case, both the High Court and the Court of Appeal held that temporary copies in the end-user’s computer were “generated by the user’s voluntary decision to access the web-page,” and the Supreme Court stated that “browsing by its very nature is an end-user function.” Therefore taking an external perspective and establishing infringement based on technical function. However, The Hon Mr Justice Arnold recently considered the internal perspective stating that “viewed from the perspective of the user, the websites do in a very real sense make the content available to the public.” Therefore, the questions that this thesis seeks to address are; what is the legal perspective taken on end-user’s activity in cyberspace? Does the statutory law of copyright indicate a perspective? When implementing this law, do judges take an internal or external perspective when deciding the facts of the case? It may be that the approach taken is not consistent through-out the application of the law into cyberspace. Therefore, the next question is whether both perspectives are legitimate in every case?
The Emerging Customary Crime of Terrorism under International Law: An Examination of how Domestic Criminal Law Influenced the Special Tribunal for Lebanon’s Interlocutory Decision
Anna Marie Brennan
University College, Cork (Ireland)
In the recent interlocutory decision passed the Special Tribunal for Lebanon the Appeals Chamber endeavoured to infer a customary crime of terrorism from national law. Although an analysis of national laws may impart considerable evidence of state practice and opinio juris, on their own they are not satisfactory evidence of custom. An examination of the national laws examined by the Appeals Chamber lays bare the incomplete nature of the analysis conducted by the Appeals Chamber and also how the STL incorporated national law into its reasoning. The Appeals Chamber does not make a distinction between national laws that address domestic terrorism and national laws that address transnational terrorism. Only national laws concerning transnational terrorism should have been taken into account by the Appeals Chamber. Essentially, no reliance can be placed on definitions of terrorism that do not include a transnational element. The Appeals Chamber’s approach to national laws is that it relied on domestic definitions of terrorism adopted for both criminal purposes and non-criminal purposes, when only the former should have been taken into consideration. States use different definitions of terrorism in civil, administrative and criminal law. This paper will consider why the Appeals Chamber’s heavy relied on national laws in reaching its decision that there is a customary crime of transnational terrorism. This will involve an evaluation of why the Appeals Chamber analysed the legislation of some states to the inclusion of others. Indeed, it could be said that the judiciary cherry-picked which national laws in order to mould the interlocutory decision to their particular viewpoint.
The Variations in the Notion of a Tribunal According to Tiers of Criminal Justice: A Comparison Between the United Kingdom and Vietnam
Tien Dat Bui
Macquarie University (Australia)
The right to a fair and public hearing by a competent, independent and impartial tribunal which are enshrined in both ICCPR and ECHR has faced a challenge of a universal trend towards the policies of “tough on crime” and “simple, speedy, summary justice”. The significant limitations on the right, particularly in non-serious criminal cases, has transformed the notion of a “tribunal” in the criminal process. The tribunal is not just courts but also involved in other bodies, which are entitled to implement judicial or quasi-judicial functions, such as the police and a variety of regulatory agencies. Such a transformation operates in accordance with tiers of criminal justice ranging from serious offences to trivial ones. The variations raise concerns about the interpretation of a “tribunal” and the proportionality of such limitations on rights. This paper examines the variations in the notion of a tribunal according to tiers of summary process in two prototypical cases of the UK and Vietnam. The case of Vietnam is useful for authoritarian criminal justice systems, and the UK situation is a lesson for the common law countries. There are significant differences between models in dealing with minor offences, but we can see a convergence when a universal due process has constitutionalized the criminal procedures towards a new constitutionalism. While Vietnam has increased the role of courts, the UK has seen a diversion from courtroom. Therefore, there is a need of mutual recognitions between jurisdictions to avoid the differences in interpreting and implementing due process rights. In this context, it is necessary to re-assess the right to a fair hearing by a tribunal to adapt to a rapidly-changing criminal justice.
