Thursday, May 29, 2008

College of Arts and Social Sciences Postgraduate Conference

The Programme and Abstracts for the 5th CASS Postgraduate Conference are now available at the Conference website. The Conference will be held at the University of Aberdeen on June 11-12.

Jernej Letnar Cernic, the Law Section Coordinator, explains that this year's Law Section is the largest yet. The Law Section features participants from four continents, and will address a wide range of topics including Human Rights, International Law, International Criminal Law, European Law, Criminal Law, Constitutional Law and Arbitration Law.

Many thanks and congratulations to the Organising Committee, particularly the Law Section organisers: Jernej Letnar Cernic, Gerd Koehler and Alessia Vacca.

Thursday, May 22, 2008

AG's Opinion in Case C‑210/06 Cartesio Oktató és Szolgáltató bt

Advocate General Maduro (ECJ) today delivered his opinion in Case C‑210/06 Cartesio Oktató és Szolgáltató bt, a reference for a preliminary ruling from a Hungarian Court of Appeal. The case concerns the compatibility of the real seat theory with Articles 43 and 48 EC. The relevant question referred is the following:

‘(4(a)) If a company, constituted in Hungary under Hungarian company law and entered in the Hungarian commercial register, wishes to transfer its seat to another Member State of the European Union, is the regulation of this field within the scope of Community law or, in the absence of the harmonisation of laws, is national law exclusively applicable?
(b) May a Hungarian company request transfer of its seat to another Member State of the European Union relying directly on community law (Articles 43 [EC] and 48 [EC])? If the answer is affirmative, may the transfer of the seat be made subject to any kind of condition or authorisation by the Member State of origin or the host Member State?
(c) May Articles 43 [EC] and 48 [EC] be interpreted as meaning that national rules or national practices which differentiate between commercial companies with respect to the exercise of their rights, according to the Member State in which their seat is situated, is incompatible with Community law?
May Articles 43 [EC] and 48 [EC] be interpreted as meaning that, in accordance with those articles, national rules or practices which prevent a Hungarian company from transferring its seat to another Member State of the European Union, are incompatible with Community law?’

Hungarian law provides that a company must have its operational headquarters in its State of incorporation. The litigation in the main proceedings concerns the refusal of the Hungarian courts to allow a Hungarian company to transfer its seat to Italy while remaining incorporated under Hungarian law.

There are conflicting precedents that could apply to this matter. On the one hand, if the precedent in Daily Mail is followed, it would appear that the fact that the litigation concerns the relationship between a company and its State of incorporation would render inapplicable Articles 43 and 48. However, if one follows the reasoning of the later judgments in Centros and subsequent cases, the better view would be that the conflict of corporate laws is not outwith the scope of the freedom of establishment. Accordingly, the refusal to allow the company to emigrate without being dissolved would constitute a restriction of the freedom of establishment.

AG Maduro takes note of the conflicting judgments, and of the Court’s efforts to consolidate the precedents. However, he emphasises that ‘these efforts were never entirely convincing’, and that the law has moved on since Daily Mail. The Advocate General thus frees himself of the constraints that the Court has imposed upon itself in refusing to explicitly override the judgment in Daily Mail. In keeping with the later case-law, Maduro finds that the refusal to allow a Hungarian company to transfer its operational headquarters to another Member State is incompatible with the Treaty.

This opinion thus constitutes a clean break from the convoluted precedents and is welcome to the extent that it signals the way for a more coherent body of law. It remains to be seen if the Court of Justice will follow the Advocate General’s reasoning, or if it will persist in the illogical approach of consolidating manifestly incompatible precedents.

