Blc obiter dicta edition 5 by British Law Centre

FEBRUARY 2012 5th EDITION

Students & Alumni UK Legal Issues

Letter from the Editors

Welcome to the fifth edition of Obiter Dicta!

CEE National Issues

EU Perspectives

International Perspectives

CEEMC

Call for Papers 75 and Subscribers’ contributions

Once again we have had the pleasure of receiving a multitude of articles from our

students, alumni and friends on a plethora of diverse topics. We are extremely grateful to all those who devoted their free

time to preparing pieces for this edition, and we are sure that you will enjoy reading the results of their labours.

BRITISH LAW CENTRE CELEBRATING 20 YEAR ANNIVERSARY The close links forged between Poland and England during the second world war ensured that, well before the opening of the Schengen borders and the entrance of the inimitable Polish plumber, expatriated Poles and their descendants were already a solid presence in the English legal profession and watching with interest changes occurring in the early 1990s in their home country. It was accordingly an ideal time for the initiative of Judge George Dobry’s to create a course in English and European Union law for a corps of young Polish lawyers which would assist in that Poland’s transition to democracy and ultimately membership of the European Community. Under the academic direction of Professor W.R Cornish and the Centre for European Legal Studies of Cambridge University and with the finan-

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cial support of the British Government Knowhow Fund and London based international law firms, the first British Law Centre at the Law Faculty of Warsaw University was established.

Students & Alumni

The grand opening of the BLC was graced with the presence of the Prince of Wales who was introduced to the first BLC students and members of the teaching staff. The BLC has not looked back since, in 1995 extending its courses to other universities in Poland and then in 1996 to other parts of Central and Eastern Europe.

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In 1994, complementing its activities, it founded the Central and Eastern European Moot Court competition which enables teams of young law students lawyers from the region to participate in and experience the activities and work of the Court of Justice to the European Union in a simulated forum. The presence of EU experts in the judging panel is a key element in enabling competitors to develop and improve their legal knowledge and presentational skills. Teams come from all parts of the CEE region, thus further extending the BLC community. The 18th annual CEEMC will take place in Malta in May 2012 . Two decades and more than 2000 graduates on, the BLC continues to go from strength to strength. It has also been honoured over the years to enjoy the active support of a number of distinguished patrons including;  Sir Robert Carnwath as Chairman of the Advisory Committee of the BLC regulating charity Juris Angliae Scientia Ltd (newly appointed to the United Kingdom Supreme Court)  Advocate General Eleanor Sharpston to the Court of Justice to the European Union (President of the CEEMC)  Lord Gordon Slynn whose career included membership of both the House of Lords judicial committee and the European Court of Justice (former President of the CEEMC, sadly missed) Our twentieth anniversary year is therefore an excellent opportunity for us to thank our invaluable supporters, tutors and friends who have undoubtedly contributed greatly to our success over the years, as well as to enable us to celebrate the activities of our many talented graduates/ alumni!

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What better way to achieve this than by re-uniting many during 2012 in our packed agenda which we hope will reflect the scientific, academic and professional skills of the BLC and its friends, and will culminate in an anniversary gala dinner on Saturday 22nd September in our original Warsaw centre...where social and partying skills will definitely come to the fore!!! All starts on :-

Prof. William Cornish and Sir Robert Carnwath

26 March 2012 with a conference jointly organised and hosted by the Faculty of Law, AMU in Poznan entitled "A last stand for national conflict rules "?and jurisdiction"

the continuing push for EU harmonisation in law

Professor Richard Fentiman of the University of Cambridge, well known to BLC Warsaw students, will be a main speaker at the event which will assess the impact of changes, both current and anticipated, wrought by the EU Brussels and Rome Regimes. 4-7th May 2012 - will see this year‟s CEEMC, which will be held this year in Malta, when teams will consider topical issues of citizenship, immigration and the rights of Third Country Nationals in the EU. 21st September 2012 starts our main celebration weekend (with the patronage of our chairman Sir Robert Carnwath) with a comparative academic conference in Warsaw to be organised by BLC in collaboration with the Centre for European Legal Studies, University of Cambridge, entitled “Two decades of change in the UK Central and Eastern Europe- a comparative lawyers perspective‖ One student/alumni paper will be chosen by competition for presentation. Please see page 75 for more details. to be followed on 22nd September 2012- by the BLC anniversary gala dinner/ ball and dinner in Warsaw..More information and tickets for this event will become available from March 2012 and although details will automatically be sent to all Obiter Dicta subscribers, anyone else wishing to guarantee immediate updates on how to reserve tickets for the event can already email their details to blcanniversary@gmail.com. More details on all these events and our other activities can be found on our web page at www.britishlawcentre.co.uk

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Liability for Asbestos Exposure in English Courts: Legal Orthodoxy or Flexible Justice?

UK Legal Issues

Dr Dorota Leczykiewicz Trinity College, University of Oxford BLC alumna and former tutor

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Asbestos is a mineral which was used in construction since 19th century due to its durability, fire resistance and cost. Since 1900s researchers began to notice a correlation between lung illnesses and employment at asbestos mines. In 1961 the use of asbestos in workplaces became prohibited in the UK by the Factories Act. In time it became known that asbestos dust and fibres could give rise to, inter alia, asbestosis and mesothelioma. Asbestosis is a lung disease which gets worse with every additional exposure to asbestos. Mesothelioma is a malignant tumour which may be latent for even 30 years and then develop within the following ten years. It is invariably fatal. So far it has not been established whether mesothelioma may develop from a single fibre or whether more fibres are needed to trigger the onset of the disease. Yet, it can be stated unequivocally that the risk of developing a mesothelioma increases in proportion to the quantity of asbestos dust and fibres inhaled. Exposure to asbestos may cause also pleural plaques – changes in the lungs which do not have any symptoms but which are a conclusive indication that asbestos fibres have been inhaled.

“Mesothelioma is a malignant tumour which may be latent for even 30 years... It is invariably fatal”

Once medical science established a relationship between exposure to asbestos and certain medical conditions people suffering from these conditions started to bring claims for compensation against their present and former employers. Actions for damages for asbestosis did not cause any major legal problems. Even if the claimant worked for more than one employer during his working life orthodox legal rules enabled him to establish liability of each defendant employer. This was because medical evidence showed that every exposure could affect the patient‟s condition by making as-

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bestosis worse. The ultimate injury suffered by the claimant was a combined result of all the exposures. However, because it could be stated with much certainty that every exposure played a part and that subsequent exposures only made the illness worse, each employer was held liable only for the portion of disease attributable to the exposure for which he was responsible. For this reason asbestosis in law became to be described as a “divisible injury” (Holtby v Brigham and Cowan [2000] 3 All ER 423). Mesothelioma, on the other hand, is confirmed to be an “indivisible injury”. Once the onset of the tumour starts further exposure to asbestos will not make the disease worse. The dice for a particular patient is cast when the last cancerous cell mutation takes place. Given the fact that medical science cannot establish whether mesothelioma is caused by a single fibre or a number of fibres of asbestos or both; if both, which triggering method is more common; and if more fibres are necessary, how many is enough, claimants seeking damages for mesothelioma were facing insurmountable evidential Microscopic image of asbestos fibres hurdles. In their way stood the English law of causation, which requires the claimant to show on the balance of probabilities that but for the defendant‟s wrongful conduct the same harm would not have happened (Barnett v Chelsea Hospital [1969] 1 QB 428). If the claimant would have suffered the same injury even if the defendant‟s conduct had been careful, or would have suffered the same harm as a result of some later occurrence, causation is not established. Mesothelioma, due to uncertainty as to how it develops, could not be attributed to any particular employer in the case of claimants who during their working life worked at a number of workplaces where asbestos was used, or even to all the employers jointly. If the claimant sued the first employer he could not show that it was more likely than not that but for the exposure for which he was responsible the claimant would not have suffered the same disease. After all, he was exposed to asbestos also in his other, later, employments. And it was equally probable that these later exposures caused his disease. The consequences of scientific uncertainty fell entirely and exclusively on the shoulders of the claimant employee. If legal orthodoxy had been preserved, his injury would be irrecoverable in tort. In 2002 the Court of Appeal heard a number of appeals concerning liability of employers in these circumstances, and unsurprisingly found that the claimants failed to establish causation. When the House of Lords (now the Supreme Court of the UK) came to hear appeals from these judgments it was already obvious that the only manner in which the claimants‟ actions could end successfully was through the modification of rules of the English law of causation. More specifically, the claimants argued that due to scientific uncertainty, which makes it impossible to prove, but also disprove, causation, their Lordships should create an exception to

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the orthodox proof of causation. The House of Lords held that an exception should be created (Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22, [2003] 1 AC 32). Where an employee had been exposed by different defendants, during different periods of employment, to inhalation of asbestos dust in breach of each defendant‟s duty to protect him from the risk of contracting mesothelioma and where that risk had eventuated but, in current medical knowledge, the onset of the disease could not be attributed to any particular or cumulative wrongful exposure, the claimant could satisfy the proof of causation by showing that the defendant‟s wrongdoing had “materially increased the risk” of contracting the disease. Because each exposure created a risk of contracting mesothelioma, every employer which exposed a claimant to asbestos could be held liable in the tort of negligence or the tort of breach of statutory duty. As a result, each employer was liable for the entire injury – liability among employers was “joint and several”. If the employee decided to sue only one of the em“… the new exception ployers who exposed him to asbestos that employer could then seek created a crater in the pro rata indemnity from other employers unless they were no longer in law with irregular existence (companies that have been wound up) or insolvent. It foledges and in constant lowed that the victims were fully covered as long as they could find danger of eruption” one employer that still existed and was insured against liability or had financial resources to pay out compensation. Yet, the new exception created a crater in the law with irregular edges and in constant danger of eruption. The legal problems which ensued related to four main issues. First, should the exception apply to cases involving other situations of exposure (for example in schools, council housing, etc.)? Secondly, should the exception only apply when all exposures to asbestos were tortious (i.e. negligent or in breach of a statutory duty)? For example, if part of the exposure was suffered before it became negligent to use asbestos, should the claimant still benefit from the simplified proof of causation? Thirdly, there was a range of opinions as to whether the exception should apply where apart from exposure originating from another party the claimant exposed himself to asbestos by virtue of being self-employed, at home, or by virtue of living in a particular area. Finally, given the fact that the judgment in Fairchild was based on earlier case law which concerned nonasbestos-related illnesses, it was unclear whether the exception could have application beyond the specific case of mesothelioma. The Supreme Court had the opportunity to address most of these questions in a series of cases which followed Fairchild, although the current state of the law is in many respects still unclear. In Barker v Corus plc [2006] UKHL 20, [2006] 2 AC 572, the House of Lords, as it then was, held that the Fairchild exception could operate even though not all potential causes of damage were tortious, and a non-tortious source of risk did not have to have been created by someone who was also a tortfeasor. Two further qualifications were, however, imposed.

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The first one restricted the use of the exception to cases where the claimant‟s disease could be caused by only one type of a causative agent (for example, only by asbestos or another substance operating in a similar way, but not if, for example, both asbestos and cigarette smoking were potential causative agents in an individual case). Secondly, the House of Lords decided to apportion liability to nullify the injustice to the defendants caused by the exception. The original operation of the Fairchild exception made it possible to hold liable for the whole damage the defendant who in fact, but due to limits of medical science unknowingly to us, did not cause the claimant‟s disease. Their Lordships (Lord Rodger dissenting) felt that it would be inappropriate to uphold the principle of full liability given the fact that they now allowed the exception to apply also in cases where the possibility that the claimant‟s disease was caused by the claimant himself or by environmental exposure could not be excluded (later confirmed by the Supreme Court in Sienkiewicz (estate of Costello) v Greif (UK) Ltd [2011] UKSC 10, [2011] 2 All ER 857). Therefore, their Lordships proposed to treat the risk of contracting mesothelioma due to exposure as a new type of damage that should become recoverable in the tort of negligence, provided that the claimant actually contracted the disease before he brought his action (recovery for “pure” loss of chance/creation of risk remains impossible in English tort law, see Gregg v Scott [2005] UKHL 2, [2005] 2 AC 176). Each defendant employer should then be liable only for the risk which his conduct created, expressed as a percentage figure or a fraction of the total loss suffered by the claimant, and damages were to be apportioned accordingly. In this way, asbestos exposure claims led not only to the modification of the English causation rules, but also of the English rules on actionability of damage. What made the decision more surprising was the fact that the judgment went against the standard practice of insurance companies, which before Barker conventionally compensated the claimant in full, even if he sued only one of the employers, and even if part of his exposure took place during a period of self-employment. The victims of mesothelioma did not have to wait long before the old conventional rules were reinstated. The UK Parliament passed the Compensation Act within three months of the Barker judgment. Under section 3 of the Act defendants found liable for contributing to the risk of the claimant‟s suffering from mesothelioma were deemed to be liable for the entire injury (the full loss resulting from suffering from mesothelioma). The idea of apportioning damages to reestablish the balance of justice between the claimant and the defendant was rejected, at least with respect to mesothelioma claims. Whether proportional liability applies to other claims (asbestos-related or others) based on the Fairchild exception remains unclear. The final episode of the “asbestos saga” concerns another medical condition which may be caused by

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exposure to this noxious mineral: pleural plaques (see Jonathan Morgan, “Causation, Politics and Law: The English – and Scottish – Asbestos Saga” in R Goldberg (ed), Perspectives on Causation (Hart Publishing Oxford 2011). Pleural plaques are not in itself a disease, but a scaring of the lungs occurring due to exposure to asbestos. They do not cause any symptoms. A person with pleural plaques does not experience any negative effects of their presence but the anxiety that in the future she might develop an asbestos-related disease. The presence of pleural plaques confirms conclusively that the person has inhaled asbestos fibres. Yet, anxiety which does not amount to “recognised psychiatric illness” is not actionable in English tort law. The only way in which claimants suffering from pleural plaques could obtain damages in the tort of negligence was by treating them, rather than the anxiety, as actionable damage, to which other losses could then be “hooked”. In Rothwell v Chemical & Insulating Co; Re Pleural Plaques Litigation [2007] UKHL 39, [2008] 1 AC 281, the House of Lords rejected such possibility. Due to their symptomless character pleural plaques were not regarded as “damage” and for this reason they were not independently recoverable. What made the judgement in Rothwell controversial was the fact that prior to it claims for pleural plaques had been settled by insurers on the assumption they were actionable in law. The pleural plaques litigation received an interesting twist when the Scottish Parliament passed the Damages (Asbestos-Related Conditions) (Scotland) Act 2009. By the force of statute pleural plaques became “actionable damage” in Scotland. This means that the law between England and Wales, on the one hand, and Scotland, on the other is not uniform. To spice things up, one of the insurance companies, challenged the Scottish Act on the ground that it was incompatible with Article 1 of the First Protocol of the European Convention on Human Rights protecting the right of property. The case eventually found its way into the UK Supreme Court, which in October 2011 dismissed the challenge, thereby confirming disparity between the two legal systems. Asbestos has proved not only poisonous for people but also dismantling for the law. Case law which it has generated is pervaded by the tension between adherence to well-established but somewhat crude principles and the pursuit of justice. As the late Lord Bingham observed in his judgment in Fairchild, the clash of policy considerations in asbestos exposure cases is “inescapable”.

DO:

DON’T:

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Make your name stand out

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Put “Curriculum Vitae” or “CV” as title

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Ensure it is clearly and neatly presented

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Make spelling/grammar errors

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List newest qualifications first

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Use small/illegible/comedy font

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Highlight skills acquired

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Leave obvious questions unanswered

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Give names of referees

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Use informal, inappropriate gimmicks ;)

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Contextual Shift in Contract Interpretation Grzegorz Panek BLC Alumnus, Katowice Centre

In the most general terms, contracts are interpreted in order to determine their contents, 1 once doubts emerge about the meaning of contractual provisions. The need to resort to various interpretative strategies arises when the contract contains ambiguous, obscure or other expressions to which it is difficult to ascribe exact and precise meaning in a particular situation. A similar process of gap filling (where a contract proves incomplete and there appears the need to cover certain issues relevant for the contractual relationship 2) is covered in English law by implication of terms.3 While some perceive it as a separate phenomenon, certain scholars claim that implication in fact is an example of a more general process of interpretation of contract documents.4 The „objective method‟ in England is a common law rather than statutory concept. It is often defined in opposition to the „subjective method‟ where preeminence is given to the actual common intention of the parties. „Objective‟ methods in various legal systems are supposed to take an external perspective by reference to objective criteria such as reasonableness or good faith.5 The latter is not fully recognized in English contract law.6 Objective does not simply mean literal. In fact, reliance on „literal meaning‟ encoded in linguistic structures may be deceptive. While it remains one of the key notions of modern linguistics, its precise definition proves highly problematic. 7 For instance, Sperber and Wilson claim that only few concepts that people form in their minds have stable entries in language. Some remain non-lexicalized and constructed by the addressees of actual utterances by choosing salient information from memory and adjusting concepts that have a more stable linguistic counterpart.8 Interpretation cannot be entirely noncontextual, because a reasonable person in the parties‟ position must assume that contractual provisions are relevant to the background situation. It would also be a mistake as well to divorce completely the objective approach to interpretation and party intentions. The problem is rather the way these intentions were expressed. Real emphasis is put on justified reliance evoked by particular expressions or utterances. In the ob-

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jective method it is the “majority talk” rather than private dictionaries that matters primarily. 9 Still, words cannot be regarded as readily applicable „containers of meaning‟, 10 such as dictionary entries.11 The starting assumption is that the „objective method‟ emphasizes the need to assume the point of view of a reasonable person and the meaning he or she would have given to the contract based on plain linguistic usage and generally accessible knowledge about the context of transaction.12 “The need to resort to various interpretative The above reflects a contemporary English tendency to approach strategies arises when contract interpretation from more contextual positions.13 This shift the contract contains has been observable since the milestone judgment by Lord Hoffambiguous, obscure or mann in Investors Compensation Scheme Ltd v West Bromwich other expressions to Building Society,14 in which Hoffmann formulated five principles: which it is difficult to 1) „Interpretation is the ascertainment of the meaning which ascribe exact and precise the document would convey to a reasonable person having meaning in a particular all the background knowledge which would reasonably situation.” have been available to the parties in the situation in which they were at the time of the contract.‟ 2) The above includes everything in the "matrix of fact", which basically boils down to relevant background circumstances. 3) Prior negotiations and preliminary documentation are excluded in the search of the common intention. 4) „The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean. The background may not merely enable the reasonable man to choose between the possible meanings of words which are ambiguous but even (as occasionally happens in ordinary life) to conclude that the parties must, for whatever reason, have used the wrong words or syntax.‟ 15 5) The plain and ordinary meaning extracted from the text should not contradict a common sense view of what the contract required. Although the English model has been traditionally labeled “literal”, 16 Lord Hoffman‟s principles could be considered as a certain restatement of the general rule that contractual expressions are to be construed according to their plain and ordinary meaning. 17 Hoffman‟s principles only develop that principle further. Judge T. Walker claims that Hoffmann‟s principles reflect a longstanding line of case law from the Commercial Court.18 The shift is of commonsensical character: rather than oppose the notions of text and context, now the interpreter has to make them complement one another and herself assume the perspective of a reasonable observer.