(TBC) Role of Female Judges in the Lower Courts: A Case Study of the Intellectual Property Enterprise Court Small Claims Track
Sheona Mary Lockhart Burrow
University of Glasgow
This paper, by closely examining empirical data from the IPEC Small Claims Track, sheds light on the often neglected role of the female judge in the lower courts. The male-dominated composition of the judiciary has been the topic of much debate. In the UK statistics show that the judiciary has remained stubbornly ‘male and pale’ in the higher courts, although gender diversity has increased at lower levels. In 2012, the Intellectual Property Enterprise Court Small Claims Track was established with the bench composed of three female district judges. The literature on gender and judging has often focused on the difference that female judges might make to law, court systems, justice and society. The exclusively female composition of the judiciary of the IPEC Small Claims Track presents a unique opportunity to explore these theories in the subverted context of a wholly female bench dealing with substantive law that is not gender salient. This paper will examine empirical data from the cases lodged during the first year of the IPEC Small Claims Track to consider whether it supports theories of female difference in the courtroom. Specifically, this paper will explore how the theories of Carol Gilligan and Carrie Menkel-Meadow about feminine dispute resolution processes might relate to the dispute resolution methods used in the IPEC Small Claims Track. Although much of the quantitative data available about the IPEC Small Claims Track is seemingly gender neutral, hidden potentially gendered aspects may be identifiable. In particular, the propensity of cases in the IPEC Small Claims Track to settle without a final hearing might be explained through feminist theories about female judges.
Criteria for Judging in the WTO Regime: Changing Themes in Multilateral Trade Negotiations
University of Nottingham
It is acknowledged that the WTO, which is based on the doctrine of neo-liberalism, judges Members’ conducts according to criteria which mainly concern boosting commercial interests. Although the WTO embodies exceptions for various non-commercial interests, such as human rights and environment, the strict criteria for judging the Members’ measures deter Members from pursuing those interests to a large degree. Recently, the process of multilateral trade negotiations reflects a fact that WTO is gradually reconciling trade with non-commercial interests. This change may vary the judging criteria; however, literature focusing on this issue remains limited. This paper aims at demonstrating the changes of the criteria for judging in the WTO by analysing the multilateral trade negotiations, especially the Doha Round, and identifying the factors affecting this process. Initially, the whole progress of Doha Agenda is divided into several stages, and for each stage, the themes and value orientations are respectively discussed. The paper then investigates the movements opposing to the WTO, and discusses to what extent those movements have affected the negotiations. Several NGOs are paid particular attention, for they may largely represent non-commercial interests. Following, the social and economic conditions contributing to the advocacy of those movements which influenced the negotiations are investigated. Finally, this paper attempts to forecast the development of judging in the WTO regime based on the analysis of the relationship between criteria for judgement and the social and economic contents. To conclude, social activities gradually influence the changing of the judging criteria in the WTO; and ultimately, those criteria are determined by the constantly changing conditions of economy and society. This finding addresses the necessity for scholars to explore the interaction between the WTO regime and its social or economic contents.
The People as the Judge of a Way Forward for Oil and Gas Investment and Development in the 21st Century
University of Aberdeen
While the state is responsible to develop oil and gas reserves and regulate all operational activities, the people play dominant roles in judging whether the government is developing oil and gas resources for their good in the 21st century. The term “judge” does not merely imply applying laws by the court to mandate the government’s behavior, but using available oil revenue-related information by the people to combat oil-related corruption and to hold the government accountable. Systematic and timely disclosure of this information directly empowers the people to monitor any suspicious and corrupt practices as well as facilitating democratic debates for enhancing accountability. The people are now receiving a necessary boost from the Extractive Industries Transparency Initiative (EITI) and information technology development. The EITI principles codify the best practice on extractive industry transparency and morally pressure the state to incorporate transparency into its oil and gas revenue management regime. The internet and government digitalisation make the voluminous information easily reachable for the people. Instead of the hard law and the court, it is the supportive relationship between soft law instruments, the people, and technologies that ensure sustainability and provide the people with the capacity to judge the action of government in relation to the development of oil and gas resources. In examining the state’s duty to transform oil and gas resources into the people’s benefits, this research historically studies the evolving nature of the principle of permanent sovereignty over natural resources (PSNR) not least in the context of the Armed Activities on the Territory of the Congo (Congo v. Uganda) case. In relation to technology and transparency, this research is based on the author’s field research and interviews conducted in Timor-Leste.
