commission aims at italian torpedo December 14, 2010
Posted by Bradley in : dispute resolution , 1 comment so farThe Commission has announced a number of proposals to reform civil justice, including this significant one:
Bringing legal certainty to choice of court agreements between companies: In business-to-business relations, companies often agree to settle all disputes in one particular court. However, litigation tactics have led to a situation where the validity of such choice of court agreements is challenged in a court in another EU Member State in order to delay the settlement of the dispute — a practice sometimes referred to as “Italian torpedo”. The Commission proposed today measures to end such abusive tactics by ensuring that the court chosen in the choice of court agreement is always first to determine whether the agreement is valid or not.
the uk, the eu, supremacy and parliamentary sovereignty December 7, 2010
Posted by Bradley in : eu , add a commentThe House of Commons European Scrutiny Committee gets to grips with the circularities in the EU Bill (for example the irony of a Bill purporting to reinforce Parliamentary Sovereignty while requiring referenda for future inroads on sovereignty) in a report published today. There’s a rather forceful conclusion:
the Explanatory Notes are misleading when they state .. that the clause has been included “to address concerns that the doctrine of Parliamentary sovereignty may be eroded by the courts”. Clause 18 is not a sovereignty clause in the manner claimed by the Government, and the whole premise on which it has been included in the Bill is, in our view, exaggerated. We are gravely concerned that for political reasons it has been portrayed by the Government as a sovereignty clause in correspondence and also in the Explanatory Notes, which we discuss below. For these reasons we deeply regret that the Secretary of State’s refused to come and give evidence himself on these matters…The Explanatory Notes present as fact what the evidence we have received tells us is disputed, viewed from any perspective. We are concerned about the precedent this sets for future Explanatory Notes. Minimal research reveals the depth of the division of opinion on whether Parliamentary sovereignty is a common law principle .. as it does whether Parliamentary sovereignty can ever be put on a statutory footing. Yet, astonishingly, none of this is reflected in the Explanatory Notes. In addition, the case law which they quote-Macarthys and Thoburn-fails to include relevant passages of the judgments of Lord Denning and Lord Justice Laws and so gives a distorted impression.
Explanatory Notes are, we assume, drafted with care; they may be used to illustrate the context and mischief of an enactment, even if they are not approved by Parliament, and this would apply in relation to clause 18. All the more reason then that they should be drafted to reflect the status quo, rather than to present a partial opinion.
asset freeze: the italian limbo December 7, 2010
Posted by Bradley in : fundamental rights , add a commentIn something of a contrast to the decisions in the Kadi litigation (see, e.g., this September 2010 decision), the General Court has found that Sofiane Fahas’ right to be heard was respected:
In the present case, a statement of reasons was sent to the applicant by the Council on 3 January 2008, following the adoption of Council Decision 2007/868/EC implementing Article 2(3) of Regulation No 2580/2001and repealing Decision 2007/445/EC (OJ 2007 340, p. 100), the wording of which was identical to that of earlier decisions mentioning his name. The applicant submitted his comments in a letter of 14 March 2008. The Council considered the content of that letter before deciding to retain the applicant’s name in the list at issue in the contested decision. In the letter sent to the applicant on 15 July 2008, which enclosed both the contested decision and a statement of reasons which was identical to those for earlier decisions mentioning his name, the Council stated that, after considering the applicant’s letter of 14 March 2008, it had come to the view that there was no new evidence on the file to justify a change in its position and that the statement of reasons previously notified to the applicant remained valid. It follows that, as regards the right to be heard, the Council gave the applicant the opportunity to submit his comments on the statement of reasons.