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Such ideas are not something new in the English approach to contract interpretation. According to Lord Dunedin in Charrington and Co Ltd v Wooder [1914] AC 71, the court must „place itself in thought in the same position as the parties to the contract were placed, in fact, when they made it‟.19 Even before Hoffmann, case law used the notion of matrix of fact to refer to the circumstances in which a contract was concluded.20 Matrix, or in other words surrounding circumstances, can be defined as everything the parties had in mind, or rather what they must have had in mind (as this is indeed an objectified perspective), and what was going on around them at the time of conclusion of the contract.21 Obviously, contextual background is used in Continental Europe as well, in the countries where lawyers adhere primarily to the „subjective‟ (or mixed) model of contract interpretation. Circumstances in which the contract was concluded, taken into account while attempting to decipher the common intention of the parties, are laid down in some national legislation of the EU Member States, e.g. Italy or France.22 However, the scope of use shows that the surrounding circumstances do not mean the same in the Continental and British context. While the DCFR drafters, for instance, associate the circumstances also with preliminary negotiations (DCFR II. – 8:102), and while national Continental systems generally admit pre-contractual documentation,23 English courts are reluctant to allow preliminary negotiation documents, because common law generally considers them as subjective proof of intention, and subjective evidence is inadmissible. 24 It would be too easy for a party to claim that he or she did not mean X in saying Y by pointing to preliminary documentation.25 Thus, the English matrix of fact is a different phenomenon which may involve factors such as the situation on the market, customs in a particular branch of commerce or the reasonable purpose of the contract. Also the DCFR drafters have limited the scope of relevance of the circumstances in which the contract was concluded, especially in relation to preliminary documentation, where the „objective‟ model of contract interpretation is to be applied. While in II. – 8:102(1) the authors of the compilation enumerate matters relevant to interpretation, II. – 8:102 excludes precontractual documentation (as well as interpretation already given by the parties to terms or expressions which are the same as – or similar to – those actually used in the contract and the practices that they have established between themselves) where a third party is affected and where that third party had no real access to the negotiations or previous commercial practice between the contractual parties.26 The difference between preliminary documentation and the proper matrix of fact may be illustrated by the example given by the DCFR authors in the commentary to II. – 8:101.27 In this hypothetical case the owner of a skyscraper hires a firm to repaint “(e)xterior window frames.” The employees of the hired company repaint the outside frames of the exterior windows and claim that the job has been completed. The owner of the building claims non-performance and states that the inside surfaces of the frames to exterior windows should have been painted as

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well. Preliminary documents indicate that both the owner and representatives of the painting firm who negotiated the contract had contemplated clearly both surfaces being done. In pursuance of the subjective method, the suggested outcome of the case is based on the existing pre-contractual materials. Even though reasonable interpretation might suggest that only outside surfaces fell within the scope of the contract (providing there is a custom established in this type of transactions that exterior and interior surfaces are painted separately), under the DCFR the actual shared intention of the parties is to be followed. Within the common law tradition, the approach of Australian courts towards the matrix of fact seems interesting, as it reflects certain reservations of more conservative practitioners. 28 Even though they generally accept the restatement of contract interpretation rules set out by Lord Hoffman, some professional parties are still more skeptical.29 It is stressed that surrounding circumstances are not to be used to act on conclusions about parties' subjective intentions. This stance looks clearer in Codelfa Construction Pty Ltd v State Rail Authority (NSW).30 Here, Justice Mason claims that the evidence of surrounding circumstances should be admissible to assist in the interpretation of the contract if the language is ambiguous, however, it is not admissible to contradict the contractual language when it has a plain meaning. Mason adds that facts existing when the contract was made will not be reviewed as part of the surrounding circumstances unless they were known to both parties. If, although, the facts are notorious, the knowledge of them will be presumed.31 Such a reading of Hoffmann‟s principles does not negate context as such, but shows that courts might be unwilling to go on with interpretation once an unambiguous meaning has been achieved. In more linguistic terms, the addressee takes a path of least effort in computing cognitive effects and stops when her expectations of relevance are satisfied. 32 In summary, today it would be difficult to approach the contractual content in terms of any noncontextual grasp of expressions readily applicable as „containers of meaning‟. What may be limited by the requirement of „objective‟ reading are the sources of the interpreter‟s cognition of the apparently intended meaning. The restrictions may concern the scope of materials admissible in the process of interpretation and the linguistic intuition of native speakers of the interpreted language, as well as their professional competence. In short, the „objective method‟ emphasizes the need to assume the point of view of a reasonable person and the meaning he or she would have given to contractual provisions, weighing them against the backdrop of generally known facts and assumptions as to the parties‟ reasonable expectations, rather than search for the actual (but unexpressed) intention at any cost, e.g. by admitting preliminary documentation or witness testimony against clear existing provisions. One thing that may, however, become accepted within the English approach is the relevance of subsequent conduct of the parties which sheds light on the intentions they already expressed.33

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From United Kingdom to Divided Queendom? Dr Steve Terrett British Law Centre Kierownik All students of the British Law Centres will be aware of the constitutional importance of the devolution statutes adopted in 1998, shortly after the Labour government came to power. The Scotland Act 1998, Governance of Wales Act 1998 and Good-Friday Agreement respectively guaranteed separate and independent Parliaments for Scotland, Wales and Northern Ireland. At one stage or another, whether in classes or assignments, our students will also have had to deal with the thorny question of whether devolution threatens the constitutional supremacy of the Westminster Parliament and undermines inter alia the Acts of Union 1707 which merged the Scottish Parliament into the British Parliament. Some of our students will inevitably have argued that, despite day-to-day power having shifted to the regional Parliaments (especially the Scottish Parliament, which has far greater competences than the Northern Irish Parliament or Welsh Assembly), the United Kingdom remains a unitary country and that the Westminster Parliament could repeal the devolution legislation and restore the status quo ante. However, real world events have now caught up with the theoretical constitutional questions that have been asked in British law classrooms for many years – in particular, what would happen if Scotland declares itself to be an independent country? One of the stated aims of the Labour government in implementing devolution in Scotland (in particular) was in order to challenge the growing popularity of the Scottish National Party (SNP), led by Alex Salmond. The SNP has existed since 1934 and has consistently called for Scottish independence outside the United Kingdom. The Labour government believed that the SNP‟s support stemmed from the fact that the political options facing Scottish voters were rather polarized – either continuation of the status quo, which many in Scotland regarded as a form of post-imperial dictatorship by Westminster, or the full independence sought by the SNP. Devolution was meant to offer a half-way house whereby Scottish voters would have far more direct control over their own affairs, and would be capable of governing themselves independently in all areas other than those “reserved” to the Westminster Parliament. Despite the fact that the Scottish Parliament‟s list of competences far outstripped those possessed by the Welsh or Northern Irish Parliaments, it is clear that further extensions to Scottish autonomy were planned. Indeed, amendments to the Scotland Act 1998 (contained in the Scotland Bill) were introduced in the UK Parliament in November 2010 and are currently being debated in Westminster. This Bill would, in accordance with the recommendations of the Commission on Scottish Devolution, give the Scottish Parliament far greater financial accountability and responsibility and would lead to the largest transfer of fiscal powers out of the UK Parliament

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since 1707. The plan to “keep the SNP quiet” by granting Scotland greater autonomy seemed logical, but it also seems to have failed. In 2007, the SNP won 47 of the 129 seats in the Scottish Parliament (known as the “Holyrood” Parliament because of its location in the Holyrood area of Edinburgh), narrowly beating the Labour Party (with 46 seats) to become the largest political party in Scotland for the first time in its history. It ruled as a minority government (together with the Scottish Green Party) between 2007-2011 when its‟ popularity increased enormously and it saw a 23% increase in the number of seats it won during the elections of 5 th May 2011. Following the 2011 elections, the SNP controlled 69 of the 129 seats in the Scottish Parliament and rules as a majority party, with Alex Salmond acting as the “First Minister” (the equivalent of the Prime Minister) of the Scottish government. On 10 th January 2012, Alex Salmond announced that a referendum would be held in autumn 2014 to decide on whether or not to declare Scotland an independent country outside the United Kingdom. One day later, in response to this, the UK government in Westminster issued a consultation paper which discusses how to facilitate a “legal, fair and decisive referendum on whether Scotland should leave the United Kingdom” (available from http://www.scotlandoffice.gov.uk). This consultation closes on 9th March 2012. Some amongst you may be wondering how it is possible for the Scottish Parliament to call a referendum at all, given that Scotland‟s legislation still requires Royal assent and the Secretary of State for Scotland (currently Michael Moore) is capable of blocking such legislation from being sent for Royal assent. The relatively simple answer is that the Scottish Parliament is not legally entitled to organise a referendum on Scottish independence, since this is one of the “reserved matters” which the Scotland Act 1998 placed outside the scope of the Scottish Parliament‟s competences. This is made clear in section 29 of that Act, as seen below: s.29 Legislative competence (1)An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament. (2)A provision is outside that competence so far as any of the following paragraphs apply— (a)it would form part of the law of a country or territory other than Scotland, or confer or remove functions exercisable otherwise than in or as regards Scotland, (b)it relates to reserved matters,

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The concept of “reserved matters” is defined in greater detail in Schedule 5 of the Act, which lists the Constitution as the first of the reserved matters and states that the following aspects of the constitution are reserved matters: (a)the Crown, including succession to the Crown and a regency, (b)the Union of the Kingdoms of Scotland and England, (c)the Parliament of the United Kingdom, Clearly, Scottish independence would affect the Union of the Kingdoms of Scotland and England and is thus outside the sphere of Scottish legislative competence. Why, therefore, did the British government not simply choose to ignore the “threats” of independence from the Scottish government? The obvious answer here is that law never exists in a social vacuum and must always be understood and applied in the political and social context that exists at any given time. Put simply, the British government cannot afford to idly sit by, repeating the mantra that “an independence referendum is beyond the powers of the Scottish Parliament”, whilst Scotland organises a referendum which, quite possibly, supports Scottish independence. Politically speaking, the preferred option is to meet the problem head on by allowing a referendum maintaining at least some degree of control over the manner in which it is organised. This raises the questions of how such a referendum should be organised. Legally speaking, the easiest option would be for the Westminster Parliament to take full control over the organisation, but this would not look the best from a symbolical perspective – it would appear that London even wished to retain control over a Scottish independence referendum. It would also inevitably be opposed by the Scottish government, which wishes to organise the referendum itself. The mid-way option is for Westminster to cede control, whether full or partial, over the referendum to the Scottish Parliament by way of a “section 30 Order”, as envisaged in the Scotland Act 1998. s.30 Legislative competence: supplementary. (1)Schedule 5 (which defines reserved matters) shall have effect. (2)Her Majesty may by Order in Council make any modifications of Schedule 4 or 5 which She considers necessary or expedient. (3)Her Majesty may by Order in Council specify functions which are to be treated, for such purposes of this Act as may be specified, as being, or as not being, functions which are exercisable in or as regards Scotland. [...] Accordingly, s.30(3) would be used to modify the powers of the Scottish Parliament so as to permit it to organise the referendum. However, Westminster clearly is not willing to yield control over every aspect of the referendum procedure and seeks to exert influence over a number of simple, but crucial, aspects of the manner in which the referendum will be organised.

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Some of these questions are considered below. When will it take place? Prior to the 2011 elections, the SNP (then a minority party) sought the support of the other Scottish political parties to hold a referendum almost immediately after the 2011 elections were completed. When the SNP failed to achieve this support but won the 2011 elections, it was announced that autumn 2014 was the preferred date. Alex Salmond has stated that this is because he first wished to see the greater powers arising from the Scotland Bill enter into force, though this seems a little illogical – why should the Scottish government delay the achievement of full independence in order to receive a smaller degree of autonomy at an earlier date? He also argued that 2014 offers the people and political parties of Scotland sufficient time to fully consider the future of their country, prior to the referendum. Again, however, this seems a little strange coming from a party which has been campaigning (on the same basis) since 1934 for Scottish independence. One might be forgiven for assuming that the arguments were already well-rehearsed and that the “battle lines had already been drawn”. Some have suggested that Mr Salmond wishes to coincide the referendum date with the 700th anniversary of the Battle of Bannockburn, perhaps the most celebrated (in Scotland) battle in the wars of Scottish Independence beginning in 1314, wherein Scotland‟s Robert the Bruce conquered the English armies of King Edward II. If so, expect the 24th June 2014 to be the date suggested by the SNP for the referendum. Mr Salmond may be relying on a surge in Scottish nationalism similar to that which surrounded the showing of Mel Gibson‟s Braveheart film in 1995. The UK government wishes the referendum to be held as soon as practically possible. In support of this, it cites the harmful effects of the uncertainty currently surrounding the UK‟s constitutional future and the economic harm this may bring to the UK and Scotland in particular. Perhaps the UK government is also aware of the fact that Scottish voters, who have traditionally been far keener to integrate further in the EU and abandon the pound sterling in favour of the Euro, may now be far more sceptical about weakening economic links with the UK in favour of the crisis-stricken Euro-zone. The UK government‟s draft section 30 Order does not include a specific date for the holding of the referendum, but it clearly supports the holding of the referendum in sufficient time to allow any necessary changes to be made to the UK‟s constitution prior to the holding of European Parliamentary elections in June 2014, the UK Parliament General Election in May 2015 and the Scottish Parliament General Election in May 2016 (if this is still relevant). What will be asked? The Scottish government proposes asking 2 separate questions in the referendum, as follows:

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Proposal 1 – Increased powers and responsibilities for Scotland The Scottish Parliament should have its powers and responsibilities extended as described [on the ballot paper]. Proposal 2 – Additional power to enable Scotland to become an independent country. The Scottish Government proposes that, in addition to the extension of the powers and responsibilities of the Scottish Parliament set out in Proposal 1, the Parliament’s powers should also be extended to enable independence to be achieved. Although both of these questions could be answered simply “yes” or “no”, the UK government has argued that the questions are too complex, since they deal with two entirely separate constitutional issues which should not be confused (i.e. greater devolution or complete independence) and lead to 4 possible outcomes, which would presumably mean at least 4 different political campaigns prior to the referendum. Given the importance of the vote and the need to ensure absolute clarity of the result, the UK government wishes to ask simply one question which states: Should Scotland become independent from the rest of the United Kingdom? If one looks closely at the wording of the “independence question” proposed by the Scottish government in proposal 2 above, it appears curiously vague. What, for example, does it mean that the Parliament’s powers should be extended to enable independence to be achieved? Is this a vote for independence per se or merely a vote to remove the question of independence from the list of “reserved matters” discussed earlier? The reason for such ambiguity is that these questions were originally contained in a document prepared by the Scottish government in 2010, at a time when it was not known that the UK government would support the idea of a “section 30 Order” allowing the Scottish Parliament to organise the independence referendum. The vague wording is clearly designed to ensure that (in the absence of such UK support) the question does not refer to an approval of independence per se since, as noted above, this would certainly be beyond the capacity of the Scottish Parliament to organise. However, given the UK government‟s approval of the referendum, it seems likely that some re-writing of the original “Scottish” questions will be required, though it remains to be seen whether the Scottish government will support the “one question” approach proposed by the UK government and what will happen if no consensus can be achieved. Who will be entitled to vote? The electoral “franchise” (i.e. those who are entitled to vote in a given election) depends on the nature of the particular election. In UK Parliamentary elections, all British (and many Commonwealth) citizens resident in the UK and all British citizens who have lived abroad for less than 15 years are entitled to vote, whereas EU citizens resident in the UK are not entitled to vote.

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Conversely, in local or European Parliamentary elections, British citizens who live overseas are not entitled to vote, whereas EU nationals who live in the UK are. Elections to the UK‟s devolved regional Parliaments follow the latter model. Both the UK and Scottish governments appear to be in broad agreement that the “devolved Parliaments/local elections model” is the appropriate one for the referendum franchise. The UK‟s consultation paper states that ―...the future of Scotland’s place within the United Kingdom is for people in Scotland to vote on.‖ Note here the preference for “people in Scotland” over “Scottish people”. This means that a Scottish man who is resident and working overseas at the time of the referendum will be excluded from the vote, whereas tens of thousands of Poles (and other nationalities) who have moved to Scotland to work would be entitled to vote. One may query whether the long-term implications of Scottish secession should be capable of being influenced by foreign voters who, in the vast majority of cases, have neither history with Scotland nor any desire to tie their future with Scotland other than for short-term employment purposes. If it is legitimate to exclude such voters from national elections on this basis, why is the same not true of eligibility in a constitutional debate such as the composition of the United Kingdom? Whilst this author concurs with the UK government that it would be unnecessarily complex to create an entirely new electoral franchise solely for the purposes of this referendum, a more preferred option would be to limit voting eligibility to those resident in Scotland and capable of voting in national elections, as opposed to local elections. Interestingly, both governments appear content that the referendum will not be a UK-wide affair and that no one resident in the remaining parts of the UK will be able to affect the vote. The international law doctrine of self-determination, which provides the legal theoretical framework within which independence movements and constitutional changes such as this are usually discussed, offers varied and contrasting examples on the question of which territorial element should have the right to participate in an independence referendum – i.e. the entirety of the state or merely the constituent part seeking independence? However, where the central government concedes the right for a constituent element such as Scotland, to organise its own independence referendum, there is no doubt that this legitimises the decision to exclude the remainder of the population from the referendum. The result would not be the same if Cornwall or Liverpool sought to organise independence referenda against the wishes of the UK government! One issue of disagreement continues to exist, however. The Scottish government wishes to lower the voting eligibility age to 16 years old, whereas the UK government wishes to maintain it at 18. Clearly, the SNP appear to believe that a younger electorate would increase their chances for a “yes” vote.

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How will the result be confirmed? Previous referenda held in the UK have been approved (in terms of their organisation and the nature of the questions to be asked), supervised and confirmed by the Electoral Commission, an independent statutory body set up under the Political Parties, Elections and Referendums Act 2000. The UK government supports the use of the Electoral Commission in organising and supervising the Scottish referendum, but the Scottish government proposes the creation of a separate Scottish Referendum Commission who would be nominated by and answerable to the Scottish Parliament. Conclusions On the one hand, it seems remarkable that the UK government is willing to contemplate – and purportedly assist in organising – a referendum following which Scotland may secede from the UK and become a separate country. In the 20 years that the British Law Centres have been active throughout Central and Eastern Europe, the comments most commonly offered by our students to the BLC teachers concern the “stability”, “tradition”, “history” and “predictability” of the UK‟s legal system, yet in this same period the UK has abolished the House of Lords and replaced it with a Supreme Court, drastically reformed the House of Lords political chamber, made the ECHR enforceable in its courts, radically reformed civil and criminal procedure, transformed the legal professions and legal funding, and of course created regional Parliaments which may soon lead to secession of at least one past of the United Kingdom. Hardly the epitome of peace and quiet or “business as usual”... It should not be forgotten that this will not be the first referendum held on the issue of Scottish devolution. A referendum held in 1979 was designed to test whether sufficient support existed in Scotland for the creation of a devolved Scottish Parliament. The Scotland Act 1978 originally provided that a Scottish Assembly would be created if supported by a majority of those voting in the referendum, but a late amendment added the requirement any majority support in the referendum must also constitute at least 40% of the total Scottish registered electorate. The referendum showed a slight majority of votes in favour of a devolved Parliament, but the total number of voters taking part in the referendum was no sufficient for this majority to represent 40% of all registered voters, so the planned Scottish Parliament never came into existence. Twenty years later, a referendum held in 1997, shortly prior to adoption of the Scotland Act 1998, saw a majority of voters support the creation of a Scottish Parliament with taxvarying powers. In comparison with 1978, the turnout in 1997 reached over 60% of the registered electorate. A vote in favour of independence is not by any means a foregone conclusion, but this would be the first time that the question of full independence was explicitly mentioned in the referendum itself and it would be the first time that such a referendum was held once Scotland had

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been given the “taste of autonomy”. It follows shortly after the resounding electoral victory of the SNP, whose support is based almost entirely on the desire to secure Scottish independence. Nonetheless, the current Euro-zone crisis and general fears that Scotland may struggle to maintain its standard of living if it secedes completely from the UK may have a dampening effect on any Scottish nationalistic desire to finally rid themselves of “English interference”. Since only about 60% of public spending in Scotland is money raised by the Scottish Government (the remainder being financed directly from the UK government), independence could come as something of a financial shock. Furthermore, the issue of state succession following independence (i.e. what share of the UK‟s wealth and debts should be taken by Scotland) raises enormously difficult practical questions and it is hardly conceivable that Scotland would be allowed to secede with a “clear balance sheet”, assuming that all debts currently owed by the UK should not affect an independent Scotland. “…this would be the It is clear that a number of thorny questions, briefly introduced above, remain to be decided concerning the manner in which the referendum will be conducted. It is to be hoped that such disagreements can be worked out amicably between the Scottish and UK governments since, although the UK‟s newly-created Supreme Court has competence to rule on devolution disputes, no one seriously hopes that the following classstyle question becomes a political reality:

first time that the question of full independence was explicitly mentioned in [a] referendum... “

Negotiations between the UK and Scottish governments on an independence referendum break-down and, against the clear disapproval of the UK government, the Scottish government organises a referendum in which 2 questions are asked – (1) whether the Scottish Parliament should have greater powers within the existing devolution framework and (2) whether Scotland should become independent from the UK. The referendum (which includes voters aged 16) narrowly approves a ―yes‖ vote to both questions. The Scottish government declares Scotland to be independent. Discuss the following: (a) Has Scotland lawfully seceded from the United Kingdom? (b) Which laws would apply in Scotland and what would be Scotland’s position as regards the debts, assets and legal obligations of the UK? (c) Would England, Wales and Northern Ireland still be able to be known as the United Kingdom? (d) Would the Supreme Court be competent to answer these questions if the Scottish government claims that it is no longer bound by the UK legislation which recognises the Supreme Court’s competence in devolution disputes?