Egyptian Judiciary: From Compromised Independence to Rogue Autonomy
University of Copenhagen (Denmark)
One of the most significant events of the unfolding 21st century is the so called Arab spring. The series of uprisings that swept across a number of Arab countries could provide a magnifying lens on how factors such as popular participation and perception, instability of constitutional structures, dynamism of non state actors, social networks, citizen journalism, etc., can reshape the role of judiciary and the prerequisites of a legitimate judgment. While acknowledging the enormity of these challenges, this paper addresses how the failure to effect an institutional reform parallel to the ongoing socio-political development can negatively alter the perceived legitimacy of the adjudication process. Through shedding light on the Egyptian case, the paper attempts to examine the paradoxical situation where the presumed role and reverence of the judicial institution under Mubarak seems to have largely deteriorated after toppling Mubarak’s dictatorial regime in 2011. To this end, such examination takes place against the backdrop of the constitutional charters that have defined the parameters of the judicial process under Mubarak and afterwards. The paper aims at highlighting the observation that the sole focus on autonomy may backfire at the integrity of the judicial apparatus. The extreme move towards an almost unfettered judicial independence, especially under 2014 constitution, while ignoring, inter alia, the need for an efficient mechanism of checks and balances; a transparent and fair process for selecting judges; making use of modern technology in the performance of justice; developing evidentiary criteria that can verify and accommodate new types of evidence, etc., may eventually lead to an institution that is resistant to reform and isolated from the ongoing societal changes. Therefore, through this constitutional analysis, the paper eventually aspires to provide for a mid-way between pedestaling and controlling judiciary.
Judging the Caribbean Court of Justice
University of Birmingham
Inaugurated in 2005, the Caribbean Court of Justice was intended to end the Judicial Committee of the Privy Council hearing appeals from the Commonwealth Caribbean. Yet almost 10 years on, the position is murky as best. The CCJ has failed to win the confidence of the majority of the region’s governments. The vast majority of appeals—including those from the largest and most litigious states, Jamaica and Trinidad and Tobago—continue to be heard by the JCPC. However, academic and much extra-judicial comment still makes the case for this regional court. Against this background, this paper asks: is the CCJ failing? By reflecting on major constitutional decisions in the region, most of which have been made by the JCPC, this paper assesses the early impact of the CCJ. In making this assessment, the paper asks what expectations for the CCJ would have been realistic at the time of its inauguration. The paper then uses a realistic set of expectations to assess actual decisions of the CCJ. Ultimately, the paper concludes that as a combination of external political considerations and internal structural problems with the court itself, the CCJ is ultimately doomed to fail as a final court of appeal for the Commonwealth Caribbean jurisdictions.
Consumer Standards in the Unfair Commercial Practice Directive: Can Behavioural Economics Serve as an Interpretative Tool for Judges?