Thursday, May 15, 2008

Upcoming Presentation: 'Fundamental Human Rights Obligations of Corporations'

Thursday 22 May, 5pm, Taylor A19
Jernej Letnar Cernic, 'Fundamental Human Rights Obligations of Corporations'

Abstract: This paper argues that fundamental human right obligations of corporations derive primarily from national legal orders and only secondarily from international level, whereas both draw their foundations from international value system. The tenets of every normative system are principles and rules that create rights and obligations of the subjects/participants of that system. Validity of any positive norm derives its legal authority from the membership in a legal order, which gives it a binding force. Legal authority means a source of law where a positive law norm is derived from. Legal scholarship has so far predominantly focused on international legal obligations of corporations. In contrast, the present paper argues that fundamental human rights obligations of corporations derive its legal authority from national normative orders and only secondary from international level. This argument is backed by an empirical study of fifty national legal orders in relation to corporate fundamental human rights obligations. Finally, this paper argues that FHRs obligations of corporations have arguably acquired the status of customary international law.

Wednesday, May 14, 2008

Online Gambling and the Further Displacement of State Regulation: A Note on PMU v Zeturf

An article by our very own and founding member of LRS Justin Borg Barthet has been accepted for publication by International and Comparative Law Quarterly and is now available through their website and the library. The article, titled Online Gambling and the Further Displacement of State Regulation: A Note on PMU v Zeturf, deals with the quagmire that legal regulation of online gambling has turned into in light of the recent judgement GIE Pari Mutuel Urbain (PMU) v Zeturf Ltd by the Cour de Cassation in Paris.


Online gambling constitutes a service for the purposes of the freedom to provide services in the EC Treaty. However, Member States may limit that freedom in order to protect societal norms. This regulatory latitude causes significant uncertainty. This paper analyses recent litigation in which the highest courts of two Member States considered the limits to the freedom to provide services, jurisdiction and recognition and enforcement of judgments, and the interface between their public policies. It is argued that the present regulatory environment is fraught with loopholes and offers no clarity as to which Member State may exercise prescriptive and adjudicatory jurisdiction.

Justin hosted a brief talk on the same topic back in February as part of the LRS discussion series.

Full citation of the article is J. Borg Barthet, 'Online Gambling and the Further Displacement of State Regulation: A Note on PMU v Zeturf' (2008) International and Comparative Law Quarterly 417-426.

Saturday, May 10, 2008

Access to Justice in Environmental Matters

Yesterday I had the pleasure of attending the launch of the report Ensuring Access to Environmental Justice in England and Wales at a seminar at King’s College hosted by the UK Environmental Law Association (UKELA). The Report is the result of deliberations of a Working Group chaired by the Hon Mr Justice Sullivan examining whether the current regime of judicial review in England and Wales fulfils the UK Government’s obligations under the 1998 Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters. The Report deals with the ‘third pillar’ of the Aarhus Convention on access to justice, more specifically Article 9(4), which states that the procedures which the contracting parties rely on “shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair equitable, timely and not prohibitively expensive.”. The Report concludes that the current law on costs, including the potential exposure to costs where an applicant for judicial review is unsuccessful, is not in compliance with the Aarhus Convention. Reaching this conclusion, the Working Group argues that the requirement of costs not being “prohibitively expensive” is not merely a reference to court fees but includes the total exposure to costs, i.e. the risk of being ordered to pay costs for other parties and requirements of cost undertakings for interim injunctive relief. In line with these conclusions, the report makes a number of recommendations in relation to the awarding of costs and access to legal aid for claimants in general.

Although the Report deals specifically with access to justice in environmental cases before the English and Welsh courts, the conclusions and recommendations ought to spur interest for lawyers dealing with other areas of law as well as other jurisdictions. For instance, bringing environmental cases before Scottish courts equally remains an undertaking that few individuals, NGOs and grassroots organisations can afford. Similarly, the need for a shakeup in the rules governing legal aid and affordability of court cases in general is an issue that goes beyond mere environmental cases.

Burma, Foreign Aid and Crimes against Humanity?