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Lords of the Dance? Dr Steve Terrett British Law Centre Kierownik When Chancellor of the Exchequer Lloyd George finalised his budget in 1909, he was almost certainly unaware of the enormous constitutional implications to which it would give rise. The author of “the people‟s budget”, which represented the first major step in development of the welfare state, sought to finance increases in the State‟s expenditure by raising taxation on numerous luxury goods (including alcohol, tobacco etc.) and increasing taxation on income and land. This led to revolt amongst the nation‟s wealthiest landowners, many of whom were members of the House of Lords (Parliament‟s “upper” chamber) and refused to support the budget. Their veto of the budget led to a constitutional crisis, during which it was resolved that a new general election should be held to see if the nation offered greater support to the reformistminded Liberals or the status quo favoured by the Conservatives, who also dominated in the House of Lords. The Liberals‟ primary stated objective prior to the election of 1910 was to reform the House of Lords‟ powers so as to remove the veto over budgetary matters. In fact, it proved necessary to organise two general elections in 1910, since the first produced a “hung Parliament” with neither the Liberals nor Conservatives having won sufficient seats to make them capable of commanding support in the House of Commons. Following the second 1910 election, the Liberals were able to form a coalition with the Irish Nationalists and to propose the Parliament Bill which would have removed the Lords‟ veto over financial matters. However, under the UK‟s constitutional arrangements as they existed at the time, it was still necessary for the House of Lords to approve this Bill, which they clearly had no intention of doing! The “flexible” way to resolve this seemingly intractable problem was to involve the Monarch. The Liberal Prime Minister of the period, Herbert Asquith, sought assurances from King Edward VII that he would use the Royal Prerogative to create a sufficient number of new Lords to swamp the existing membership and ensure a numerical advantage for those in favour of reforming the upper chamber of Parliament. King Edward VII died in May 1910, in between the two elections held in January and December of that year, but his son (King George V) continued his father‟s support for Asquith. The Monarch‟s support and the threat of losing their prominence, if not their place per se, in the House of Lords, led to a majority of Lords supporting the legislation which became the Parliament Act 1911.

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This Act laid down the following rule as regards “money bills”: s.1 Powers of House of Lords as to Money Bills. (1)If a Money Bill, having been passed by the House of Commons, and sent up to the House of Lords at least one month before the end of the session, is not passed by the House of Lords without amendment within one month after it is so sent up to that House, the Bill shall, unless the House of Commons direct to the contrary, be presented to His Majesty and become an Act of Parliament on the Royal Assent being signified, notwithstanding that the House of Lords have not consented to the Bill. Accordingly, since 1911, the House of Lords has no veto whatsoever in relation to “money bills”. This is an even more significant, though often overlooked, restriction on the power of the House of Lords than the “general” loss of veto which the Parliament Act 1911 introduced in respect of all other (non-money) Bills. As regards the latter, the Parliament Act 1911 stated that Bills which commanded the support of the House of Commons but were not supported in the House of Lords could, nevertheless, be sent for Royal Approval and become binding legislation. The Lords would merely be able to delay (for 2 years) any legislation which had been approved in the Commons. In the event of such a Lords‟ suspensory veto the legislation would enter into force provided that it had been approved in 3 consecutive Parliamentary sessions (over a 2 year period) in the Commons. Thus, the government would still need to show longlasting support for the legislation in the Commons before it could enter into force without Lords‟ approval. The Parliament Act 1949 later reformed and shortened the “general” delaying power so as to remove the Lords‟ veto where a bill had been supported in 2 consecutive Parliamentary sessions (instead of 3 under the Parliament Act 1911) over a one-year period (instead of 2 under the Parliament Act 1911). However, as noted above, in relation to a “money bill” there is no need to delay adoption of the legislation for the one-year period that would apply to all other types of Bill. How, then, is it to be decided whether or not a Bill is a “money Bill”? The Parliament Act 1911 deals with this definition as follows: s.1 Powers of House of Lords as to Money Bills. (2)A Money Bill means a Public Bill which in the opinion of the Speaker of the House of Commons contains only provisions dealing with all or any of the following subjects, namely, the imposition, repeal, remission, alteration, or regulation of taxation; the imposition for the payment of debt or other financial purposes of charges on the Consolidated Fund, the National Loans Fund] or on money provided by Parliament, or the variation or repeal of any such charges; supply; the appropriation, receipt, custody, issue or audit of accounts of public money; the raising or guarantee of any loan or the repayment thereof; or subordinate matters incidental to those subjects or any of them. In this subsection the expressions ―taxation,‖ ―public money,‖

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and ―loan‖ respectively do not include any taxation, money, or loan raised by local authorities or bodies for local purposes. (3)There shall be endorsed on every Money Bill when it is sent up to the House of Lords and when it is presented to His Majesty for assent the certificate of the Speaker of the House of Commons signed by him that it is a Money Bill. Before giving his certificate the Speaker shall consult, if practicable, two members to be appointed from the Chairmen’s Panel at the beginning of each Session by the Committee of Selection. Accordingly, it is for the Speaker of the House of Commons to confirm the “money” status of proposed legislation and such confirmation should only be forthcoming where that legislation deals solely with national financial matters, such as taxation or significant central government spending, as opposed to legislation which is mixed and contains political reforms as well as financial reforms (which will be subject to the normal one-year delay procedure). Clearly the annual budget will fall within the definition of a “money bill”, but what about other bills? The Welfare Reform Bill 2012 was intended by the government to be ―the biggest shake-up of the welfare system in 60 years‖, according to the BBC, and would have involved extensive restrictions on eligibility for social welfare benefits. When debated in the House of Lords, towards the end of January 2012, a number of key government proposals contained in the bill were rejected. These included rejection of proposals that would have:   

required single parents to pay for use of the child support agency. limited eligibility for certain benefits (employment and support allowance) to a maximum of 12 months prevented disabled young people who have never worked, due to illness or disability, from receiving contributory employment and support allowance

If the Welfare Reform Bill 2012 was a “normal” Bill, the House of Lords would be entitled to send its amendments back and forth between that House and the Commons in what is known as the “ping pong” parliamentary procedure. Of course, the government could always rely on the Parliament Act 1949 to force through the Bill without the Lords‟ support, but this would require delaying the legislation for the requisite one year period discussed above. The coalition government, not wishing to delay the legislation but also not wishing to amend it in the manner suggested in the House of Lords, responded to the Lords‟ amendments in the following fashion: The Commons disagree to Lords Amendment[s] for the following Reason— Because it would alter the financial arrangements made by the Commons, and the Commons

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do not offer any further Reason, trusting that this Reason may be deemed sufficient. The government has decided to request that the Speaker of the House of Commons (currently Mr John Bercow, former Conservative MP) categorise the Bill as a “money bill” and thereby declare, with no right of appeal or challenge, that the House of Lords has no right to delay or discuss the bill any more. Bearing in mind the fact that “money bills” are intended to be those which deals solely with national financial matters, the exercise of the Speaker‟s discretion in this matter will almost certainly prove controversial and be criticised by the “losing” party. The Welfare Reform Bill 2012 clearly has large-scale implications for government spending, but also contains many “political” reforms which are not financial in nature. One of the leaders of the Lords‟ rebellion on this matter is Lord Hunt of Kings Heath, the deputy leader of Labour peers, who has argued that the government is ―...hiding behind parliamentary procedure to curtail consideration of the amendments that we passed. If the government continues to do this on these bills, our role as a revising chamber is effectively undermined.‖ The government‟s success in this venture could lead the way for similar tactics to be deployed to prevent the Lords from wrecking legislation to reform Legal Aid and health reforms. The manner in which these events unfold could have significant implications for the way in which the British Parliament operates in the near future. With reform of the House As always the last six months has witnessed changes affecting the legal profesof Lords seemingly sion....positive or negative or mixed as always back on the political depending on perspective! agenda, as part of the “deal” for the Liberal The Italian and Greek legal professions (battling against the radical professional reforms required Democrats having enas a condition of the international banking rescue tered into the coalition package) no doubt take a less positive view than with the Conserva- would countries that insist that competitiveness tives, observers will and openness in the legal profession are essential be paying keen atten- tools in the continuing fight to assist the mirebound Euro. Euro debt crisis As always the last six months has witnessed tion to any attempts to changes affecting the legal profession....positive or negative or mixed as sideline the Lords on always depending on perspective! important political isThe Italian and Greek legal professions (battling against the radical prosues. fessional reforms required as a condition of the international banking rescue package) no doubt take a less positive view than would countries that insist that competitiveness and openness in the legal profession are essential tools in the continuing fight to assist the mire-bound Euro.

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New amnesty act on foreigners in Poland – invisibles become legal

CEE National Issues

Katarzyna Krześnicka Warsaw Centre, 1st year student

OBITER

DICTA

Monday, 2nd of January 2012, early morning – queues are already forming in the Masovian Voivodship Office. People wait for their turn, holding filled application forms, looking around with hope but also a bit of anxiety – for most of them it is the first time they have met with any state official without the fear of being immediately deported to their home country. On 1st of January 2012 the Act of 28 July 2011 regarding the legalisation of stay of some foreign nationals in the territory of the Republic of Poland (Dz.U. No. 197, item 1133) came into force. On the first day 106 applications were submitted, and 862 by 11th of January. The amnesty act is very liberal. It provides the possibility to receive a residence permit valid for two years for foreigners whose stay in Poland on one specific day - 1st of the January 2012 - was illegal and who fulfill one of three additional conditions. The first group that can apply for amnesty are foreigners who have been staying in Poland continuously at least since 20th December 2007. The second group are those whose stay is uninterrupted only from 1st January 2010, but who prior to that date were granted a final decision on refusal to award the refugee status with the expulsion decision. Last group qualified for amnesty are people for whom on 1th January 2010 next proceedings for the “People wait for awarding of refugee status were carried out. their turn… for most of them it is A negative decision will be issued if the foreigner the first time they does not meet the requirements for amnesty; or if have met with any his details are registered in the Schengen Informastate official tion System (for the purpose of refusing him the without the fear of entry to one of the Schengen countries); if he is on being immediately the list of foreigners whose stay in the territory of deported…” the Republic of Poland is undesirable (entered there for national security or defence reasons); or if his stay on the Polish territory threatens national

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security or defence, public safety and order or the interests of the Republic of Poland. A negative decision is also a consequence of giving false information in the application form or submitting false documents with it. The procedure of applying for amnesty is simple: all the applicants have to do is to fill an official form, attach a copy of passport and photographs and pay a stamp duty. After submitting the complete application, every foreigner receives a stamp in their passport confirming their legal stay until the date of issuing the final decision. For a lot of them it is the first time in years they can visit their families left back at their home countries because this stamp in the travel document entitles the foreigner to cross the Polish border to and back from his country of origin. Everybody interested in legalizing his stay in Poland in this simple way has time for submitting the applications until 2nd of July 2012. According to different statistics the number of illegal migrants in Poland varies from 50 thousand up to even half a million people. Most of them come from the Ukraine, Vietnam, Chechnya and Armenia. Granting them amnesty is not a new idea (similar acts were adopted in 2003 and 2007), however the main difference is that now the criteria are not as strict as in previous years. The Office for Foreigners predicts that thanks to the new scope of the amnesty and intensive information campaign, this time it will draw more interest. It is estimated that around 710 thousand people will apply for amnesty in Masovian Voivodship only. The emphasis should be put on the fact that granting a residence permit on the basis of the new amnesty act does not depend on having a promise of employment, work permit or fulfilling any financial conditions such as having enough resources to afford costs of living in Poland in a certain amount of time. Amnesty is for every foreigner fulfilling the length of stay criteria, not only for the small group of the richest amongst them. This can mean a big change in the quality of living for those who need security and stabilization the most, for example the victims of human trafficking. In regard to foreigners staying in Poland illegally, amnesty is widely accepted by the Polish society. Poland is still a country in which the emigration is higher than immigration. Immigration flow is not such a complicated issue as in other EU countries and because of the long history of our own citizens leaving Poland in search for better lives due to economic or political reasons many now have a feeling of solidarity towards the illegal migrants because they experienced similar difficulties while being abroad. The positive decision granting amnesty will result not only in issuing a residence permit; along with it the foreigner is also automatically granted a right to start a job under the employment contract without an obligation to obtain separate work permit. It must be stated that the new amnesty act has an indisputable impact on improving the human rights conditions of migrants in Poland. Legalisation of the stay means the possibility to find a legal job, with full social and labour rights, to provide education for their children and enjoy freedom of movement.

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Unfortunately it very often happens that illegal migrants become victims of different kinds of crimes and also frauds by dishonest employers, because they are easy targets. They cannot seek help from police in fear that they will get arrested and deported after the authorities find out that their stay in Poland is illegal. After legalising their stay they will enjoy the full protection of the law so instead of watching their every move, trying to remain invisible – they can start a normal life, work and integrate fully with the Polish society. The benefits from this new legislation are obviously not only for foreigners. At the same time both the state and the Polish society can derive a lot of advantages of granting illegal migrants the right to live and work on the Polish territory. Most of all, it will increase the income from taxes they start to pay after finding a legal job. As already mentioned, it will also help to lower the crime rate. Moreover it is a remedy for the demographic issue that is starting to become a problem in Poland - in the light of the aging society the flow of immigrants is important for both increasing the birth rate and preventing a state pension fund crisis. The new Polish law on amnesty is remarkable for its deeply humane outcome and strong reasons for the Polish economy hidden within it. We still have to wait to see how many foreigners will decide to get out of the grey zone and make use of the opportunities created by the act, but even now we can tell that for many of them it has given them hope for a new beginning in a country they have already spent so many years in.

The Law Society of England and Wales has now joined with the Institute of Licensed Conveyancers in being able to license/ regulate an Alternative Business Structures (ABS). Since November further changes in the law appear to continue in the direction of the so-called ‘Tesco Law’ by permitting companies and private equity investors to open up their own legal firms and so start to develop a ‘brand mentality’. The Law Society was ‘not amused’ to note that solicitors were labelled as ‘superfluous intermediaries’ in a consultation by the Bar on whether barristers should push for greater direct access to the general public and remove the current 3 year practising pre-condition.

A man phones a lawyer and asks, "How much would you charge for just answering three simple questions?" The lawyer replies, "A thousand Euros." "A thousand Euros!" exclaims the man. "That's very expensive isn't it?" "It certainly is," says the lawyer. "Now, what's your third question?"

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Green Light for Blue Wind Power Marta Skorek 1st Year Student, Warsaw Centre On May 26, 2011 the Sejm (the lower house of the Polish Parliament) passed an Act amending the Act on maritime areas of the Republic of Poland and maritime administration (the Act). The legislation falls into line with the EUâ&#x20AC;&#x;s policy promoting the use of energy from renewable sources. Investment timeframe Under the Act an investor willing to build and operate an offshore wind farm in Polish maritime areas will need to obtain a number of permits. They include: a permit to build and use artificial islands, structures and facilities (the Permit) valid for up to 30 years, which in turn can be extended for another 20 years, as well as a building permit to be obtained within 6 years from the Permit date (with an option to extend the period for additional 2 years). Following a decision made by the minister competent for maritime economy, the Permit may expire if the construction work has not begun within 3 years after issuing the building permit or if the wind farm has not been put into service within 5 years from the commencement of the construction work. The investment timeframe clearly shows that the completed wind farm may be put into operation even after 16 years from the Permit date. It is worth remembering that even after the lapse of such a long period the Permit may also expire if the wind farm has not been put into operation. Furthermore, prior to the issuing of the Permit the ministries specified in the Act will have 90 days to deliver their respective opinions. Failure to do so will mean that the competent authorities have no reservations about the planned investment, which will shorten the procedure for obtaining the Permit.1 By introducing the extended periods the Act appears to reflect the nature of the investment as well as the necessity to conduct specialized research on the impact of the investment on marine environment. 2 Offshore wind farm location The Act has introduced a ban on the construction and operation of wind turbines in Polish internal maritime waters and the territorial sea. Any offshore wind farm investments are to be made only within Polandâ&#x20AC;&#x;s Exclusive Economic Zone (EEZ; an area of sea extending beyond the territorial sea; 12-200 nautical miles seaward of the baseline), which is probably a result of effective lobbying on the part of coastal communities claiming that eyesore wind farms would spoil the view and scare away tourists. As a consequence, in-

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vestors will inevitably face both an increase in the costs of wind turbine power connection as well as an additional fee equal to 1% of the value of the planned investment (owing to the EEZ location).3 Additional fees The additional fee has been divided into 4 installments amounting to 10%, 30%, 30% and 30% of the fee to be paid respectively: (1) 90 days after obtaining the Permit, (2) 30 days after obtaining a building permit, (3) 30 days after the commissioning of the facility, and (4) 3 years after the payment of the previous installment. Under the Act the value of the planned investment will be calculated on the basis of market prices of the equipment and services necessary to complete the investment project as at the Permit application date. Due to a considerable time span between filing an application for the Permit and paying the last installment, the Act provides for the last two installments to be subject to a certain price/cost adjustment which consists in computing the difference between the actual value of the investment made and the amount of the fees paid. As a consequence, the total amount of the fees paid by the investor will correspond to 1% of the actual value of the investment made as opposed to 1% of the value of the planned investment calculated as at the Permit application date. Furthermore, in order to extend the 30-year validity period of the Permit for another 20 years, the investor operating an offshore wind farm will pay another additional fee equal to 1% of the investment value. The fee is to be paid in full within 30 days from the day on which the decision to extend the Permit becomes final.4 Investor selection process Provided that there are multiple competing applicants hoping to win the Permit, the decision to award it will be taken in the course of adjudicative proceedings. The applicants will be requested to provide the information and documents specified in the Act. 5 Environment Although wind power is a clean source of renewable energy, there are some environmental issues raised by scientists in relation to the blue energy (e.g. the disruption of the seabed or noise pollution). Therefore, under the Act potential investors need to provide information on the environmental impact of their planned investment as well as on their marine environment monitoring program.6 Legal infrastructure This law update section explores the legal regulations governing the development of Poland's offshore wind farms as specified in the Act. It is noteworthy that in order to tap into this renewable energy source, there are also other legislative steps and infrastructure that need to be in place to streamline the development and operation of offshore wind farms. They include legal acts governing energy law, transmission corridors or renewable energy sources. 7 Although the amended Act may be seen as a drop in the ocean, it is a positive step in the right direction.