University of Nottingham
The Unfair Commercial Practices Directive (hereafter the Directive) adopts the average consumer as its benchmark. However, the average consumer is not the only standard, as the Directive also contains provisions aimed at protecting vulnerable consumers. It is doubtful whether the goal of protecting all consumers is achieved. The Directive crystallizes the previous case-law of the CJEU when describing the average consumer in rec.18 as ‘being reasonably well-informed and reasonably observant and circumspect’. The average consumer is seen as a flexible concept meant to be interpreted by the national courts and authorities, as well as the CJEU, but has been criticised for setting a high standard that does not correspond to actual consumer behaviour. Behavioural economics aim to discover how consumers behave and are challenging the assumptions made by neo-classical economics, which the average consumer standard appears to reflect. Interpreting the standards through common principles, such as behavioural economics, would also assist the convergence of the different approaches of the Member States to a truly European meaning of the term. However recital 18 UCPD cautions against the use of statistical evidence, arguing that legal tools suffice to interpret the standards. This paper will look at how the average consumer standard and the vulnerable consumer standard are being interpreted in the case-law of the Member States and the CJEU. Then it will argue for utilising behavioural insights when interpreting the consumer standards. Next, it will examine the possible ways and the extent of utilising behavioural insights. Finally, it will consider the role the judges can play in assisting that shift and the advantages and practical limitations of that approach.
Judging Online Re-creation Culture in the 21st Century
Queen Mary University of London
Since the late 20th century, the Internet and new technologies have caused a rapid social and cultural change. With the digital facilities, internet users are no longer mere passive consumers but also active creators of new works. Every minute, a large number of people all over the world especially young generations are making, sharing, and viewing “online re-creations”. These online activities have become a new culture of the 21st century. Online re-creations are new works which are created based on pre-existing copyrighted materials such as books, movies, comics, anime and television shows. These works are typically not verbatim copying; instead, they involve new creativity and convey new messages. They are, for instance, fan fictions, parody/satire, vidding, mash-ups and virtual worlds. Under the current copyright law, the online re-creations can be considered as copyright infringements since they incorporate some elements of copyrighted works. Such judgment affects the re-creators’ rights such as freedom of expression and the right to participate in culture. It also interrupts the process of creativity and innovation as well as outlaws the online creative culture; as a result, affects the interest of the public. The public interest has shaped the form of copyright since the 18th century and will continually do. However, in the turn of the 21st century, copyright and the public interest are not well-balanced. This is due to the extension of term and scope of copyright protection as well as the development of technologies and the social and cultural change. Therefore, copyright law needs to be re-shaped to allow reasonable space for the re-creation culture by balancing the rights of re-creators, the interest of copyright owners as well as the interest of the public.
Judicial Dissent and the Ambitions of International Criminal Justice
University of Nottingham
While the publication of dissenting and separate opinions (‘individual opinions’) are a familiar aspect of the international jurisprudential landscape, little focus has been directed specifically at the role played by judicial dissent in shaping the project of international (criminal) justice.
Focussing upon one particular paradigm of international justice, that of international criminal justice, this paper will suggest what role we might conceive for dissentient practice from the perspective of the functions attributed to the process of investigating and prosecuting international crimes. Accordingly, this paper will consider how the vehicle of individual opinions may be conceived as an instrument of a justice-producing regime (Clarke, 2009) and the role that such dissents can play in international and national discourses. It will examine how the semantic authority of the individual international judge (Venzke, 2012) deployed through the vehicle of the individual opinion can operate to reconstitute political struggles within the ‘legal’ domain and how this process shapes our notions of (international) justice. In particular, it will suggest how dissents from the judgments of international courts has enriched and defined the culture(s) of international justice pursued by the different international courts by widening the accessibility of, and participation in, legal discourse.
It will introduce the paradox of dissent: that by undermining the authority of a judicial institution and its pronouncements, judicial dissent ultimately strengthens their legitimacy and the success with which they pursue their functions. Before examining how dissent has been deployed by international judges in recent jurisprudence of the International Criminal Court and the International Criminal Tribunal for the former Yugoslavia, it will briefly recall a historical dissent – that of Justice Pal from the judgment of the Tokyo International Military Tribunal – one which, it may be argued established a culture of dissent at the heart of international criminal justice.
Respective the Private Lives of Those Subject to the Criminal Justice Process: How is Article 8(1) Engaged in Surveillance and Data Retention Cases?