In light of the tragic events taking place in Burma, or Myanmar as the ruling military junta renamed it in 1989, a few interesting questions of international law spring to mind. Notwithstanding the fact that urgent need for relief and assistance to the Burmese people takes precedence over legal debates, the very refusal to accept foreign aid workers on its soil by the Burmese junta raises legal questions (the Times has a story on the situation). For instance, is it possible that this denial of foreign assistance could constitute crimes against humanity as defined by the Rome Statute of the International Criminal Court (ICC)? Article 7 of the Rome Statute defines crimes against humanity as acts “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”. For the purpose of this discussion the “acts” referred to in subsection 1 of Article 7 would be “[O]ther inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health”, as defined in Article 7(1)(k). In subsection 2 of Article 7, it is clarified that the “attack” refers to a conduct against any civilian population “pursuant to or in furtherance of a State or organizational policy to commit such attack”. In this light, it could be argued that the deliberate denial of foreign aid by the Burmese junta, which clearly causes “great suffering, or serious injury to body or mental or physical health” is part of a conscious policy by the junta placing it within the ambit of a “widespread and systematic attack”. Unfortunately, the Burmese junta is not, perhaps not surprising, a party to the Rome Statute rendering the ICC’s jurisdiction illusory. Furthermore, cynics would assert that the Burmese junta is simply exercising its sovereign rights under international law in deciding who and what nationalities get to enter Burma. However, the Rome Statute was specifically set up to hinder impunity from hideous crimes committed under the guise of sovereignty.

Friday, May 09, 2008

On Europe Day

‘World peace cannot be safeguarded without the making of creative efforts proportionate to the dangers which threaten it.

The contribution which an organized and living Europe can bring to civilization is indispensable to the maintenance of peaceful relations. In taking upon herself for more than 20 years the role of champion of a united Europe, France has always had as her essential aim the service of peace. A united Europe was not achieved and we had war.

Europe will not be made all at once, or according to a single plan. It will be built through concrete achievements which first create a de facto solidarity. The coming together of the nations of Europe requires the elimination of the age-old opposition of France and Germany. Any action taken must in the first place concern these two countries...’

(Full text of the Schuman Declaration available here)

Of Detention and Geese

In the south of Europe the warmer weather brings with it a heated debate about illegal immigration as the calmer seas allow boat loads of migrants to cross the Mediterranean in search of a better life. Despite the good weather, their journey is often unsafe and many perish at sea.

Those who survive the crossing find that their ordeal is not over. Most European States have detention policies whereby illegal immigrants rescued at sea or intercepted on the shore are held in camps pending conferment of refugee status or repatriation. The detention periods vary from one Member State to another, with France capping the period at 30 days, and the United Kingdom having no upper limit.

A draft European directive would have capped the period of detention at six months, with a possible extension of a further twelve months under special circumstances (See the EU Observer’s report here). In other words, the directive would have allowed Member States to detain immigrants for eighteen months without being charged with the commission of any crime, their only proven illegal act being the irregularity of their entry into Europe. Despite the latitude afforded to Member States, the directive risks being blocked because of opposition to the proposed cap on the period of detention. By way of example, the new Interior Minister of Malta, Europe’s southernmost Member State, said that his jurisdiction should be exempt from the capping rule because of the tiny State’s particular circumstances.

I must concede that illegal immigration poses a major challenge. There is often no way of readily ascertaining the origins of immigrants and whether or not they have a genuine claim to refugee status; nor is there any way of weeding out criminals who abscond to Europe; worse still, the spectre of terrorism weighs heavily on the minds of governments at the historical border between Christianity and Islam.

Yet it is in trying times that the mettle of liberal societies is tested. Much like the challenge posed by terrorism, illegal immigration is viewed by governments, and their consenting electorates, as a special case that allows them to flaunt human rights. Immigrants are held without charge, often in deplorable conditions. Some years ago I visited a detention centre in Malta. I was sickened to find hundreds of men housed in large tents, fenced into a small area with one football as their only means to pass the time (save for airplane spotting at the international airport that is ironically in full view of the detained migrants). All this is occurring at a time when Europe and its ideological allies strive to export liberal values. Clearly what is good for the goose is not necessarily good for the gander.

Friday, May 02, 2008

The LRS Hosts the Hon FDJ Brand at the University of Aberdeen

Earlier today the Hon FDJ Brand presented his paper regarding 'South African Contract Law and the Constitution' at the University of Aberdeen's Old Senate Room. The discussion that followed was chaired by Prof David Carey Miller.

Thanks to Prof Carey Miller, Ms Carol Lawie and the School of Law for their invaluable help in organising Judge Brand's visit.