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Societas Privata Europea— Modernisation Despite Modernisation An investigation on the European Private Company as an optimus legal entity for small and medium-sized enterprises within the single market of the European Union

EU Perspectives

Aleksandar Buzdrev BLC Graduate Sofia Centre 2010

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DICTA

Dr Rhidian Lewis Principal Lecturer Anglia Law School Anglia Ruskin University

The European Union is a unique economic and political partnership of twenty-seven independent states. The synergy between them is created via a whole range of principles, policies, laws, practices and objectives, commonly known as acquis communautaire. However, the origin of the word „Europa‟ has been traced back to a Semitic word Erib meaning darkness and describing precisely some periods of political and economic state of the countries in the Union. The great variety of the Union comes along with an endless list of juristic persons such as companies, corporations, trade unions, political parties, etc. That list is dominated by national companies, such as the British Ltd., the German GmbH, the French SARL or the lesser known Bulgarian ООД and Polish SPZOO. However, the variety of national corporate forms is complemented by supranational companies, such as the European Economic Interest Group, the European Public Company and the European Cooperative Society. Another supranational entity is expected to be added to the aforementioned list in the foreseeable future, namely the European Private Company (EPC). The main features of this corporate vehicle distinguish it from other limited liability companies available to entrepreneurs in the Union. The EPC is designed to be widely accessible, easy to set up, cheap to run, and as uniform throughout the EU as possible, but at the same time offering a great deal of flexibility to founders and shareholders to internally organise themselves. As with the European Public Company, there are certain gaps in the EPC Statute, which prompt for the application of national laws. This solution could result in 27 different EPC forms in the EU, which leads to jurisdictional competition. Whether such competition would manifest into a „race to the bottom,‟ or will lead to a conversion of European corporate law and the creation of a „market-for-rules‟ that promotes economic

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growth, depends on what companies regard as a „more favourable‟ system. The process of globalisation has proven to be very important for entrepreneurs managing small and medium-sized enterprises (SMEs). Particularly after the credit crunch, finding new markets has been of utmost importance not only for the prosperity of such companies, but also for their very survival. The recession of the European economy forced all entrepreneurs to look even harder for potential customers and trading partners far beyond their national borders. On the other hand, SMEs are pulling out the economy of the Union from the crisis, being the vast majority of companies incorporated on its territory, accounting for more than 99% of all profit-orientated juristic persons. In addition, SMEs are providing employment opportunities and well-being to the local communities. Accordingly, the European institutions have grasped the potential of the SMEs and are constantly modernizing the legal framework that regulates them in order to suit the needs of the entrepreneurs. The Statute for a European Private Company is at the heart of the company modernization agenda in the last years, because of the incentives it could potentially provide to the business. First of all, an EPC could theoretically reduce the costs of setting up companies or subsidiaries abroad, in particular costs related to the formation and the drafting of articles of association regulated by diverse legislation. Furthermore, it could spare costs related to the management of companies in other Member States, in particular the cost of expensive legal advice on diverse national legislation regulating the company organization and structure, shares, shareholders‟ rights and others. In Eastern Europe an EPC would provide entrepreneurs from that economically less-developed area with a potent and internationally recognizable vehicle to conduct cross-border activities and promote sustainable growth and social welfare on a regional basis. It could potentially relieve the structural funds directed at these underdeveloped regions, which represent almost one-third of the Union‟s budget. By scrutinizing the proposed legislation, it can be observed that the framework of the statute is threefold, consisting of the general provisions of the regulation, the articles of association (Annex I) and finally the linking articles to the relevant provisions of the applicable national law. The latter are applicable to areas outside the scope of the two former parts, such as labour law, insolvency law or tax law. As a rule, the applicable national law shall be determined accordingly with the place where the EPC has its registered office. According to the general provisions the EPC is a limited-liability company, i.e. its owners have limited liability for the company‟s debts and obligations, to the extent of the amount they have

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subscribed for. The shares of the company are private and cannot be offered to the public or publicly traded. The EPC can be formed by one or more natural persons and/or legal entities. The EPC can be set up ex nihilio by one or more shareholders or by transformation, merger or division of an existing company without dissolution. The formation of an EPC is intended as a quick and inexpensive process, which will further incentivize investors with limited financial capacity. The proposal incorporates a closed list of all required documents upon registration, consisting of information about the name of the company, its address, the share capital and the articles of association. Another attempt to relieve entrepreneurs from administrative burdens is the incorporation of the „one-stop-shop‟ and the „e-justice‟ initiatives, which provide companies with the option to comply with all formalities needed as a requisite for the establishment of a legal entity at a single point by electronic means. The registration document and particulars of the EPC are subject to either administrative/judicial check or a certification process. The proposal attempts to deregulate most matters related to shares, by giving wider options to the shareholders in determining their own rights and obligations deriving from shares or their transfer. How“The proposal attempts ever, there are restrictions regarding the position of creditors and to deregulate most minority shareholders. A middle ground is reached on areas such as matters related to shares, the squeezing-out of minority shareholders or the sell-out rights. by giving wider options These issues are not governed by the general articles, but are left to to the shareholders in the discretion of the shareholders within the content of the articles of determining their own association. Transparency of all related actions is retained by the rights and obligations…” maintenance of list of shareholders, which may be inspected upon request. One of the best features of the EPC is its flexibility and the freedom that shareholders have in shaping the company according to their needs. This is implicitly embedded in the rather short number of general articles regulating the internal organization of the company and leaving most of the matters to be resolved in the articles of association by the shareholders. There is no obligation for the shareholders to hold a physical general meeting, because decisions can be taken by written or electronic resolution. Article 28(1) lists the matters that shall be decided by a resolution of the general assembly of the members, such as approval of the annual accounts, change of capital, distributions, appointment and removal of directors and auditors, etc. Some of these decisions require a qualified majority of at least two-thirds of the total voting rights in the EPC, while others can be taken by a simple majority. Nevertheless, all aforementioned matters can be resolved in a different way, if the shareholders decide to amend the general provisions, within the articles of associations. However, this would require

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sophisticated legal advice, which in most cases is out of reach for the majority of small companies. The management body of the EPC, namely the directors have the powers to manage the EPC in all matters except those which are required to be exercised by the shareholders via the EPC Statute, the articles of association or the applicable national law. The management body can vary in its structure depending on the consent of the shareholders, reflected in the articles of association. Such flexibility makes the EPC more convenient to the entrepreneurs, who can shape it to their own needs and understandings. However, the legislation around the EPC cannot be applied without reference to the conflict of laws principles, despite the attempt by the European Commission to introduce a uniform business vehicle. What underpinned this outcome is the emphasis on cross-border activity placed by the legislator when drafting the statutes of supranational entities. The latest compromise proposal for an EPC Statute was rejected on 30th May 2011 by the German and Swedish delegations. The most controversial aspect relates to the statutory participation of employees in the management of the company. Only a few Member States have rules regulating employee co-determination, yet their delegations constantly compare their national legislation environments to the EPC Statute and demand the implementation of similar mechanisms. A solution with minimal negative effects on the business would be the imposition of a cap on number of employees for companies that are incorporated as an EPC. Such companies would not be affected by the rules of statutory employee participation. This might be detrimental to large companies; however the absolute number of such companies that would prefer to operate with limited liability despite their size would be rather insignificant. This leads to the conclusion that such a restriction would be proportionate to the objective pursued, namely a business-friendly EPC Statute. The second key issue concerns the minimum capital requirement for the formation of an EPC. Once again, countries with higher requirements for an initial investment are reluctant to vote for a lax EPC Statute with no minimum capital requirements. Nevertheless, in Germany a company law reform introduced a novel juristic person (Unternehmergesellschaft), which does not

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require initial investment. That reform indicates that even the most conservative legal systems are evolving under the pressure from other company law regimes. The prospects for diminishing the capital requirement for the formation of an EPC are plausible, since that is the trend for the European company law. After all, high minimum capital requirements are neither an effective means of creditor protection, nor a plausible seriousness test for the entrepreneurs. The basic level of creditor protection provided by the EPC Statute can be improved by adopting mechanisms such as guarantees, floating charges or retention of title. Therefore, the minimum capital should not burden the establishment of the EPC. By closing the gaps in the EPC Statute related to capital distributions and employee participation, the Commission could incentivize the reluctant delegations to accept the concept of freedom of establishment and thus vote for legislation that allows for the separation of registered office and central administration. If an article allowing the separation of the registered office and head office of the EPC is implemented within the final version of the statute, such companies would be able to register its subsidiaries in the Member State with the legal framework which is most appealing to them. This would reduce the costs of legal advice, because all subsidiaries could potentially be regulated by the same company law. On the other hand, the principal places of business can be distributed throughout the Community in markets which are considered most profitable by the shareholders. Thus, a high level of flexibility and uniformity shall be established, while at the same time retaining sufficient legal certainty, as the same principle would apply in all Member States, namely that the applicable law would depend on the country of registration. A supplementary effect of this decision would be the regulatory competition be“None of the tween the laws of the Member States, which has proven to be esabovementioned sential to the development of national company laws, while not leadobjectives can be ing to a Delaware style „race to the bottom‟. achieved without a political consensus…”

None of the abovementioned objectives can be achieved without a political consensus that is needed for the adoption of the EPC Statute based on Article 352 of the TFEU Treaty. The meetings of the Competitiveness Council, on which the fate of the EPC Statue is to be decided, have become an arena of company law regimes supported by different Member States. It is unrealistic that an EPC Statute can take into account all particular national interests and at the same time retain its uniformity. Therefore, the meetings should focus on detailed scrutiny of the controversial issues surrounding the EPC Statute and their resolution through the implementation of additional mechanisms of protection rather than undertaking a conceptual shift that would be detrimental to the success of the modernization agenda. It is to be hoped that agreement on the EPC Statute can be achieved in the subsequent meet-

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ings of the Competitiveness Council and that the broadly supported idea by both entrepreneurs and scholars would manifest into a optimus legal entity for small and medium-sized enterprises within the Single Market of the European Union in the face of a European Private Company. Such a business vehicle could mitigate the damage caused to the whole of the Community by the financial crisis, which according to the latest Eurostat publications continues to take its toll. Unfortunately, it appears prima facie that the project for an SPE Statute is not one of the priorities of the Polish Presidency of the Council of the European Union and might not become a reality for some time.

Polish Constitutional Tribunal examines the conformity of the EU secondary legislation to the Constitution Michał Roszczynialski Trainee Barrister, Gdansk Centre Alumnus class of 2008 The EU legal system is dynamic. On the one hand it contains the Treaties constituting the basis of the Union (the EU primary law). On the other hand European institutions (such as the Council and the Parliament) enact the secondary law which regulates many areas of our life. The number of these acts is impressive but may cause problems. The fact that EU law constitutes part of the national legal order, can lead to potential conflicts, especially in the light of the provisions of the Constitutions of Member States. The Polish Constitutional Tribunal (hereinafter referred to as “the Tribunal”) had to tackle this kind of problem in its judgment of 16 November 2011 (Ref. No. SK 45/09). The situation was as follows. Anna S. (hereinafter referred to as “the complainant”) in a constitutional complaint requested the Tribunal to determine the non-conformity of Article 41 of the Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (hereinafter referred to as “Regulation No 44/2001”) to Article 45(1) of the Constitution of the Republic of Poland (hereinafter referred to as “Constitution”), to Article 45(1) in conjunction with Article 78 and Article 176(1) of the Constitution as well as to Article 32(1) in conjunction with Article 45(1) of the Constitution. Article 41 of Regulation No 44/2001 states that: “The party against whom enforcement is sought shall not at this stage of the proceedings be entitled to make any submissions on the application”.

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In other words the complainant alleged that the challenged regulation infringed the right to a fair and public hearing in first instance proceedings, the right to appeal against judgments and decisions made at first stage, the principle of two stages of court proceedings and the principle of equality. The constitutional complaint was submitted on the basis of the following facts: The Court of Appeal in Brussels ordered the complainant to pay a civil plaintiff the amount of EUR 12 500. In 2006 the civil plaintiff requested that the enforceability of the decision of the Belgian court be declared in the territory of Poland, as regards the amount ordered to be paid to him. The Circuit Court in Warsaw declared that the decision issued by the Court of Appeal in Brussels was enforceable. The Court of Appeal in Warsaw (acting as the court of second resort) confirmed the correctness of the judgment of the court of first resort (the Circuit Court in Warsaw). This case became a real challenge for the Tribunal. Never before has the Tribunal examined a case where it had to determine the admissibility of reviewing the conformity of the acts of EU secondary legislation to the Constitution. In the opinion of the Tribunal a legal act that is subject to review by the Tribunal may not only be an act issued by one of the organs of the Polish state, but also a legal act issued by an organ of an international organisation, provided that the Republic of Poland is a member thereof. As the Tribunal stated: “Such legal acts constitute part of the legal system which is binding in Poland and they shape the legal situation of the individual.” This is the case especially where an EU regulation is similar to a statute in a national legal order, which is the basic act being reviewed by the Tribunal. An EU regulation like a statue may contain norms upon which basis a court or organ of public administration must make a final decision on the individual‟s freedoms, rights or obligations specified in the Constitution. Furthermore EU regulation is directly applicable in the legal order of the Member State and do not require implementation into national law. According to the provisions of the Constitution, EU regulations have primacy in the event of their non-conformity with statutes (Article 91 (3) of the Constitution). But still Constitution remains “the supreme law of the Republic of Poland”. That is why it is admissible to examine whether the norms of EU regulations are consistent with Constitution. The Polish Constitutional Tribunal chose another way as regards the potential conflict between EU secondary law and the national constitution. For example the Federal Constitutional Court of Ger-

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many in the decision of 22 October 1986, in the case "Solange II" (Ref. No. 2 BvR 197/83) stated that as long as (German: solange) the European Communities, in particular European Court, generally ensure effective protection of fundamental rights which is to be regarded as substantially similar to the protection of fundamental rights required unconditionally by the German Basic Law, and in so far as they generally safeguard the essential content of fundamental rights, the Federal Constitutional Court of Germany will no longer review secondary Community legislation by the standard of the fundamental rights contained in the Basic Law. It should be emphasised that the Polish Constitutional Tribunal draws a distinction between examining the conformity of the acts of EU secondary legislation to the Treaties and to the Constitution. On the European level Member States can pursue judicial remedies such as bringing actions to the Courts of the European Union to review the legality of the acts of EU secondary legislation or referring questions in relation to pending proceedings to the Court of Justice of the European Union for a preliminary ruling concerning the validity of acts of the institutions, bodies, offices or agencies of the Union. The Tribunal indicated that: â&#x20AC;&#x153;the Court of Justice safeguards the EU law. By contrast, the Constitutional Tribunal is to safeguard the Constitution. (...)The Court of Justice and the Constitutional Tribunal may not be juxtaposed as courts competing with each other. The point is not only to eliminate the overlapping of the jurisdiction of the two courts or concurrent rulings on the same legal issues, but also any dysfunctionality in relations between the EU legal order and the Polish one.â&#x20AC;? A determination of non-conformity of acts of Polish law to the Constitution causes those acts to be no longer legally binding. On the other hand, Tribunal pointed out that such a result would be impossible in accordance to EU secondary law. The consequence of the determination non-conformity of EU secondary legislation to the Constitution would be ruling out the possibility that these acts would be applied by the organs of the Polish state and would have any legal effects in Poland. The Tribunal carefully considered the constitutional complaint. Proceedings without the participation of the other party (ex parte) regulated by Regulation No 44/2001 is known in the legislation (e.g. in the Polish Code of Civil Procedure). This kind of proceedings grants legal protection quickly or achieves a surprise effect. Such judgments have a specific character and do not constitute decisions as to the merits of the action (for example, an enforcement order is a declarative court decision that enables the initiation of executive proceedings). The debtor can

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exercise his or her rights at a later stage of the proceedings. The Tribunal pointed out that: “In fact, it does not follow from the Constitution that every court procedure has to involve the same procedural instruments.” Thus the Tribunal did not find any breaches of the Constitution by the article of Regulation No 44/2001. Furthermore the complainant did not demonstrate the probability “that the challenged act of EU secondary legislation causes a considerable decline in the standard of protection of rights and freedoms, in comparison with the standard of protection guaranteed by the Constitution”. Undoubtedly this unprecedented judgment of the Tribunal constitutes an interesting contribution to the development of Polish constitutional law as well as to the European doctrine of the jurisdiction of the Court of Justice and the Constitutional Tribunals of the Member States. Some concern is being expressed at planned changes of the Rules of Procedure for the European Union Courts both by (i) considering the A man walking on the beach came across an removal of ‘oral hearings’ in prelimiodd-looking bottle. Not being one to ignore nary ruling cases and (ii) by limiting tradition, he rubbed it and, much to his surthe requirement of a full translation prise, a genie actually appeared. "For releasing me from the bottle, I will grant you three of written proceedings in cases origiwishes," said the genie. nating in countries where French or "But there's a catch," the genie continued. English are not the primary language "For each of your wishes, every lawyer in the so permitting a differing understandworld will receive double what you asked ing of the issues for." in cases of limFirst, the man wished for a Ferrari. POOF! A ited or faulty Ferrari appeared in front of him. "Now, every translations. lawyer in the world has been given two FerMight this also raris," said the genie. "What is your next wish?" lead to argued breaches of due "I could really use a million dollars." replied the man, and POOF! One million dollars approcess and acpeared at his feet. "Now, every lawyer in the cess to justice world is two million dollars richer," the genie contrary to the reminded the man, and then asked him for provisions of the his third wish. European ConThe man thought for a minute and said, vention on Human Rights and the "Well, I’ve always wanted to donate a kidCharter on Fundamental Freedoms? ney."

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The scope of application of the Common European Sales Law Pawel Matej BLC graduate, Warsaw Centre class of 2011 The establishment and assurance of the functioning of the internal market is the principal aim of the European Union. The internal market is devised to be an area without frontiers, however factual and legal hindrances distorting free movement still exist. In the area of sales law, EU citizens cannot rely on one set of rules that define their rights and obligations. Every member state has its own rules applicable to The internal market is sales transaction and those rules can diverge to a considerable exdevised to be an area tent. The studies show that trade between states whose legal syswithout frontiers, tems have common origin, such as common law or Nordic legal trahowever factual and dition, is substantially higher when compared with states with diverlegal hindrances gent legal systems. Although the conflict of law rules on contractual obligations are unified in the EU, thus facilitating the determination distorting free movement still exist.” of applicable law, only the unification of substantive rules of member states can effectively whittle away the hindrance to the free movement of goods and services. Such reasoning lies behind the European Commission Proposal for a Regulation on a Common European Sales Law (“the Regulation”) which proposes to unify the national sales laws of the member states. The success of CESL depends on its wide application. Generally, the substantive content of a legal instrument determines how often it would be used. However, in the case of legal instruments of international provenance, the scope of application set out in the instrument itself is equally important. Therefore, the subject of this article is to sketch the conditions that need to be fulfilled in order to apply the CESL. Thus, CESL is applicable if: there

is a cross-border contract (territorial scope),

the

contract is for the sale of goods, for the supply of digital content and for related services (material scope), at

least the supplier of goods, digital content or related services is a trader and in case of B2B contracts at least one party is a small or medium-sized enterprise (personal scope), the the

law applicable to the contract is the law of an EU member state,

parties to the contract agree to choose the CESL to govern their contract (the optional character of the CESL).