University of Nottingham
Throughout the latter half of the 1900s, the UK government lost a series of cases in the European Court of Human Rights concerning the use of a range of different police surveillance technologies. This led to a number of legislative responses including the Police Act 1997 and the Regulation of Investigatory Powers Act 2000, which sought, among other aims, to provide a legal framework for the regulation of police surveillance techniques that is compliant with Article 8 of the European Convention on Human Rights. However, questions remain over whether this framework has done enough to provide adequate protection for the privacy interests of individuals subject to police surveillance. This research will consider how judges have responded to advances in police surveillance technologies in the 21st century. This will be done with particular emphasis on the extent to which the privacy interests of those subject to police surveillance are protected in English law. Drawing on domestic jurisprudence and the jurisprudence of the European Court of Human Rights, this research explores the scope and (potential) boundaries of a right to privacy for those subjected to police surveillance in England and Wales at the level of fundamental human rights. The confluence of technological advancements, protective criminal justice policies in the post-9/11 era, and novel threats to privacy, has led to difficulty and confusion regarding the extent to which privacy rights should be extended to those subject to police surveillance. Therefore, this research aims establish whether or not common law protections from privacy invasion and the legislative framework designed to regulate police surveillance afford sufficient protection of privacy to those subject to police surveillance.
21st century judgements of the Court of Justice of the EU regarding the recognition of professional qualifications: Much ado about nothing or much ado about something?
Soultana Maria Tsagka
University of Surrey
The Directives on the mutual recognition of professional qualifications constitute a core area of the legal framework of the European Union concerning the Internal Market affecting the free movement of workers, the freedom to provide services and the freedom of establishment. The ineffectiveness of these Directives made their revision through time necessary and resulted in the successive and timely adoption of a number of directives including the recently revised version of Directive 2005/36/EC adopted following a pertinent proposal from the Commission. However the finalized text of this Directive, as adopted, little resembles the Commission’s far-reaching proposal for its revision, especially as concerns the suggestions for incorporation in the Directive of certain aspects of the CJEU’s recent relevant jurisprudence considered by the Commission as able to contribute to rectifying the ineffectiveness of the Directive in question. Sifting through the CJEU’s judgements of the last 14 years the present paper proposes to establish that the Court’s mode of judging has progressed over the particular period in such a manner that it has engendered a change in attitude in the political sphere regarding how the Court’s judgements are taken into account and used today. Whereas previously the Court’s jurisprudence was on occasion utilized to (re)formulate EU legislation, reinforcing the Court’s supremacy and the other EU institutions’ reverence towards it, in the instance of the revision of Directive 2005/36/EC this has not been so. In fact the reverse has occurred, a substantial part of the Court’s jurisprudence being shunned. The premise of this paper is that the reign supreme of the CJEU has therefore been interrupted. The question remaining is what legislative and institutional consequences are to follow.
Judging in the 21st Century: Human Rights Between Universalism, Pluralism and Constitutional Democracy
University of Strasbourg (France)
The ‘overlapping consensus’ of John Rawls appears as a crucial need in the 21st century. It is evident that there is a constant battle between theory and practice, between human rights rhetoric and implementation. But is there a balance between the norms of different legal sources and the influence of jurisprudential politics? In other words, can judging in the 21st century upon human rights issues such as those concerning freedom of religion and refugee and immigration law evolve the way States or regional and international organizations perceive the legal responses? To what degree can the recent approaches on issues like the above set jurisprudential standards and lead to a dynamic dialogue of judges in Europe and in international level? Furthermore, taking into consideration the normative dynamics of different human rights regimes and the fact that those regimes are not only platforms of discussion but they are also actors of judging, we shall seek and “judge” the jurisprudential interpretation of universalism, pluralism of legal orders and responses to modern constitutional democracy. As the judges of 21st century find themselves between the margin of interpretation and the national margin of appreciation and the constitutional identity in a context of an intense interaction of layers a European and international consensus on definitions, standards or interpretative mechanisms is yet to be maintained. The complementarity of human rights regimes and norms appears to be an intense need that can be transformed to a consensus through judging. Finally, judging on human rights issues of freedom of religion and refugee and immigration law is a real challenge and opportunity for the judicial forum to change the perception of human rights law standards in the 21st century.