In Kadi, the Court treats the EU institutions’ actions as representing merely the formality of seeming to respect the right to be heard. In Fahas, the Court emphasises that the listing is based on the decision of an Italian investigating judge. But a decision made in 2000, long before the 2008 actions and before the 2010 decision of the Court. The basis for the original listing was that an investigating judge in Naples issued a provisional arrest warrant on 9 October 2000 on a charge participating in a conspiracy to establish a cell of the ‘Al Takfir and Al Hijra’ group in Italy. The Court says:
By justifying its action by reference to a decision of an investigating judge of a Member State and informing the applicant, by the letter of 15 July 2008, of the grounds for including him in the list at issue, the Council fulfilled its obligations under Community law.
It seems rather shocking that EU law can to some extent redress the lack of protection of rights in the Security Council (which is problematic in terms of international law) but not the apparent lack of protection of rights in the justice system of an EU Member State. The Court says it cannot do anything about what is happening in Italy:
it should be noted that the General Court does not have the power to review compliance with national criminal procedure. Such review may be carried out only by the Italian authorities or, if the party concerned brings an action, the competent national court. Likewise, in principle, it is not for the Council to decide whether the proceedings opened against the party concerned and resulting in such a decision, as provided for by the law of the relevant Member State, were conducted correctly, or whether the fundamental rights of the party concerned were observed by the national authorities. That power belongs exclusively to the competent national courts or, as the case may be, to the European Court of Human Rights..
britons are well off after lord young’s resignation or not? November 20, 2010
Posted by Bradley in : truth , add a commentLord Young, the author of the recent Common Sense, Common Safety report, resigned as adviser to the UK Government after stating in an interview that:
For the vast majority of people in the country today, they have never had it so good ever since this recession — this so-called recession — started, because anybody, most people with a mortgage who were paying a lot of money each month, suddenly started paying very little each month.
His resignation letter states that he resigns, not because what he said suggested complete incomprehension of the situation ordinary Britons now face, but:
in view of the reaction to the reporting of the interview I gave earlier this week
Not his fault, but the fault of those who heard what he said. And this from an adviser to a Government which claims to be eliminating quangos to increase transparency and accountability. But is it really better for Governments to be careful about what they and their advisers say in front of journalists or for voters to be able to hear their private and uninformed prejudices?
asil international economic law in minnesota November 17, 2010
Posted by Bradley in : events , add a commentTomorrow I’m going to Minnesota for the ASIL International Economic Law Interest Group Conference (I’m giving a paper on consultation in transnational standard-setting). It will be much colder there than it is here in Miami.
asil meets in miami November 11, 2010
Posted by Bradley in : events , add a commentThe American Society of International Law is meeting in Miami this week (the program is here and the UM announcement is here).
developments in clearing November 10, 2010
Posted by Bradley in : financial regulation , add a commentThe CPSS has published a report on Market structure developments in the clearing industry: implications for financial stability (which focuses on “traditional markets” and OTC derivatives markets). Meanwhile, Deutsche Bank critiques the CFTC’s proposals for Requirements for Derivatives Clearing Organizations, Designated Contract Markets, and Swap Execution Facilities Regarding the Mitigation of Conflicts of Interest.
conflict between transparency and rights to protection of personal data November 10, 2010
Posted by Bradley in : transparency , add a commentTransparency is a Good Thing, but the EU’s Court of Justice has held in Volker und Markus Schecke GbR (Cases C-92/09 and C-93/09) that the publication of details of the recipients of agricultural aid, while promoting transparency, conflicts with the recipients’ rights to protection of their personal data. The Court stated that by aiming to increase the transparency of the use of funds in the context of the CAP, the relevant regulations did pursue an objective of general interest recognized by the European Union, however the EU institutions did not satisfy the requirements of proportionality because they did not balance transparency with aid recipients’ rights to protection of their personal data:
Regard being had to the fact that derogations and limitations in relation to the protection of personal data must apply only in so far as is strictly necessary.. and that it is possible to envisage measures which affect less adversely that fundamental right of natural persons and which still contribute effectively to the objectives of the European Union rules in question, it must be held that, by requiring the publication of the names of all natural persons who were beneficiaries of EAGF and EAFRD aid and of the exact amounts received by those persons, the Council and the Commission exceeded the limits which compliance with the principle of proportionality imposes.