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Territorial scope of application Article 4(1) of the Regulation states that the CESL may be used for cross-border contracts. The determination whether a contract fulfils this criterion is dependent on the contracting parties - one set of rules is used for contracts concluded by traders, the other for consumer contracts. According to Article 4(2) of the Regulation, a contract between traders is a cross-border contract if the parties have their habitual residence in different countries of which one at least is a member state. The Regulation resembles the UN Convention on International Sale of Goods (“CISG”) by choosing the residence of the parties as a decisive factor to determine the international character of the obligation. By virtue of Article 4(4) of the Regulation, the habitual residence of companies and other bodies, corporate or unincorporated, shall be the place of central administration. The habitual residence of a trader who is a natural person is determined by that person‟s principal place of business. The definition of “habitual residence” provided for by the proposed Regulation matches the definitions set out in the Rome I and Rome II Regulations (Article 19 and Article 23 respectively). Article 4(5) of the Regulation states that where the contract is concluded in the course of the operations of a branch, agency or any other establishment of a trader, the place where the branch, agency or any other establishment is located shall be treated as the place of the trader‟s habitual residence. The assessment whether the consumer contract is a cross-border one is carried out in accordance with Article 4(3). If the address indicated by the consumer, the delivery address for goods or the billing address is located in a country other than the country of the trader‟s habitual residence and at least one of those countries is a member state, the contract falls within the scope of the Regulation. Irrespective of the parties to the contract, the question arises what is the relevant point in time for the determination of a cross-border contract. The answer of the Regulation is laid down in Article 4(6) – the relevant point of time is the time of the agreement on the use of the CESL. Hence, if at the time of the conclusion of the contract it did not fall within the Regulation‟s territorial sphere of application due to its pure internal character, yet at the time of conclusion of the agreement on the use of the CESL the trader‟s habitual residence or consumer‟s address changed, the CESL applies provided that the changed place is located in another state.

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The cross-border applicability of the CESL stems from its purpose, namely to facilitate trade between member states. However, each member state may extend usage of the CESL to its domestic trade. Pursuant to Article 13(a) of the Regulation, the parties whose habitual residence or address is located in one member state may opt into the CESL subject to that member state‟s decision.

Material scope of application The contracts for which the CESL may be used are listed in Article 5 of the Regulation – those contracts include sales contracts, contracts for the supply of digital content and related services contracts. The definition of a sales contract is set out in Article 2(k) – sales contract means any contract under which the trader (the seller) transfers or undertakes to transfer the ownership of the goods to another person (the buyer) and the buyer pays or undertakes to pay the price thereof; it includes a contract for the supply of goods to be manufactured or produced and excludes contracts for sale on execution or otherwise involving the exercise of public authority. This definition is supplemented in the Article 2(h) by the definition of goods – those are any tangible movable items excluding electricity and natural gas as well as water and other types or gas unless they are put up for sale in a limited volume or set quantity. By virtue of the Article 2(i), price means money that is due in exchange for the objects sold. The CESL may also be used for contracts for the supply of digital content whether or not supplied on a tangible medium which can be stored, processed or accessed, and re-used by the user, irrespective of whether the digital content is supplied in exchange for the payment of a price (Article 5). Apart from the subject, the main difference between a sales contract and a contract for the supply of digital content is that the latter does not entail paying the price. Regulation defines digital content as data which are produced and supplied in digital form, whether or not according to the buyer‟s specification, including video, audio, picture or written digital content, digital games, software and digital content which makes it possible to personalise existing hardware and software. Legal or financial advice provided in electronic form, electronic healthcare services, electronic communication services and networks, and associated facilities and services, gambling as well as the creation of new digital content and the amendment of existing digital content by consumers or any other interaction with creations of other users do not fall within the scope of definition of digital content, as per Article 2(j). The last categories of contracts governed by the CESL are related services contracts, irrespective of whether a separate price was agreed for the related service. According to Article 2 (m), related service means any service related to goods or digital content, such as installation, maintenance, repair or any other processing, provided by the seller of the goods and the supplier of the digital content under the sales contract, the contract for the supply of digital content

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or a separate related service contract which was concluded at the same time as the sales contract or the contract for the supply of digital content, excluding transport services, training services, telecommunications support services and financial services. Mixed-purpose contracts including any elements other than the sale of goods, the supply of digital content and the provision of related services as well as contracts linked to consumer credit are excluded by Article 6.

Personal scope of application The personal scope of application of the CESL is laid down by Article 7. The seller of the goods and the supplier of digital content must be a trader, who is described as any natural or legal person acting for purposes relating to that person‟s trade, business, craft or profession. Where all the parties to the contract are traders, the CESL may be used only if one of those parties is a small or medium-sized enterprise (“SME”). SMEs cannot employ more than 250 persons and must not have annual turnover exceeding EUR 50 million or an annual balance total exceeding EUR 43 million. However, member states have the option to extend the applicability of the CESL to contracts concluded by traders who are not qualified as SME (Article 13). Should the member state not exercise such an option, the choice of the CESL amounts to the choice of non-binding rules and the law of that member state decides on the legal significance of that choice. The CESL may be also used for consumer contracts, where the seller is a trader and the buyer is a consumer. Consumer for the purposes of the Regulation means any natural person who is acting for purposes which are outside that person‟s trade, business, craft or profession. Non-traders cannot use the CESL as a governing set of rules for their contracts.

The optional character of the CESL The last prerequisite of CESL applicability is the consent of the contracting parties. However, before agreeing on the use of the CESL, the law applicable to the contract must be determined. Such a determination results from the legal character of the CESL. The Regulation does not aim at replacing existing sales laws of member states, but at creating within each member state‟s national law a second contract law regime for contracts within its scope. This second regime should be identical throughout the EU and exist alongside the pre-existing rules of na-

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tional contract law. The fact that the CESL is a second contract law regime within a member state has its implications in conflict of law rules. CESL forms part of the legal system of every member state and cannot be applied in the absence of the law of the member state governing the contractual relation. Therefore, the agreement to apply CESL does not amount to a choice of law within the meaning of Article 3 of the Rome I Regulation and other relevant private international law rules. If all of the abovementioned conditions are fulfilled, the parties may validly opt into the CESL. The agreement on the use of the CESL is regulated by Article 8. Agreement is required both for consumer and business-to-business contracts. However, in case of the latter contracts, the consent is burdened with additional requirements. Firstly, the CESL cannot be chosen partially, but only in its entirety. Secondly, the consumer‟s consent must be given by an explicit statement which is separate from the statement indicating the agreement to conclude the contract. The confirmation of that agreement shall be provided by the trader to the consumer on a durable medium. Thirdly, before conclusion of the contract the trader must provide the consumer with the information notice. The lack of such a notice invalidates the agreement on the use of the CESL. If the CESL is validly chosen, it exclusively governs the matters addressed in its rules (Article 11). The matters which are not governed by the CESL are governed by the rules provided for by the applicable law determined in accordance with the relevant conflict of law rules.

ECHR—Progress on EU Accession Denise Ashmore Director C.E.E., British Law Centres The requirement for the EU to accede to the ECHR contained in Article 6 (2) TEU (as amended) could be seen as  a simple reflection of its 27 Member States‟ membership of the ECHR or  a logical development following its citation as an interpretation and guidance tool in the original Maastricht Treaty or  the necessary implementation of the changes required by the original ECJ opinion (2/94) which had advised that the European Community could not accede to the ECHR without a prior amendment of the founding treaties. or perhaps it can be seen as a combination of all three! Whichever view is taken, the words „shall accede‟ set into motion a complex procedure which is still continuing. Any final accession draft must be ratified by the 27 EU Member States as well as the remaining 20 ECHR signatory states, so there is no surprise that the drafting of the accession agreement will not only require careful negotiation but is likely to culminate in a delicate balancing act.

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Key issues are: How to resolve the roles to be played by the Strasbourg and Luxembourg courts?  How far can the Strasbourg court review EU law, whether directly or indirectly in its review of national law implementing measures?  Will the EU simply be treated as another ECHR member with similar rights, or if not, what is its status vis-a-vis other signatory states?  How will the EU ensure that the accession agreement will not affect the competences of the EU, so complying with obligations imposed on it by Protocol 8 TEU and preserving EU autonomy? The EU‟s track record on „hot potato‟ issues (in this category one could include issues of supremacy/ primacy as well as the effect of the ECHR and the Charter of Fundamental Freedoms) could tentatively be described as mixed. A fact not at all surprising when considering the need for consensus in 27 countries with different priorities, concerns and political restraints. The most obvious example of the difficulties faced is the manner in which the revised TEU dealt with EU supremacy/ primacy issues citing the jurisprudence of the CJEU rather than including a declaratory statement. So how will, not one, but two international bodies deal with this particular „hot potato‟? From the outset, procedural and institutional problems soon arose including; if there was to be judicial representative of the EU at the Strasbourg court what selection procedure should be adopted; should the EU be a co-respondent in cases considering national measures implementing EU law; should it be represented in the Council of Europe Council of Ministers? The 14th October 2011 draft accession agreement provides answers to some of these questions by firstly; involving the European Parliament in the judicial selection procedure, secondly; setting out a structure enabling the EU to be joined as co-respondent in appropriate cases, thirdly; enabling the EU to be represented at the Council of Europe meetings when changes to the ECHR itself are to be considered. An important issue that remains unclear however is whether the Strasbourg court will continue to apply the so-called three stage Bosphorous test (created in a case of the same name), to be applied when considering the compatibility of EU law with the ECHR. In brief this gives the court an apparent right to review EU law, whilst at the same conceding that the EU provides basic protection of ECHR fundamental rights and so a review should only be undertaken by the Strasbourg court when EU Member States have been permitted some discretion. Certainly no similar positive compliance presumption exists for other ECHR signatories! Still a draft is still only the first stage in this complicated process, whether ratification will follow remains to be seen. France and the UK have already been vocal in their concerns but will they ultimately be bound by the EU „loyalty requirements‟? The CJEU will also be asked for its opinion, will it find the negotiated agreement sufficient to comply with protocol 8 TEU? Clearly difficult challenges still remain to be overcome... an update on progress will follow in the next Obiter Dicta and we would also be interested to hear our reader‟s views on this issue...... (the text of the draft accession agreement can be found on the Council of Europe web site at www.coe.int)

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The European Union has also been active in the last six months, let’s look first at the proposed amendments to Directive 2005/36 on the recognition of professional qualifications to take account of some key CJEU judgments (see COM (2011) 883). Firstly; following the CJEU ruling that the notary profession is not automatically entitled to a public service exemption and so prevent national competition from other EU notaries, a special provision will be inserted confirming that “authentic instruments and other activities of authentication which require the seal of the host Member State shall be excluded from the provisions on free movement of services” Secondly; Member States are now required to allow partial access to their markets for those qualified professionals whose activities can ‘objectively be separated’ from other activities of that profession (Art 4f). It will be interesting to see how this will be interpreted in practice in each Member State . Thirdly; the provisions re-emphasise that Member States must compare applicants actual knowledge, experience and qualifications (when considering whether to grant recognition or to require/permit adaptation periods or aptitude tests) by stating that unsuccessful applicants should now be provided with a detailed ‘motivation’ statement detailing missing elements/reasons for refusals. This will surely not only facilitate an applicant’s right to challenges/ appeal refusals but also ,with an automatic right to re-apply, is likely to increase retake success rates. Lastly; the amendments and updating of the original Article 49 requirements for the implementation of common training frameworks seem likely to add support those arguing that there is no need for independent legislation regulating the legal profession. The lawyers’ directives on services (1977) and establishment (1998) are currently under review looking inter.alia as to whether ABS’s should continue to be refused recognition in other Member States. Trainees will therefore be pleased to note that diplomas and experience obtained prior to full professional qualification are also to be recognised for those seeking to transfer and complete their qualification in another Member State.

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State responsibility in International Investment Law Anna Karwowska Current student, 1st year Warsaw Centre

International Perspectives

Introduction

OBITER

DICTA

Responsibility of states belongs to the most complex issues of international investment law. This is because of serious doctrinal discrepancies, lack of binding documents that could codify the rules governing international investment law, and finally conflicting interests of the states. Therefore, state responsibility is one of the areas of international investment law, which, despite numerous attempts has not yet been codified. The purpose of this article is to present mainly the issue of responsibility of states in international investment law, which refers specifically to the breach of obligations of a bilateral character, e.g. under a bilateral treaty with another state.

1. Works of the International Law Commission on the Draft Articles on State Responsibility Generally, the sources of state responsibility may be found scattered throughout in the general principles of law, international customs and bilateral and multilateral international agreements signed by states. The only document that constitutes an attempt to fully codify the problem of state responsibility are the Draft Articles on State Responsibility. The International Law Commission decided to start research on state responsibility already in 1955. Project of the Draft Articles on Responsibility of states for violation of international law was finally adopted by The Commission in 2001. However, it is impossible to determine whether, and when, the Draft Articles shall become the basis for a legally binding treaty of universal scope of application. It should be added that the project not only codifies the standards of customary law, but includes also the solutions, which cannot be treated as norms

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of customary international law. The latter means that the project may be deemed as a significant progressive development of international law on state responsibility. 2. Explanations of main institutions used in the article A definition of international responsibility so far has not been included in any applicable regulations of international investment law. Nevertheless, one can assume that international responsibility is a mechanism for determining the circumstances in which the state is to bear the negative consequences, under international law, of conduct or omissions by governing bodies of that state. In regards to international investment law it should be noted that it has developed as an answer to globalization and cross-border investments. The area of international investment law has become a separate area of law due to its specific features, which are that the significant parties come from different jurisdictions (states and great investors, like multinational corporations) and the transnational subject of investments requiring harmonization of standards on a global level. Therefore, international investment law shall be considered as a form of public law because it involves the adjudicatory control of the exercise of public authority, â&#x20AC;&#x153;International providing non-state entities with direct rights of action against the investment lawâ&#x20AC;Ś has developed as an answer host state. Moreover, this public law system operates on the global level by drawing on both domestic and international law and creating to globalization and a legal regime granting primacy to the former. cross-border investmentsâ&#x20AC;? 3. Conditions of the responsibility of states in international investment law The conditions of the responsibility of states are regulated by the Draft Articles on Responsibility of States for Internationally Wrongful Acts. According to Article 2 of the Draft Articles, there is an internationally wrongful act of a state when conduct consisting of an action or omission: (a) is attributable to the state under international law; and (b) constitutes a breach of an international obligation of the state. Article 2 of the Draft Articles specifies the conditions required to establish the existence of an internationally wrongful act of the state, i.e. the constituent elements of such an act. Two elements are identified. First, the conduct in question must be attributable to the state under international law. Secondly, for responsibility to attach to the act of the state, the conduct of the state must be inconsistent with international law and constitute a breach of an international legal obligation in force for that state at that time, regardless of whether it occurred as a result of active or passive behaviour of the state. In the area of international investment law the most significant issues focus on the failure of the state to comply with its contractual obligations.

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Moreover, the act of the state needs to violate international law to the detriment of another subject of international law, by act or omission of the state‟s authorities. This very controversial issue regarding the definition of a state‟s entities in international investment law is described in the below section. The abovementioned articles are concerned with the whole field of state responsibility. They are not limited to breaches of obligations of a bilateral character. They apply to the whole field of the international obligations of states, no matter if the obligation is owed to one or several states, to an individual or group, or to the international community as a whole. Yet in international investment law the investigation of claims will not be based only on the Draft Articles, but also on the investment treaties, most commonly Bilateral Investment Treaties. However, the treaties do not contain a single model of dispute resolution; they vary significantly between each other. The only common point is the obligation to try to amicably resolve any controversy concerning the application or interpretation of the treaty between the parties.

4. State participation in investment disputes – attribution of acts to the state The state is responsible for its own conduct, which in practice means it bears responsibility for the acts of state bodies, because a state cannot act otherwise than through its bodies. A breach of an international obligation by a state is usually associated with acts of individuals or groups of individuals. According to the doctrine of international investment law, states may be responsible for the acts of the following subjects. 1 / Authorities of a state (legislative, executive, judicial). Acts of the state‟s authorities may be attributed to the state, even though they violated the instructions given to them (e.g. when they act outside the scope of their competences), provided that particular organ may be deemed as a competent authority of the state. 2 / Entities and individuals, which are not state bodies, but empowered to exercise elements of governmental authority, if in the particular case the entity or individual exercises such power. 3 / Authorities of another state, however, left at the first state‟s disposal and implementing elements of the latter state‟s authority. 4 / Persons or groups of persons, if they act on instructions given by the state, or are under the direction or control of that state. 5 / Persons or groups of persons performing elements of the authority of the state in the absence of official authority, or in situations in which the relevant official authority does not exercise its functions when circumstances require it to act.

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6 / Any other entities than those above-mentioned, if the state acknowledges and accepts these acts as its own. In addition, two basic elements based on case law and the key issues in this regard shall be taken into account . First, whether a state has had any influence on the management of the company. Second, whether the actions of an entity can be assigned to the state. In another words, only public actions may be assigned to the state, in contrary to commercial actions of a particular entity. Naturally, these distinctions may be in many cases extremely difficult. Nevertheless, in case there are any doubts, arbitration tribunals would have to decide whether they are dealing with the activities of the state or not, since that issue is indispensable to establish jurisdiction of the particular arbitration tribunal. 5. Circumstances precluding wrongfulness The most complex catalogue of the premises precluding wrongfulness of the states‟ acts may be found in the Draft Articles on Responsibility of States. When the following circumstances are fulfiled, the responsibility of the state is excluded. Thus, according to the Articles 20-25 of the Draft Articles, we can distinguish six circumstances precluding wrongfulness of the state‟s conduct. The first one of these circumstances is consent to the particular act committed by another state, which excludes the wrongfulness of that act in relation to the former state, provided that this act remains within the limits of that consent. Second circumstance concerns self-defence as a situation when the wrongfulness of an act of a state is precluded, if such self-defence is taken in conformity with the Charter of the United Nations. According to Article 22, the act of a state is not wrong if the act constitutes a countermeasure taken against the relevant state in accordance with chapter II of Part Three of the Draft Articles. Judicial decisions, states‟ practice and doctrine confirm the proposition that countermeasures meeting certain substantive and procedural conditions may be legitimate. The fourth circumstance, force majeure, is the occurrence of an irresistible force or of an unforeseen event, beyond the control of the state, making it materially impossible in the circumstances to perform the states‟ obligation. In the international investment treaties that circumstance is very rarely included, thus in case of force majeure the parties to the dispute shall refer to the customary law and to the Draft Articles. The last two circumstances are distress and necessity. The former one precludes the wrongfulness of conduct adopted by the state agent in circumstances where the agent had no other reasonable way of saving life. Unlike situations of force majeure, such agent acting under distress is not acting involuntarily, even though the choice is nullified by the situation of peril. Finally, the last one, necessity, may be invoked by a state as a ground for excluding the wrongfulness of an act in two situations. First, when the act is the only way for the state to safeguard

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an essential interest against a particular danger, and second, when the act does not seriously impair an essential interest of the state towards which the obligation exists, or of the international community as a whole. 6. Damages in International Investment Law State responsibility creates similar obligations to those held in common or civil law. State, exactly in the same way as natural or legal persons, shall comply with its covenants and redress wrongfulness done in the past. Therefore, the need to determine the responsibility of a state arises in case of a particular wrongfulness. Again, the best sources of inspiration for the regulations governing the issues of states responsibility in international investment law are the Draft Articles of the International Law Commission. A state that has failed to comply with its treaty obligations must repair the damage in such a way as to remove the effects of the breach and, if possible, restore the previous state of affairs. Execution of the obligations triggered by the stateâ&#x20AC;&#x;s responsibility shall take one of the following forms: (a) restitution, which means full restoration of the state of affairs which existed before the breach of law has occurred, (b) reparations, or compensation for damage, which usually takes the form of full financial compensation, (c) and sometimes also compensation for non-pecuniary damage, which means in practice the expression of regret, apology, or to ensure that in future the breach will not happen again, etc. However, that form of compensation does not play significant role in investment arbitration, due to the fact that aggrieved investors are especially interested in pecuniary forms of compensation. 7. Conclusion In summary, responsibility of states belongs to the most complex and difficult issues of international investment law. Therefore, one may be surprised that state responsibility is the area of international investment law, which has not yet been codified. I believe that this is because states, as key stakeholders, are not interested in waiving their authority in the area of dispute resolution due to their significant interests in the field of investments. However, in the age of globalization and cross-border investments, lack of binding documents that could codify consequences of mutual agreements between the parties, constitutes uncertainty in this field. Therefore, I am convinced that nowadays the most important objective of the modern investment law is to create universal regulation governing this area of law. So that general principles of law, international customs and rules found in bilateral and multilateral international agreements, as well as solutions proposed by the Draft Articles on State Responsibility, may have been gathered in one multilateral treaty.