Parliamentary Sovereignty, The Rule of Law and the English Judge
University College London
This paper provides a critique of the orthodox doctrine of Parliamentary Sovereignty. It argues that this doctrine is only defensible from an obsolete utilitarian philosophy, which does not correspond to the political culture of our legal system. Radically, the paper argues that what is presented to first year law students as a core principle of our constitution is instead a fiction. The conclusion drawn is not that we ought to replace Sovereignty with a new principle, but rather that Parliament has never been sovereign. This claim is backed by historical as well as jurisprudential analyses. Further, it is argued that we are now irreversibly committed to the principle of the Rule of Law. The paper calls for a sophistication of our understanding of that principle and the correspondent precise delimitation of the powers of Parliament. Whilst a coherent theory of the Rule of Law is not attempted in this essay, it is suggested that, whichever conception of the Rule of Law one adopts, an English judge is already more than well equipped to disapply an Act of Parliament that runs contrary to that principle. In practice, the call here is not necessarily for the adoption of a written constitution limiting the power of Parliament, but mainly for the rejection of sovereignty at common law, coupled with an embrace by the English judge of the principle of the Rule of Law. The analysis confronts Jeremy Waldron’s theory against judicial review and argues that the judiciary is the branch of government best equipped to protect individual rights. This argument has both a philosophical as well as a pragmatic dimension. Legal philosophers and constitutional lawyers may find this paper of interest.
Judging in the 21st Century: the challenges posed on the international judge with regard to the material breach of a treaty
Queen Mary, University of London
Judging in the 21st century is constantly evolving as a result of the expansion of law to new areas of human activity and the impact of technological developments. International courts and tribunals constitute no exception to this phenomenon. However, one of the problems that the international judge more specifically will have to face is dealing with possible gaps and overlaps among the codifications of international law by the International Law Commission or by international conferences, which began in the 20th century and continues in the 21st century. Such example constitute the codifications by the ILC of the law of treaties with the 1969 Vienna Convention on the Law of Treaties and of the law of State responsibility with the 2001 Articles on the Responsibility of States for Internationally Wrongful Acts. These two bodies of rules have points of contact, the most important arguably being the case of material breach of a treaty by a party to it, which may give rise to different rights to the other party or parties according to the VCLT or the ARSIWA. The problem is that these rights have quite different conditions of application and it is not always clear whether a State invokes one right or the other, even before an international court or tribunal. The proposed presentation will give an overview of the international jurisprudence with regard to this issue, with emphasis on the 2011 FYROM v. Greece judgment of the International Court of Justice. It is argued that the problem is still far from having been solved and that the international judge will need to find ways to clarify the relationship between different bodies of rules of international law, the modification of which presents great difficulties, with possible implications for the role of the international judge in the 21st century.
One Step Forward, Two Steps Backwards: A General Analysis of the US Supreme Court’s Decisions in the ‘Enemy Combatants’ Cases
University of Nottingham
As we seem to be witnessing the last chapters of the closure of the Guantanamo detention camps, we are compelled to evaluate the successes and the failures of the US Supreme Court’s decisions on the cases emerging from Guantanamo bay. Such an assessment is vital in that it enables to establish an emerging pattern in the modalities of the interaction between the judiciary and the executive in the Twenty First century. My paper will seek to scrutinise two main dimensions of the Guantanamo cases, namely, procedural and substantive restraints put on the detention powers of the US executive by the US Supreme Court. On the account of a detailed analysis of the aforementioned dimensions, and with a view to the implications of these decisions for the future judgements of a similar nature, I will conclude that whilst the US Supreme Court showed a great degree of fortitude in upholding some procedural safeguards for the Guantanamo detainees, its overall conduct fell a long way short of putting substantive restraints on the authority of the US executive.