Legal persons don’t have the same sort of rights, so publication of information about their receipt of aid is acceptable. Corporations don’t have the same sort of rights to private life that natural persons do. And presumably this would apply even where the legal person had one owner. Another factor to bear in mind when deciding whether or not to incorporate. The Court says legal persons are in any case subject to “a more onerous obligation in respect of the publication of data relating to them.”
Because many disclosures have been made based on an understanding that the regulations providing disclosure were valid, the Court limits the ability of those subject to past disclosure to bring claims:
In view of the large number of publications which have taken place in the Member States on the basis of rules which were regarded as being valid, it must be held that the invalidity of the provisions mentioned in paragraph 92 of the present judgment does not allow any action to be brought to challenge the effects of the publication of the lists of beneficiaries of EAGF and EAFRD aid carried out by the national authorities on the basis of those provisions during the period prior to the date on which the present judgment is delivered.
gory public bodies bill November 4, 2010
Posted by Bradley in : governance , add a commentThe Public Bodies Bill (horrible title) is criticized today by the Select Committee on the Constitution:
The Government has not made out the case as to why the vast range and number of statutory bodies affected by this Bill should be abolished, merged or modified by force only of ministerial order, rather than by ordinary legislative amendment and debate in Parliament. As we have said, and as is axiomatic, the ordinary constitutional position in the United Kingdom is that primary legislation is amended or repealed only by Parliament. Further, it is a fundamental principle of the constitution that parliamentary scrutiny of legislation is allowed to be effective. While we acknowledge that exceptions are permitted — as in the case of fast-track legislation, for example — we have also sought to ensure that such exceptions are used only where the need for them is clearly set out and justified. As we have said, the use of Henry VIII powers, while accepted in certain, limited circumstances, remains a departure from constitutional principle. Departures from constitutional principle should be contemplated only where a full and clear explanation and justification is provided.
And, if that isn’t enough:
The Public Bodies Bill [HL] strikes at the very heart of our constitutional system, being a type of ‘framework’ or ‘enabling’ legislation that drains the lifeblood of legislative amendment and debate across a very broad range of public arrangements. In particular, it hits directly at the role of the House of Lords as a revising chamber.
.. The Public Bodies Bill [HL] is concerned with the design, powers and functions of a vast range of public bodies, the creation of many of which was the product of extensive parliamentary debate and deliberation. We fail to see why such parliamentary debate and deliberation should be denied to proposals now to abolish or to redesign such bodies.
I suppose that if you use the word bodies in a bill title you are just asking for responses invoking blood and guts.
uk independent banking commission public meetings November 4, 2010
Posted by Bradley in : consultation , add a commentThe Independent Commission on Banking announced that it wants to stimulate a wide debate. It is holding a series of public meetings as part of this effort:
Leeds, 4pm on 19th November 2010. The event will be hosted by the Leeds University Business School and be chaired by Clare Spottiswoode.
Edinburgh, 6pm on 22nd November 2010. The event will be hosted by the David Hume Institute, at the Playfair Library. Bill Winters will chair the discussion, and panellists will include representatives from Lloyds Banking Group and Royal Bank of Scotland, as well as Bill Jamieson from the Scotsman and Professor Marcus Miller of Warwick University.
London, 3pm on 2nd December 2010. The event will be hosted by the Confederation of British Industry, chaired by Sir John Vickers and introduced by Richard Lambert. The panel will include John Varley, Chief Executive of Barclays.
Cardiff, in early December 2010. The event will be hosted by the Welsh Assembly Government at the Pierhead building in Cardiff Bay and be chaired by Martin Wolf. The event will focus on the banking needs of small and medium enterprises.
London, 6pm on 13th December 2010. The event will be hosted by Consumer Focus, will look mainly at consumer and retail issues and be chaired by Martin Taylor.
The press notice has contact details to arrange attendance.