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WWW........COM, ORG, NET, INFO? Domain names’ legal protection Julia Radanova Sofia University “St. Kliment Ohridski” alumna 2009 - 2011

In a world predominantly materialistically oriented, rarely do we associate names with value. In fact, names unless representing trademarks / tradenames are rarely the sole object of legal disputes. Is this still the case? Does this rule apply equally to the non-tangible realm of the Internet? Evolution has presented us with domain names, or the so called “user-friendly” names upon which various personal/ organization/corporate or governmental sites are hosted. In other words, the computer numeric address (a series of random digits organized in non-sensible combinations such as 171.64.14.237) are being transformed into meaningful words such as www.cambridge.edu. Along with the boom in the development of domains, the issues of their legal protection has grown immensely, as well as intensely. The current article shall concentrate thus on the very nature of domains, whether they qualify in any of the welldefined fields of law and what various methods for their legal protection stem from this accordingly. To begin with, a legal definition of a domain name should be presented. It could therefore be stated that a domain name is a letter-digit combination identifying explicitly an IP address, being granted by a registering association (a registrator). That definition as much as it might rightly reflect the very nature of domains, has not been adopted by any of the European legislators. The internet has long been perceived as a self-manageable, selfregulatory field, built upon the principle of non-interference, governed by the rules set out by ICANN (Internet Corporation for Assigned Names and Numbers). This alone, added to the fact that the internet naming and addressing system is a public resource that must be managed in the interests of the global Internet community, facilitated by organizations that are international in character, has proven to be a reason adequate enough to explain why the national parliaments have restricted themselves from introducing a national definition for domain names. The .eu Top Level Domain Regulation (REGULATION (EC) No 733/2002

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OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 22 April 2002 on the implementation of the .eu Top Level Domain) has further affirmed this tendency of not presenting a strict definition of domain names. And while the Regulation represents part of the EU secondary law and has some bearing over the matter, it could not be qualified as an act of law in charge of regulating relations other than the ones concerning the characteristics and obligations of the Registry in charge of .eu Top Level domain. That stated, it should be emphasized that the Regulation introduces in its art. 5 “Policy framework” the notion that public policy principles shall be additionally adopted. The legislator goes one step further and provides a definition of what this public policy shall entail, namely the policies for: 

extra-judicial conflicts settlement;



revocation of domain names, including the question of bona vacantia;



speculative and abusive registration of domain names;



issues of language and geographical concepts;



treatment of intellectual property and other rights.

Nevertheless, neither the aforementioned definition, nor the Regulation‟s other provisions, contain any specific stipulations to be implemented and enforced in separate cases seeking to secure protection of rights and legitimate expectations. Once again the legislator, this time the European one, has departed from its regulatory functions, leaving them to the powers entrusted in the Registries providing domain names registration. And while the regulation of domain names is put on the shoulders of different legal entities from separate states, legal protection of rights infringed by ill-will domain registration is still within the powers of national courts. This stated within the context of the continental legal system might trigger the necessity for filling the non-regulated gap through applying other sources of law. Such cases shall thus primarily rely on judges‟ creativity to construe the domain name in view through the perspective of other regulated intellectual property rights. The currently existing case law has thus formed an interesting trend. Courts are willing to grant protection of a party‟s interests being breached by a third party registration of a domain name through applying either of the following 3 well-established cause of actions, i.e.: 

Trademark infringement;



Trademark dilution;



Unfair competition rules;

Based on either of the aforementioned 3 action causes, the pending case could qualify as falling in either of the following categories:

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I. Cybersquatting â&#x20AC;&#x201C; in general, the term cybersquatting describes the registration of a domain name by a party who lacks a legitimate claim for the domain name and has the intent to either sell the name,prevent the trademark owner from gaining access to the name, or divert traffic. It should be noted that these cases are usually filed and heard on the basis of a trademark infringement. Although the depicted activities in certain cases do not meet all requirements of traditional trademark breaches, namely prior rights in the trademark, commercial use and likelihood of confusion, the courts have shown willingness to extend the existing case law as to prevent cybersquatters from maintaining control over the disputed domain names. Samples of the aforementioned could be found in cases where a domain name is registered but no site is hosted under it or the site hosted is not for commercial use. Had courts adopted the rigid application of the requirements for trademark breach or dilution, those cases would have been resolved as lacking trademark breaches for the â&#x20AC;&#x153;commercial useâ&#x20AC;? criteria has not been met. Such position has been shared and supported by the United States Court of Appeal, Ninth circuit in the case Panavision v. Toeppen. The case involves the malicious actions of Mr. Toeppen who had registered a multitude of domain names incorporating famous trademarks including panavision.com. When contacted by Panavision, owner of the trademark, he offered to sell the domain name to them for $13,000. Toeppen had previously offered similar sales to other trademark owners for domain names incorporating their marks. Nevertheless, the court was unwilling to support his argument that the requirements for dilution were not met because his use of the domain name to display the city of Pana, IL did not constitute commercial use. It was construed by the Court of Appeal that Toeppen's business is to register trademarks as domain names and then sell them to the rightful trademark owners. As such, the prerequisite for commercial use has been met. Panavision establishes the principle in cybersquatting cases that the offer to sell a domain name to the trademark holder constitutes use in commerce for the purposes of trademark infringement. Establishing commercial use, however, is not sufficient. The plaintiff must also show that there has been dilution. It has therefore been established that because of Toeppen's conduct, the capacity of the Panavision marks to identify and distinguish its goods and services on the Internet has been diminished and thus, the court finds that dilution has occurred. The same line has been adopted by another US court further against Mr. Toeppen. This time the plaintiff Intermatic Inc. disputed the registered www.intermatic.com domain by the respondent. The claimant had based its requests on his tradename and trademark, arguing that registration of the disputed domain in fact amounted to their breach. The following 7 criteria were therefore established that should be weighed to determine if there is a likelihood of confusion:

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1) the degree of similarity between the marks in appearance and suggestion; 2) the similarity of products or services for which the name is used; 3) the area and manner of concurrent use; 4) the degree of care likely to be exercised by consumers; 5) the strength of the complainant's mark; 6) actual confusion; 7) an intent on the part of the alleged infringer to palm off his products as those of another The test (previously applied also in Nike Inc. v. "Just Did It" Enterprises) is not whether the public would confuse the marks, but whether the viewer of an accused mark would be likely to associate the product or service with which it is connected with the source of products or services with which an earlier mark is connected. Therefore, the court found that Intermatic tradename/trademark entitles the respective Intermatic Inc. to its broad protection and should not be limited merely to its use upon articles to which it has been applied to, but should further expand to all activities the plaintiff undertakes. Additional reference in the case was made to a wording previously used in the case Polaroid Corp v. Polaroid Inc., namely: "in the instant case the plaintiff's trademark and trade name was original, it was coined and invented and was a strong name exclusively appropriated by the plaintiff. It was a name which through much effort and the expenditure of large amounts of money had acquired a widespread reputation and much good will, which plaintiff should not be required to share with defendant." The so far presented position should be upheld as applicable to cases of this nature. Moreover, it rightly reflects art. 8 from the Paris convention for the protection of Intellectual property rights of March 20, 1883, namely that protection of tradenames should be ensured, regardless of whether they form part of a trademark or not. Applied in the internet sphere and domain names, the aforementioned rule should be interpreted to deter third parties from registering domains bearing the tradenames of other companies. II. Typosquatting â&#x20AC;&#x201C; a close corollary to cybersquatting, typosquatting represents the registration of a variant of a famous trademark. Samples of such behaviour include the wwwpainewebber.com litigation (note the absence of the "." between the www and painewebber) and the suit by Microsoft and MSNBC against the registrants of misrosoft.com and mnsbc.com for infringement. The above stated argumentation finds its application to those cases as well. Additionally, protection in these cases could be successfully achieved through invoking unfair competition provisions by proving that the party having registered the domain name is seeking to either mislead consumers as to the origin of the goods/services or to benefit from a direct competitor famous trademark/tradename. In both cases it has been established that the domain registrant actions have resulted in its unjust enrichment to the detriment of the interests of the holder of the respective rights.

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III. Competing use – breaches that fall within this category generally refer to situations where one company registers a domain bearing the name of its direct competitor, thus effectively depriving it from the capacity to obtain it. As already stated above, the court has been willing to extend the interpretation of the applicable to the case provisions. Such for instance has been the case of Green Prods Co. v. Independence Corn By-Prods Co. (ICBP) No. C-97177-MJM, United States District Court, Iowa. Both companies were direct competitors in the corncob by-product industry. ICBP registered greenproducts.com, but had not yet posted a web site when Green Products sued them. Even though no web site had been posted, the court held that ICBP intended to use its confusing domain name to lure potential customers to the site once it was created. While customers might not be confused as to the affiliation once they got to the site, they may simply purchase ICBP's products rather than searching for Green Products' site and thus ICBP would benefit unfairly from the use of Green Products' name. The court acknowledged that this is a different interpretation of consumer confusion than is typically used to find trademark infringement. In addition, the following accurate analogy has been drawn in summary of the whole situation: “the case is.....analogous to saying that ICBP has the right to hang a sign in front of its store “as the Internet grows in that reads, "Green Products." When customers enter the store exprominence as a venue pecting to be able to see (and possibly, to buy) products made by for business, the courts Green Products, ICBP then announces, "Actually, this store isn't will be called upon to owned by Green Products; it‟s owned by ICBP. We don't sell anyapply traditional legal thing made by Green Products, but as long as you're here, we'll tell you how our products are better than Green Products." In essence, principles to new avenues of commerce” it could be concluded that in case of strong similarity between a trademark and a domain name registered by a competitor, the court beholds the position that such activity pursues to lure customers onto its web page and as such should be abandoned. IV. Legitimate competing claims disputes – these disputes could be further subdivided into the following 2 categories: disputes between a trademark holder and a tradename owner – the following could be best depicted by example of Gateway 2000 v. Gateway.com, Inc. Gateway.com, Inc. reserved the domain name gateway.com years before the large computer manufacturer Gateway 2000 attempted to register the name. Gateway 2000 sued but lost because the court found that Gateway.com had a legitimate reason for owning the domain name, namely its tradename, and had chosen it six years earlier - long before domain names had the value that they do today and before Gateway 2000 became a well-known trademark. One of the keys to the decision was that the defendant was not opportunistically trying to capture value by seizing a well-known mark.

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disputes where both parties attain trademark claims – it would seem that in these cases the rule “first come, first served” would apply and thus, the first to register the domain name would be able to keep it. Nevertheless, that has not been always the case as trademark infringements represent a mixed question of fact and law and the courts shall be evaluating the cases separately. All of the aforementioned categories of cases were reviewed in the light of court proceedings. Nevertheless, the same rights could be sought in the course of Alternative Dispute Resolution processes, either facilitated by ICANN – for domains ending in .com, .net, and .org and some country code-top-level domains or by the Czech Arbitration Court – for domains ending in .eu. Although these procedures do not follow the statutory provided ones, thus allowing a speedy and low-cost process, the arguments presented before are still valid. Nevertheless, the basis on which cases pending in front of these institutions are being resolved are mainly the Uniform Domain Name Dispute Resolution Policy, as adopted by ICANN, and the .eu Code of Conduct together with its Rules and Procedure, applied by authorized eu. domain registrars. This is further to support the position that no legal regulations in their strict sense govern the field of domain names. The question though whether we need those is still pending. It might be that the time where international organizations are more fit to create and enforce rights has come. In a globalized world that shall be more often the case. But for now, as the Internet grows in prominence as a venue for business, the courts will be called upon to apply traditional legal principles to new avenues of commerce until they are replaced by the more efficient and business oriented ways of resolving disputes.

A jus cogens exception to customary international law on State Immunity – no... or at least, not yet Will Odogwu Lecturer and Tutor, British Law Centre

Jurisdictional Immunities (Germany v Italy) – International Court of Justice (ICJ), Feb 3, 2012 Background to the dispute This dispute between Germany and Italy was triggered by the decision of the Italian courts to accept jurisdiction over proceedings brought by Italian nationals claiming compensation for acts of the German armed forces during WWII. The acts in question included forcible deportation and subjection to forced labour contrary to international humanitarian law (Ferrini v Fed-

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eral Republic of Germany, Decision No. 5044/2004, Italian Court of Cassation, 11 March 2004). Ultimately, the claim which was the subject of the proceedings in Ferrini succeeded before an Italian court and an order was made that Germany should pay compensation (judgment of the Court of Appeal of Florence dated 17 February 2011). Other claims relating to a massacre of civilians in Italy during the same period were also heard by the Italian courts and resulted in awards of compensation. These proceedings were also the subject of objection by Germany. Before the ICJ, Germany objected that by entertaining such proceedings and subsequently handing down judgment, the Italian courts had brought Italy into conflict with the customary international law right of States to immunity from the jurisdiction of the courts of other States. On the same grounds, Germany also objected to the issue by Italian courts of declarations that decisions of the Greek courts (upholding claims of Greek nationals arising from a massacre carried out by German armed forces in the Greek village of Distomo in 1944) were enforceable in Italy (Court of Appeal of Florence decisions dated 2 May 2005 and 13 June 2006). Also challenged by Germany was the acceptance by the Italian Land Registry at Como of the registration of a charge over Villa Vigoni (a property owned by the German State) pursuant to the decision granting a declaration of enforceability of the Greek judgments (a declaration of exequatur). The present note will follow the course of the Court‟s arguments on each of the three abovementioned issues. Due to limitations on the space available, the focus has been narrowed to those aspects of the Court‟s reasoning based on arguments of principle or practical considerations. It is hoped that this will at least provide some insights into the merits of the law as it currently stands (in the eyes of the ICJ). Summary of the lengthy survey of relevant state practice (primarily consisting of the decisions of national courts in various states) relied on by the Court to support its conclusions will be omitted. The reader interested in those important elements of the opinion addressing the significance and characterisation of existing state practice is directed to the full text of the ICJ opinion (which can be downloaded at http://www.icj-cij.org/ docket/files/143/16883.pdf ).

Scope of jurisdictional immunity from trial of the merits There was no denial by Italy of the long recognised rule at customary international law of the immunity of states from the jurisdiction of other states‟ courts; throughout, the arguments before the ICJ were concerned with identifying the scope of this immunity. However, the ICJ was at pains to restrict the legal issues to be resolved to those which were relevant to the resolution of the dispute at hand. For instance, this was the reply of the Court to arguments based on the applicability of state immunity to acts jure gestionis.

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It was readily acknowledged by the Court that statutes recognising a distinction between acts jure imperii (acts of a governmental nature such as deployment of armed forces) and acts jure gestionis (non-governmental acts of the state such as the commercial trading activities of state owned enterprises), under which it is only the former that are treated as immune from the jurisdiction of foreign domestic courts, have become common place. But it pointed out that the question of whether this approach was reflected in the rules of customary international law did not arise in the context of the present dispute since any exception from immunity arising under the head of acts jure gestionis plainly did not apply to the relevant acts of the German armed forces. In what was almost an aside, the Court briefly confirmed that the characterisation of a particular act or particular acts as acts jure imperii was not affected by whether the acts in question were legal or not under international law. In a foretaste of its reasoning later in the opinion, the Court stressed that the classification was relevant to the permissibility of the exercise of jurisdiction and as such it was sensible that it be regarded as a classification that operated independently from issues relating to the legality of the underlying acts, which would fall to be determined in the merits phase of proceedings. The upshot of this reasoning was that acts which otherwise would be classified as acts jure imperii must still be so classified even where the conduct they relate to is illegal under international law. Other arguments presented by Italy to justify its exercise of jurisdiction demanded to be addressed in a more head-on fashion by the Court; prime amongst these was the contention that jurisdiction could be assumed over acts jure imperii when the acts in question constituted torts causing death, personal injury or damage to property in the forum state asserting jurisdiction (the territorial tort principle). Whilst it did not decide the issue, the Court appeared prepared to accept that such an exception to the rule of state immunity may well have become part of customary international law. Nevertheless, after a review of various manifestations of state practice such as the United Nations Convention on the Jurisdictional Immunities of States and their Property, „the UN Convention‟ (not yet entered into force) and the European Convention on State Immunity, „the European Convention‟ (to which Italy is not a signatory), the respective negotiating histories of those two international instruments, as well as national laws and court decisions, the ICJ arrived at the view that the territorial tort principle did not extend to the acts of armed forces. According to the Court‟s analysis, it was only in Italy that court decisions had been rendered which applied the territorial tort exception to the armed forces of another state. Even the practice of Greece, the jurisdiction from which one of the decisions recognised as enforceable in Italy had originated, did not when viewed as a whole indicate the acceptance of the application of that exception to the conduct of armed forces. In support of that view the Court referred to the refusal of the relevant Minister of the Greek Government to grant the permission required under Greek law for execution of the Distomo massacre judgment against

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Germany and the decision of the Special Supreme Court of Greece, which, within the Greek legal system, gives rulings on matters of general international law, declaring that the Supreme Court of Greece had been wrong to find state immunity inapplicable to the Distomo litigation. This was a part of the opinion which, in arriving at a conclusion on the current state of customary international law, relied on evidence of state practice virtually exclusively. In contrast to other issues in contention between the parties, it seems that the Court was not taken with any principled line of reasoning which could serve to bolster the current limitation on the principle that was suggested by the available evidence of state practice. Finally, Italy put forth a series of arguments which turned upon the characterisation of the relevant conduct of Germany as well as the circumstances of the case. These arguments were threefold: first, that the conduct at issue was a serious violation of international humanitarian law and state immunity should not apply in the case of such violations; secondly, that the norms of international law that had been infringed had the status of jus cogens and therefore no derogation from them is permitted, including through the application of any inconsistent legal rule; and finally, that since the claimants in these proceedings had been denied redress by other means, the assumption of jurisdiction by the Italian courts was necessary. Leaving aside for present purposes review of the detailed discussion of relevant state practice, the Court began by making it clear that acceptance of the first argument mentioned above, grounded in the gravity to be accorded to Germany‟s violations due to their nature as manifest infringements of international humanitarian law, appeared to be inherently incompatible with the core function of the rules on state immunity. Since, paradoxically, the national court would be required to go into the merits of the dispute in order to decide whether it was entitled to enter into such an inquiry. On the other hand, if the argument were accepted that a national court could satisfy itself simply by noting that serious violations were alleged, the rules of state immunity could be circumvented at will by claimants through adept construction of the head of claim. As for Italy‟s third argument, which the ICJ characterised as „the last resort argument‟, this would give rise to difficult questions which the relevant court may be poorly placed to resolve. For instance assessment of the availability of remedies through other channels may require an appreciation of the detailed state of contemporaneous inter-state negotiations. Additionally, the long established practice of states settling claims relating to the actions of armed forces through the payment of lump sum reparation by the state in breach (state A) to the victim state (state B) led the Court to further practical objections to Italy‟s proposed exception to immunity. Under the terms of such inter-state agreements, the victim state is generally regarded as free to decide for itself the best use of the compensatory funds. This gives rise to the prospect that the question of whether the courts of the victim state could entertain the claims of individual victims against the state in breach will potentially depend on whether and how that victim state has opted to distribute the funds to the individuals in question.

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Despite these observations, the Court did express its concern that the specific terms under which Germany allowed for the compensation of foreign nationals under its domestic legislation had an unusually restrictive effect on claimants who had been serving in the Italian armed forces at the time of their deportation to Germany. It acknowledged that the only hope remaining for such claimants may well be further inter-state negotiations between Germany and Italy. Nevertheless, these considerations did not prevent the ICJ concluding (after noting the absence of any state practice to the contrary) that customary international law did not, at the present time, recognise an exception in the form argued for by Italy. In relation to the argument based on the jus cogens status of the international law rules breached, the Court viewed the contention that there was a conflict between the nonderogable, supreme nature of jus cogens rules and the operation of the rules of state immunity in proceedings arising from jus cogens violations as mistaken. For the Court, jus cogens rules operated on the substantive level and state immunity on the procedural. That one procedural avenue was closed off did not alter the international responsibility and the obligation to make reparation of the state implicated in the violation of the jus cogens norm. For example, that a national court was prevented from assuming jurisdiction over a claim would not prevent the international responsibility of the state in question being triggered. Nor could it be maintained, in the view of the Court, that the application of state immunity in such situations could be characterised as „recognizing as lawful a situation created by the breach of a jus cogens rule, or rendering aid and assistance in maintaining that situation‟; accordingly, the principle in Article 41 of the International Law Commission‟s Articles on State Responsibility was not contravened. During this part of the opinion, the Court stressed that no aspersion was cast upon the correctness of the UK House of Lords decision in Pinochet (No.3) [2000] 1 AC 147; it simply was not relevant. It observed that the UK‟s highest court was there concerned with the rules relating to the exercise of criminal jurisdiction as well as the particular wording of the 1984 United Nations Convention Against Torture (the latter not being applicable to the wartime acts of the German government). Furthermore, in the later case of Jones v Saudi Arabia [2007] 1 AC 270 (also concerning allegations of torture), the House of Lords had itself distinguished its earlier Pinochet ruling as irrelevant to a dispute which did not concern criminal charges, but rather a civil claim for monetary damages. Italy‟s contention that the cumulative effect of the three arguments (gravity of violation, jus cogens and „last resort‟) should be held to override the rules on state immunity failed to persuade the Court. For the ICJ, acceptance of such a proposition would be to encourage the national court seised of the dispute to embark on a balancing exercise involving assessment of ―the respective weight, on the one hand, of the various circumstances that might justify the exercise of its jurisdiction, and, on the other hand, of the interests attaching to the protection of immunity‖. Here, the Court relied on similar reasoning to that which it had regarded as pertinent to the question of whether the gravity of the violations of international law raised could justify

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an exception to state immunity: the balancing exercise would precede the national court‟s establishment of its own jurisdiction to try the issues, even though such an exercise would itself require in-depth inquiry into the merits and surrounding circumstances.

The measures of constraint granted against Villa Vigoni Next the Court considered the legality of the measures of constraint registered by the Italian Land Registry against property owned by the German State (pursuant to the recognition in Italy of a Greek judicial decision arising from the Distomo Massacre perpetrated during WWII). This point was dealt with in quite short order by the ICJ. It began its analysis by observing that it is widely accepted that the rules recognising the right of states to immunity from measures of enforcement against their property were more generous than those relating to the state‟s immunity from being subjected to the trial process in foreign courts. In arriving at the specific rules applicable to the circumstances before it, the Court accepted that the core proposition of law contained in Article 19 of the United Nations Convention reflected state practice, evidenced in the main by national judicial decisions. It set out the minimum conditions that have to be satisfied in order to render an order of constraint over a state‟s property internationally lawful: ―...the property in question must be in use for an activity not pursuing government noncommercial purposes, or... [it is shown that] the State which owns the property has expressly consented to the taking of a measure of constraint, or that that State has allocated the property in question for the satisfaction of a judicial claim....‖ Since none of these conditions were satisfied in relation to Villa Vigoni, the measure of constraint issued against the property was not internationally lawful.

Recognition of the Greek judgments in the Distomo case as enforceable in Italy Again, this was an issue which the ICJ felt it was able to deal with quite briefly. Both states party to the dispute argued on the basis that the question of whether the declaration by the Italian courts of the enforceability in Italy of the Greek judgments was contrary to the rules on state immunity depended on whether the proceedings before the Greek courts had infringed those rules. In the view of the ICJ, the question to be asked was a different one. Since declaring the Greek judgments enforceable in Italy (granting a declaration of exequatur) amounted to giving the judgments the same enforceability as though they had been rendered by Italian courts deciding the merits of the relevant disputes, the question deciding the conformity of such a declaration with the international rules on state immunity was whether the Italian courts would have had jurisdiction under those rules had identical proceedings been brought in Italy rather than Greece. Relying on its earlier conclusions relating to Italian proceedings on the

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merits that were directly comparable to those in the Distomo case, the Court concluded that the Italian courts would not have had such jurisdiction and accordingly that they had infringed the rules on state immunity by granting the declarations of exequatur. It was noted by the Court that its preferred approach did away with any need for a pronouncement upon the lawfulness of the exercise of jurisdiction by the Greek courts (which it observed was not a matter which it could in any event decide given that Greece did not have the status of a party in the proceedings before it).

Concluding remarks Germany v Italy (Jurisdictional Immunities) is a relatively rare example of a case where this aspect of public international law – state immunity – has been considered at length by an international tribunal. One of the unusual features of this area of international law is that the elaboration of its principles has most frequently fallen to national courts. Certainly, the impression given by the Germany v Italy opinion is that the ICJ is well-satisfied with the way national courts have gone about this task (bar the obvious exception of the Court of Cassation in Italy). Although the ICJ was careful to ground its conclusions in a careful survey of what it judged to be relevant state practice, it often put principled reasoning and practical considerations at the forefront of its analysis and did not engage in a mere quasi-statistical „head-count‟ of the numbers of instances of state practice pointing in direction X compared with those pointing in direction Y. Having said this, none of the views it arrived at as to the preponderance of relevant state practice created any real tension with the thrust of its reasoning based on wider considerations. In the coming weeks and months it will be interesting to observe how the opinion is received by academics and others active in this particular field of public international law. The reporting requirements imposed on lawyers by EU money laundering legislation (Directive 91/308) is under challenge before the ECHR Strasbourg court in a case Q: What do you have brought a Paris lawyer Patrick Michaud when a lawyer is buried (case 12323/11) who alleges a breach of up to his neck in wet Articles 6, 7 and 8 of the Convention in the cement? failure to recognise and protect lawyer/ cliA: Not enough cement ent confidentiality. No conflict was found when this was raised before the CJEU who found no breach of Article Q: What do lawyers use 6 ECHR (presumption of innocence and right to fair trial), but will a for birth control? different view be taken by the Human Rights Court, perhaps under A. Their personalities Article 8 ECHR (respect for privacy in family and private life)?

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Human Trafficking has become an “Ordinary” Economic Crime Dr Janusz Bojarski Department of Law and Administration, Nicolaus Copernicus University Torun

When we think about slavery and trade in humans, there are two main pictures which appear immediately: the traditional one – slaves working on cotton plantations in southern states of the USA in 19th century and the contemporary one – women and maybe children forced to prostitution or sexually abused in some other manner. According to Wikipedia, human trafficking for the purpose of sexual exploitation is a major factor in the contemporary sex slavery. The first Polish plan of action against this phenomenon was adopted by the Council of Ministers in 2003. The reason for its creation was a long period of exploitation of women in prostitution. The majority of victims came from neighboring states: Ukraine and Belarus. Already then Poland had a triple role: a country of origin, country of transit and a destination country. Some deeper research regarding human trafficking shows that sexual abuse is only one and even not always the leading form of contemporary slavery. Youth Advocate Program International, a non-profit organization from Washington (DC), estimates that 2 million children worldwide are commercially sexually exploited every year and between 15 and 20 million children are working as slaves at this very moment. What is the most shocking, there are more slaves in the world today than were seized from Africa in 400 years of the trans-Atlantic slave trade. The United Nations Office on Drugs and Crime (UNODC) Executive Director Yury Fedotov said recently that “Criminal proceeds from human trafficking amount to some $60,000 a minute.” UNODC estimated that human trafficking generated $32 billion annually, rivaling the profits reaped by the illicit trade in arms and drugs. Different sources present different data regarding size of groups of slaves. Sometimes these sources show the group of sexually exploited slaves as bigger, other times forced or “ordinary” labour. Anyway the problem of trading of humans became recognized in 1990s. At the beginning attention was focused on prostitution. There were some reasons for this situation: Moralistic attitude of evangelic Christians from the southern states of the USA, who were very active in the fight against forced sexual services; and also the attention of the mass media – stories connected to sex and violence are one of the best products to sell in newspapers and TV. Just in recent years humans trafficking gained much wider understanding and it became common knowledge that victims of this crime

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could be women and men and people of any age. At present, forced labour is so widespread because of two factors existing together: Firstly, it is used in areas of work where, as a rule, citizens of that country do not want to be employed. So there is no competition between slaves and legal workers. Second one, slaves are cheaper than ever before. In 19th century slaves working at cotton plantations were expensive, because they were substitutes of not existing yet machines. At present slaves are much cheaper than machines. E. B. Skinner proved how easy is to buy a child for domestic help or whatever you want, for $50, traveling just 5 hours from New York. And sometimes slaves are for free. We should remember that that human trafficking, slavery and forced labour are, as every crime, very different phenomena. There is not always a chain of criminals who kidnap, disposal and exploit victim. Sometimes the scheme of forced labour is organized by a state. For example in Uzbekistan, where children from rural schools as young as nine, are forced to pick cotton by hand for up to three months in order to fill the shortfall in voluntary adult labour. In result of weeks of such work they are exhausted and suffering from ill-health and malnutrition. Penalties for these who not collect a daily quota (up to 50 kg) include beatings, detention or threats that their grades will suffer. Fugitives and those refusing to work are threatened with expulsion from school. Of course they are not paid or receive little pay. A similar situation applies to adult local administration employees, teachers, factory workers and doctors who are forced to leave their jobs for weeks at a time and pick cotton with no additional compensation. It must also be noted that the EU allows Uzbekistan to benefit from reduced trading tariffs for its cotton imports. According to Anti-Slavery International‟s research, children in the Ivory Coast are forced to spend long days hacking open cocoa pods with machetes, handling dangerous pesticides and carrying heavy loads. This situation also could be called contemporary slavery at cocoa farms in the country which produces almost 40% of the world‟s cocoa. When we include economic and social pressure as a means to exploit workers in a dimension wider than was agreed in a contract, we can recognized many Chinese cases as forced labour. For example workers assembling iPhones, iPads and other devices for Apple suppliers often labor in harsh conditions. In an article printed in New York Times we can read that “Employees work excessive overtime, in some cases seven days a week, and live in crowded dorms. Some say they stand so long that their legs swell until they can hardly walk. Under-age workers have helped build Apple‟s products, and the company‟s suppliers have improperly disposed of hazardous waste and falsified records, according to company reports and advocacy groups that, within China, are often considered reliable, independent monitors”. There are similar situations in Europe. ILO research made at the beginning of 21 st century dis-

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covered forced labour in Germany in such areas as (among others) agriculture and the food processing industry, the construction industry, restaurant, hotel and catering businesses and small sweatshop production. Exploitation was not always connected to violence or threats. Sometimes swindles were enough. Forced labour took place both in the context of illegal employment and behind legal façades of regular contract or seasonal work. Also research made by the Human Trafficking Studies Centre at Warsaw University confirmed that legality of residence and having a work permit does not exclude the existence of forced labour. Sectors of the economy particularly susceptible in Poland are similar to German ones: agriculture, construction, trade and domestic help. In the Polish criminal code humans trafficking is placed in the chapter focused on offences against freedom. But more and more often the result of this crime is reduction of costs of economic activity and achieving greater competitiveness in this area. Exploitation of forced labour is a worldwide phenomenon which sometimes has an important influence on the economic situation of a country. It also could have a strong influence on great multinational corporations. In the present situation it seems that a new, more updated attitude to fight this crime is needed.



State the job you’re applying for.

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Where you found out about it (advert in The Guardian newspaper etc. - organisations like to know which of their advertising sources are being successful)

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When you're available to start work (and end if it's a placement)

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Why you're interested in that type of work

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Why the company attracts you (for example, if it's a small company say you prefer to work for a small friendly organisation!)

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Summarise your strengths and how they might be an advantage to the organisation.

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Relate your skills to the competencies required in the job.

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Mention any dates that you won't be available for interview

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Thank the employer and say you look forward to hearing from them soon.

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If you start with a name (e.g. "Dear Mr Smith") you should end with "Yours sincerely". If you start with "Dear Sir or Madam" you should end with "Yours faithfully".

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CEEMC Competition Question 2012 The Central and East European Moot competition (CEEMC) now in its eighteenth year, involves teams of law students from a number of countries in Central and Eastern Europe who will compete against each other in the simulated forum of the Court of Justice to the European Union in Luxembourg. This year's CEEMC will be held for the first time on the lovely island of Malta, so providing an additional attraction to the traditional moot experience. A.G. Sharpston will again head the panel of judges, accompanied by other EU experts from the CJEU and academia and will also host a Best Speaker prize in her chambers in Luxembourg later in the year... a unique, once in a lifetime experience as last year's winner makes clear in her report. Due to its geographical location, Malta has a particular interest in this year's subject matter, immigration and third country national rights so teams will be considering highly topical issues which remain controversial in many EU member states. Achieving the correct balance in awarding citizenship and related rights remains a challenge for the EU so it will be interesting to see the solutions proposed by competitors during the event. The competition details can be found on the dedicated web site at www.ceemc.co.uk and interested teams are required to send an initial expression of interest by 28th February!!! However, to excite your tastebuds you can read the full question below and then read a report from the 2011 Croatian team on the exciting opportunities that await the winners!!! ABDUL Abdul was born in Syria, where as a politically active teenager he frequently took part in anti-government demonstrations and protest marches. In January 2009, Abdul was obliged to leave Syria when his political activity started to raise the threat of reprisals due to his being targeted by the Syrian regime and went to live in Mulysa (an EU Member State located in the middle of the Mediterranean). There his family persuaded him to enter into an arranged married with Fadiyah, who is also of Syrian descent but with Mulysan nationality. Although Abdul was initially reluctant to marry in this way, both he and Fadiyah did not wish to go against their families‟ custom and wishes; and they duly married. In December 2009 Fadiyah gave birth to Zarif, their son, and for a while their home life seemed stable. Abdul began working in a factory on the same street as where they live and after work he spent as much time as possible with Zarif. Abdul, however, becomes increasingly frustrated with Fadiyah‟s “western” political outlook and her indifference to the plight of those who live in Syria. He also remains critical of the Syrian government and continues to be actively involved in protests and demonstrations against the Syrian government. When the Arab Spring erupts and the Syrian government cracks down on political dissidents, Abdul‟s frustration at events in his homeland, combined with his anger at

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Fadiyah‟s political apathy, leads him to violence against her which culminates in police intervention followed by a domestic violence complaint and an order requiring Abdul to vacate the matrimonial home. At the same time Abdul is charged and convicted of the crime of assault, in respect of which he receives a fine. Fadiyah simultaneously commences divorce proceedings against Abdul seeking sole custody of Zarif which, although bitterly contested by Abdul, she is eventually granted. Abdul is awarded weekly access rights but in view of the domestic violence concerns and Abdul‟s status as a foreign national, the court requires these access visits to take place under the supervision of the local social services. The social worker assigned to the case reports his satisfaction with the access visits, commenting on the very close ties that clearly exist between Abdul and his son. Abdul remains the sole provider for the family, paying child maintenance to support Fadiyah and Zarif. In the interim, Abdul has become more actively involved as a member of the “Free Syria” group (the “FSG”), a Mulysabased political group of ethnic Syrians who seek to encourage the overthrow of the existing Syrian government. The FSG has staged numerous protests outside the Syrian embassy in Mulysa. Abdul also acts as a spokesman for the group, participating in a number of televised interviews during which he not only calls upon the international community to support the rebel forces in Syria and to assist them in overthrowing the Syrian government but also calls upon all Mulysa-based Syrians to join the struggle for a free Syria, stating that this should be “...by all means necessary, including armed force if required.” This last statement is particularly controversial, since it was made shortly after an FSGorganised protest which erupted into violence and multiple arrests. Abdul was not present at that protest. The greater frequency of FSG-organised demonstrations and the regularity of Abdul‟s television appearances as an FSG spokesman increase his notoriety and he becomes a particularly detested opponent of the Syria government. This makes life very dangerous for his remaining family in Syria who, following encouragement from Abdul, decide to flee across the border into Turkey in January 2011. On their arrival in Turkey they are accommodated in a camp set up by a temporary UN agency (the UN Syrian Migration Unit – „UNSMU‟) specifically set up to provide care for those who fled Syria during or after the Arab Spring. They then immediately contact Abdul who implores them to leave the UNSMU camp and persuades them to seek to join him in Mulysa (they duly do so – see below). Six months later however, Abdul receives a notice from the Minister for the Mulysan Home Office (Border Agency) informing him that he is no longer eligible to remain in Mulysa and that, unless he leaves voluntarily, he will be deported within 60 days to Turkey under the terms of an agreement between Mulysa and Turkey (both being states signatory to the ECHR) that Turkey will accept, receive and assist refugees seeking asylum from the Syrian regime. Turkey has been recognised as a safe third country pursuant to Article 27 of Directive 2005/85 (minimum standards on procedures in Member States for granting and withdrawing refugee status – the „Refugee Procedures Directive‟). The reasons given by the Minister for the deportation decision are as follows: (i) „Following the dissolution of your marriage, you no longer have any right to stay in Mulysa. Moreover, you cannot claim any right to stay based upon Directive 2004/38 (the Citizens Rights Directive) as you are not the husband of a European citizen who has exercised her right of free movement; (ii) „Further or alternatively, I have concluded that you represent a genuine, present and sufficiently serious threat to Mulysa‟s public policy and public security. For that reason and regardless of any right to residence which he might otherwise enjoy, I am entitled to make an order for your deportation and have decided that it would be in the public interest to do so.‟

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The notice further informs Abdul that he has the right to appeal this decision before the Special Immigration Appeals Commission (SIAC) and that a State-funded lawyer will be provided to him for these purposes. At Abdul‟s suggestion, Fadiyah also consults the lawyer on behalf of Zarif and herself: she is concerned that Abdul‟s deportation would not only remove the family‟s only financial support but would also be detrimental for Zafir in that it would deprive Zarif of his father at a vital stage in his upbringing. The lawyer accordingly both a) appeals the deportation order and b) applies for an interim order to suspend enforcement of the Minister‟s decision, arguing that: (i) The decision is discriminatory and contrary to the provisions of Articles 18 and/or 20 TFEU and Articles 9 and 10 of the Charter of Fundamental Rights of the European Union as it fails to take due account of Zarif‟s right to family life pursuant to Article 8 ECHR and the supporting jurisprudence of the European Court of Human Rights (in particular the case of Berrehab v. The Netherlands (1988)) (ii) The deportation of Abdul would deprive two EU citizens (Faddiyah and Zarif) of the genuine enjoyment of the substance of their EU citizenship rights, and so is contrary to Article 20 and / or Article 21 TFEU. On his lawyer‟s advice, as an alternative route Abdul simultaneously lodges an application with the Mulysan Border Agency to be granted refugee status pursuant to Directive 2004/83/EC (minimum standards for the qualification and status of third country nationals or stateless persons as refugees (etc): the „Refugees Directive‟), on the basis that he is a Syrian national who, owing to a well-founded fear of being persecuted for reasons of political opinion or membership of a particular social group, is outside Syria and is unable or, owing to such fear, is unwilling to avail himself of the protection of Syria. The Border Agency refuses his request for refugee status, stating that Abdul falls within the scope of Article 12(1)(b) of Directive 2004/83/EC (having been recognised as a spouse of an Mulysan national). Because he has been „recognised by the competent authorities as having rights which are equivalent to those which are attached to the possession of [Mulysan] nationality‟, he is excluded from the status of refugee. On the same day, Abdul is also advised that SIAC has upheld the deportation decision against him and has likewise upheld the order to deport him within 60 days. Abdul now appeals to the Mulysan Court of Appeal on the grounds cited before – additionally, he argues that his case raises complex issues of EU law and that these should be referred to the Court of Justice of the European Union („CJEU‟) for guidance as to their correct interpretation. The Court of Appeal decides to suspend the appeal proceedings and refer a number of questions to the CJEU under the preliminary ruling procedure contained in Article 267 TFEU. The Mulysan government, knowing how politically sensitive these particular immigration issues are in Mulysa, is appalled at the Court of Appeal‟s decision. Moreover, it believes that the preliminary reference proceedings will force it to disclose detailed and confidential internal documents containing information about government policies and actions towards this particular category of migrants in order to argue its case competently before the CJEU. It knows that Abdul, as a party to the case, would have full access to its submissions and supporting material; and the government fears that these could be leaked to the media or made use of by FSG. It therefore seeks an injunction preventing Abdul from disclosing or making use of any materials to which he may be given access in the course of the Article 267 TFEU proceedings, in particular preventing his communicating or sharing any information received with the FSG or making use of it himself in his capacity as an FSG spokesman and activist. The Court of Appeal agrees to exercise the discretion granted to it under the national Rules of Procedure and duly grants the requested injunction, basing its decision on public policy grounds, despite the energetic protest of both Abdul and his lawyer who argue that such an order is outside the powers of the national court. The Court of Appeal refuses to

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lift the injunction but does decide to add this issue as a further question to be referred to the CJEU. PRELIMINARY REFERENCE : QUESTIONS RAISED BY COURT Citizenship of the Union 1. Is Article 20 and / or Article 21 TFEU to be interpreted as precluding a Member State from refusing to grant to a third country national – whose divorced spouse and minor children are Union citizens who have not as yet exercised rights of free movement within the European Union – residence in the Member State of residence of his divorced spouse and child, who are nationals of that Member State, where a) both the former spouse and child are financially dependent upon that third country national; and/ or b) the minor child would thereby be deprived of all contact and rights of weekly access with his father? 2. If either question 1 a) or b) is answered in the affirmative and a right of residence exists by virtue of European Union law, are the rights that follow subject to the principle of non-discrimination and so equated to the detailed rights set out in Directive 2004/38 (the Citizens‟ Rights Directive) thereby either a) precluding a Member State from refusing equivalent status and rights to those available to a third country national divorced spouse of an EU citizen who has exercised rights of free movement as set out in Directive 2004/38, in particular rights of residence and continued access to his minor child (Article 13 thereof); and/ or b) precluding a Member State from removing that right of residence from a third country national divorced spouse save on grounds similar to those set out in Article 27 of the Citizens‟ Right Directive? The Confidentiality injunction 3. Is the national court of a Member State (which makes a preliminary reference to the Court of Justice of the European Union pursuant to Article 267 TFEU), precluded from making an order affecting the access to or use of documents disclosed to any party during the course of the reference proceedings? The Refugees Directive 4. Was, or is, a person in the position of Abdul a person “recognised by the competent authorities of the country in which he or she has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country; or rights and obligations equivalent to those”, so that he is excluded from refugee status by virtue of Article 12(1)(b) of Directive 2004/83 (the Refugees Directive)? ABDUL‟S FAMILY (General) As already indicated, Abdul‟s high media profile in Mulysa and his vocal criticism of the Syrian governmental regime caused his family to fear repression and to flee to Turkey where they stayed for one month under the protection of UNSMU.They found the conditions in the camp unsanitary (due to the overwhelming numbers of fleeing immigrants) and also did not so feel safe so at Abdul‟s suggestion they left the camp on 10 January 2011 and applied for and were granted refugee status in Mulysa in February 2011. At that time Mulysan domestic law (the Refugee Act 2011), was more generous in its definition of “refugee” than the minimum standards set by Directive 2004/83 (or indeed by the Geneva Convention of 28 July1951 Relating to the

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Status of Refugees: „the 1951 Convention‟), inasmuch as it did not exclude from from its scope „persons who are at present receiving protection or assistance from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees‟ as permitted by Article 12(1)(a) of Directive 2004/83 and Article 1D of the 1951 Convention. However, the Refugee Act 2011 contained no specific provisions concerning the granting of “subsidiary forms of protection” as mentioned in Article 2 (e) and (f) of Directive 2004/83. Mulysa‟s initial response to the crisis in Syria was to grant refugee status to 100 Syrians, including Abdul‟s family („the Syrian Immigrants Group‟), and to issue them all with a 1-year residence permit. However, shortly afterwards, the FSG‟s campaign to draw the world‟s attention to the plight of Syria led to increased violence and arrests in Mulysa. As a result, Mulysan citizens ceased to sympathise with Syria refugees and started reacting negatively to the unrest created and the protests involving the resident Syrian population. This situation is not helped by a number of stories in the „popular‟ national press which portray the newest Syrian refugees, and those Syrians previously resident in Mulysa, as a drain on the State budget; comparing them to rabbits reproducing courtesy of state benefits; itself a comment on the contrasting situation for nativeborn Mulysans whose birth rate is declining. The main opposition party in Mulysa begins to focus on the “overly favourable treatment of Syrian citizens at a time of economic crisis when charity should begin at home!” With a general election looming, the “Syrian question” looks increasingly likely to have an important influence on Mulysan voters‟ political preferences. The Mulysan Prime Minister dismisses the Minister for Foreign Affairs, replacing him with a more ruthless colleague who promises to reverse the “softly-softly” approach of his predecessor. The government then amends the Refugee Act. The effect of that amendment is twofold: (i) the definition of those excluded from refugee status is aligned precisely with the various exclusions contained in Article 12 of the Refugees Directive (including, in particular, Article 12(1)(a)) and (ii) the earlier, more generous, definition of refugee is abolished retroactively with effect from 1 January 2011. In June 2011 Mulysa not only applies this new, narrower, definition of refugee to new applicants but also informs the 100 persons who were earlier granted refugee status (i.e., the Syrian Immigrants Group) that their previous status is being revoked. All, including Abdul‟s family, are held to have voluntarily given up the protection offered by UNSMU by moving from Turkey to Mulysa and are served with notices of deportation returning them to Turkey, which will become effective in 30 days. The Syrian Immigrants Group appeal the decision allegedly revoking their status, arguing that (i) Mulysa‟s attempt to apply a new definition of refugee retroactively is contrary to the spirit of the Geneva Convention, the Refugees Directive and general principles of EU law (such as, in particular, legitimate expectations); (ii) some of the persons affected, including Abdul‟s father, have found employment during their short time in Mulysa and therefore raise no public policy concerns as to whether they are self-sufficient and able to support their dependents; (iii) Some of the persons affected, including Abdul‟s father, did not (on a true interpretation of the facts) leave UNSMU protection „voluntarily‟, and they should now therefore be afforded automatic refugee status in accordance with Article 12(1)(a) of the Refugees Directive; (iv) a block deportation of this nature is contrary to the provisions of Articles 1, 4 and 18 of the Charter of Fundamental Rights of the European Union, as well as Article 19(1) thereof, which specifically prohibits collective expulsions.

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They further argue that even if Mulysa is entitled to exclude them from the category of refugee pursuant to Article 12 (1) (a) of the Refugees Directive, they still fall within the definition of persons „eligible for subsidiary protection‟ contained in Article 2(e) and (f) of that Directive; and (i) the original terms of the Refugee Act 2011 combined with (ii) the original decision by the Mulysan authorities to admit then and grant them both refugee status and a one year residence permit are express recognitions of that fact. The Syrian Immigrants Group‟s case is referred to the Musylan Immigration Tribunal which, in an expedited hearing, upholds the original deportation decision. They appeal to the Mulysan Court of Appeal, which expedites the appeal and joins it to Abdul‟s appeal. Following legal advice and with the permission of the court, the Syrian Immigrants Group has added a claim for damages against the State to compensate them individually and collectively for the loss and distress caused. The Mulysan Court of Appeal decides to add the following questions to those already being referred to the CJEU in Abdul‟s appeal: 5. Where a Member State has implemented a minimum standards directive (such as Directive 2004/83) in such a manner as to give a wider definition to the meaning of “refugee” (i.e. the Refugee Act 2011), is it precluded from amending that legislation shortly afterwards in such a manner as would narrow the scope of protection offered to the beneficiaries of such legislation albeit that, even following such amendment, the new definition of “refugee” is not more restrictive than that contained in the Directive? 6.a) If a Member State is not precluded from amending its legislation in the manner described in question 5, is it nevertheless precluded from revoking the status of refugee in respect of a person to whom that status has already been granted and to whom it has also granted a one year residence permit? b) if the answer to question 6 is in the affirmative, is this restriction (i) limited to the duration of the one year resident permit granted? (ii) capable of retrospective application so as to benefit a person granted refugee status prior to the enactment of the amending legislation? (iii) affected by the fact that the person concerned has, in the meantime, taken up employment under the terms of the resident permit granted? 7. Since the relevant Mulysan law makes no explicit reference to “subsidiary forms of protection”, should the more generous definition of refugee (contained in the Refugee Act 2011 prior to amendment) be considered to encompass Mulysa‟s implementation of the definition of “persons eligible for subsidiary protection” contained in Articles 2(e) and (f) of Directive 2004/83; and, if so, was Mulysa‟s decision to grant refugee status to the applicants be treated as a recognition by the competent authorities of the Member State that such persons qualify for subsidiary protection and should not be returned to their home country if they would face a real risk of suffering serious harm as defined in Article 15 of Directive 2004/83? 8. If any/all of questions 5-7 are answered in the affirmative, does such wrongful implementation of Directive 2004/83 manifestly and gravely exceed the limits of the Member State‟s lawful discretion, such that it constitutes a “sufficiently serious breach” which would permit the applicants to succeed in a claim for damages against the State of Mulysa?

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CEEMC 2011 Winners’ Report University of Zagreb Team: Nika Bačić; Dora Horvat; Ana Lah and Kristina Mandić It all started in February 2010, when the four of us girls (Nika Bačić, Dora Horvat, Ana Lah and Kristina Mandić) decided to form a team for the Central and East European Moot Competition. After weeks of writing and re-writing our written pleadings, and then weeks of practicing speeches, we have finally arrived to the beautiful and peaceful Vilnius where the competition took place. At that moment, this dream has started. Waking up, getting dressed, going to the courtrooms, pleading, arguing, eating sleeping…everything went by so fast, and the next thing we know- we were standing in a wonderful, theatre-like hall of the Vilnius University, pleading in the finals in front of dozens of people. Within the blink of an eye, the name of our University is being called, everyone is clapping and we realize that the months of hard work have really paid off- we have won! That evening, a closing ceremony was organised. After all the excitement, we forgot that there is another important event on the schedule- speaker awards. Not even in our craziest dreams, could we have imagined what was about to happen- two of us have won the speaker awardsKristina Mandic as a noted speaker and Dora Horvat as the best speaker of the competition! A few days later, we got an e-mail about our prizes. Oh, yes, the prizes! How did we forget about that? As a winning team we got the opportunity to spend one week at the Cambridge University, and Dora, as the best speaker, got a stage at the European Court of Justice.

CAMBRIDGE In the beginning of October 2011, after the summer holidays, the University of Zagreb team was reunited, but this time in a completely different manner. This time we didn't meet in a classroom to discuss the arguments for the moot case, neither did we meet for a coffee in a café across the Law Faculty in Zagreb. This time, we were standing in the courtyard of Magdalene College of the Cambridge University. It was the Freshers' week (the first week of lectures for the new coming students), so we were no different than most of the students there-lost, confused, scared, excited. It is impossible to describe the atmosphere in the city where practically 90% of the population are students, where there are more bicycles per capita than anywhere in the world, where the entire life is adapted to the needs of students. Our first stop was the Law Faculty, where we were warmly welcomed by Ms Ann Smith. We got all the necessary information, maps, class schedules, food coupons and we were ready to

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start exploring the student life in the world's best university in 2011. We could probably write a novel about all the amazing things we have seen and experienced- from the most amazing law library in the world- Squire Law Library- to the beautiful college buildings where you feel like you jumped into a Harry Potter movie. We have had an opportunity to have dinner with Professor Cornish and Professor O'Keefe, as also to participate in The CEEMC 2011 winners of Zagreb University the inaugural dinner for the new stuwith Baroness Hale dents at the Magdalene College. Words cannot describe the atmosphere at the dinner under the candle lights, at the most beautiful dining hall you could imagine. We have participated in the classes at the Law Faculty, listened to the amazing lectures from the people who we knew as the authors of the most popular EU Law books. Somewhere in the middle of the week, we got back into our "smart clothes" and took a train to London, to the Supreme Court, where we were welcomed by the fascinating Lady Hale. She is the first and currently only female Justice of the Supreme Court, who was kind enough to share with us some exciting stories from her life and career. After that, we went to a hearing at the Supreme Court, and visited their gorgeous library with famous quotes engraved throughout the walls and the shelves. After an afternoon of sightseeing, we sat back on the train and returned to Cambridge. It is unbelievable how fast that week had passed, just as we had started getting used to the student life there. We can say that we have experienced everything that a student in Cambridge needs to experience- life in the college, lectures, libraries, sitting on the grass and reading, eating in those wonderful dining halls, even the night life. That is why it was so difficult to say goodbye to the city after a week. While for some of us the CEEMC Journey has ended, Dora still had a very exciting experience coming up- the stage at the European Court of Justice, at the Cabinet of AG Eleanor Sharpston.

LUXEMBOURG 2012 had an amazing beginning for me- I have started my stage at the European Court of Justice. It is hard to describe how nervous I was, standing in front of the big building of the Court,

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holding nothing but a piece of paper confirming that I am a stagiaire at the cabinet of AG Sharpston. At the entrance, I was provided with my own ID-badge that certifies that I am an intern at the Court and that opens most of the doors for me. As I was walking down the big hallway, everybody was saying “Bonjour!” to me- now I am one of “them”, the worker at the European Court of Justice. When I got out of the elevator on the seventh floor, I was warmly welcomed by Ms Rose Flammant, the assistant of AG Sharpston. She provided me with the keys to my office and introduced me to the référendaires. One of the référendaires, Ms Isabelle Van Damme explained to me how everything works at the Court and gave me the cases I am going to work on for the next two weeks. Wow, I have my own badge, my own office, I have huge case files standing on my desk and the best of all- I have my new e-mail address: dora.horvat@curia.europa.eu I have to admit, the first thing that I did when I was left alone in the office was what any person in my position would do- I started writing dozens of e-mails from my new e-mail address: to my friends, my parents, my teachers at the University, even to myself, so that I would have this memory forever. But then it was time to get serious, because there was a lot of work to be done. My job was to comment on the draft opinions and do the additional research if necessary. But that does not mean that I only had to do that. Whenever I found an interesting hearing I would like to participate in, I was encouraged to do so. I was also free to use the library of the Court, which is absolutely amazing. Also, I have met a lot of other stagiaires, who have made me feel more than welcome. They have introduced me to their routines, and before I realised it, I was fully integrated in their circle. We have lunch every day at 12:30h, coffee at 16:00h. Wednesdays we go for an afterwork drink, and Friday nights are reserved for parties. Even though my stay at the Court was quite short, I must say I was able to fully experience the life as a stagiaire. Thanks to the wonderful atmosphere at the Cabinet, I was participating in everything they were doing- the Cabinet meetings, celebrations, guided tours for the students, hearings. Also, I was offered help whenever needed and all in all- no words could explain how wonderful that Cabinet was; how helpful they were in every aspect of my stay there and how welcome they made me feel.

In the end, all of the members of the University of Zagreb team would like to give one big ―Thank you‖ to everyone who made this possible; Ms Denise Ashmore, Steve Terrett and the entire CEEMC organising team; Professor William Cornish and Ms Ann Smith; AG Eleanor Sharpston and her wonderful Cabinet

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Call for Papers and Subscribers’ Contributions Letters to the Editor In this feature we give you, the reader, an opportunity to comment and give feedback on articles you have read in the previous edition of Obiter Dicta. Do you disagree with any of the authors? Maybe you have another opinion on one of the topics which has been raised in this issue? Please write to us and let us know! We would also appreciate any ideas you have for the publication as a whole. We look forward to hearing from you! Please send your letters to blcobiterdicta@gmail.com.

CALL FOR PAPERS FOR BLC ANNIVERSARY CONFERENCE- Two decades of change in UK and Central and Eastern Europe. A unique opportunity exists for one of our alumni/graduates/ students to present a paper at the BLC’s 20th Anniversary Conference, to be held on 21st September 2012.. The conference, which is to be chaired by Sir Robert Carnwath and will be attended inter alia by Prof. William Cornish, Richard Nolan and Prof. Catherine Barnard of the University of Cambridge and other distinguished experts from acrros the region who have supported the BLC during the last 20 years. We are pleased to announce that one of the papers presented will be chosen by open competition. April 2nd 2012 is the deadline for the submission of proposed papers, with proposals of no more than 500 words to be sent to blcanniversary@gmail.com, accompanying your paper with the following information:-

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your full name, nationality e-mail address, current residence (country/ city), connection with the BLC, brief note of current activity/ employment.

Your e-mail should be entitled - Call for Papers BLC 20th anniversary conference.

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Juris Angliae Scientia Ltd is a charitable foundation set up in 1992 with the objects of promoting education links between the United Kingdom and Poland. JAS has functioned as the engine for promoting and supporting the activities of the BLC, initially in Poland and more recently in other parts of Central and Eastern Europe. The current managing committee includes Prof. W.R. Cornish and Richard Nolan (both of the Law Faculty, University of Cambridge), Joss Saunders (legal advisor and company secretary to Oxfam GB), and Sir Robert Cornwath, Justice of the Supreme Court. Keep checking our website for further updates of the 2012 anniversary celebrations!

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