The Institute's Annual Conference this year is on 'Energy Security and its Impacts on the International Legal System'. This issue was shown to be of great importance across the globe in the past few weeks, with the oil pipeline pollution off the American coast, the climate change talks in Bonn, and the cases in India arising from the Bhopal explosion, to select but a few. The earth's energy was also seen in the volcanic explosion in Iceland that had such a major effect on travel in much of Europe. I do hope that you are able to attend the conference on June 11.

These examples of energy matters also highlight the significant impact of international and comparative law on national law. National legislation, cases and practice are all affected by international and comparative law. Despite understandable concerns about aspects of sovereignty, the reality is that no State is able to operate in a closed legal system. Our President, Lord Bingham, has recently astutely shown this in his Hamlyn Lectures on 'The Influence of Comparative Law and International law on Domestic Law'. Indeed, he applauds this development as a necessary part of the broader engagement of societies and as a consequence of greater global interactions, as well as the evident growth in the areas now dealt with by international law. One example of the direct impact of international law in British society is seen in the deliberations of the Iraq Inquiry chaired by Sir John Chilcot. As is noted later in this Newsletter, the Chilcot Inquiry, which has been assisted by our Vice-President Dame Rosalyn Higgins QC, is inviting international lawyers to make submissions to it on the United Kingdom's legal basis for military action in Iraq.

Lord Bingham has had a profound impact on the development of the law in the United Kingdom. In particular, he has been very clear on the importance of the rule of law. As he has remarked: '[I]n a world divided by differences of nationality, race, colour, religion and wealth, [the rule of law] is one of the greatest unifying factors, perhaps the greatest, the nearest we are likely to approach to a universal secular religion. It remains an ideal, but an ideal worth striving for, in the interests of good governance and peace, at home and in the world at large' [T Bingham, The Rule of Law p174]. I am therefore delighted to report that, as a result of our fundraising (with many thanks to Diane Denny) we are now advertising for a Director to be appointed to lead the new Bingham Centre for the Rule of Law. This advertisement is found on our web-site here. I am very happy to be in touch with anyone who may be interested in this exciting new position.

We have already made one appointment to this Centre. Justine Stefanelli has been appointed the Maurice Wohl Research Fellow in European Law. We are very grateful for the very generous donation by the Vivmar Foundation and for the unfailing support of Martin Paisner. We do, though, seek further funding to enable the Centre to have a long and productive life and to enable our other initiatives to flourish.

Professor Robert McCorquodale
Institute Director

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European Study on Disaster Assistance published

The Institute's report on the legal framework for disaster assistance within the European Union has been published. The report was commissioned by the International Federation of Red Cross and Red Crescent Societies (IFRC) and is funded in substantial part by the European Commission. The report constitutes another aspect of the overall study on International Disaster Relief Law. The EU report provides an overview of the EU mechanism for disaster assistance, and assesses the adequacy of several technical rules that are necessarily involved in the provision of cross-border assistance, such as the law relating to customs, immigration, and food safety. The report also briefly considers other international obligations that Member States may have regarding cooperation during a natural or technological disaster. Both the European Study and the UK national study form part of a wider research project, which will evaluate the civil protection framework of the EU and six member states.

The EU report is available here.

Information on the IFRC's International Disaster Response Laws, Rules and Principles programme is available here.

For further information concerning the Institute's study on International Disaster Relief Preparedness, please contact Justine Stefanelli (j.stefanelli@biicl.org).

ATLAS (Armed Conflicts, Peacekeeping, Transitional Justice: Law as Solution)

Research Fellow Faria Medjouba organized field missions in Bosnia and Herzegovina and Sierra Leone as part of the ATLAS project. The first mission was set with the objective to analyse and assess the interaction of the actions of the European Union and other international organizations, mainly the UN and NATO as well as the integration of human rights in both the EUPM and EUFOR-Althea missions.

The mission to Sierra Leone was organized with the aim of examining the impact of the Truth and Reconciliation Commission and criminal prosecution via the Special Court for Sierra Leone. Reports on this field missions are currently being drafted by the experts. The missions included interviews with representatives of national institutions and local NGOs.

A mission similar to the one in Sierra Leone is scheduled for mid-June in Cambodia.

Human Rights and Pre-Trial Procedures

In March 2010, the Institute began a study regarding human rights and pre-trial procedures for the Commonwealth Secretariat, which seeks to engage further with justice sector agencies in order to strengthen criminal justice systems through coordinated reform programmes. The objective of this short study is to identify the human rights standards that should be applied throughout the Commonwealth as the starting point for the reforms.

The first part of the study sets out the international legal framework applicable to pre-trial detainees. The aim of this section of the research is to identify and clarify the minimum human rights standards in relation to pre-trial procedures. The second part of the study focuses on the practices of five Member States of the Commonwealth: Cameroon, Mozambique, Mauritius, Rwanda and the Seychelles, being states that primarily operate a civil law system (in contrast to the rest of the Commonwealth Member States). The third part looks at some specific issues in relation to the five States, namely the role played by the civil law background present in these jurisdictions and the potential influence of customary law. Finally, specific issues of international concern, such as the treatment of terror suspects may also be briefly mentioned. It is expected that the fourth and final section of the report will provide some suggestions of good practices.

In order to conduct a thorough analysis of each of the selected jurisdictions, the Institute developed a tailored questionnaire which has been sent to the Justice Ministries of the selected comparator States. In the questionnaire, the Ministries are asked to provide a detailed account of the legislative, administrative and judicial measures regarding pre-trial detention in their State and to also provide a detailed account of pre-trial detention by their police forces and in their prison facilities. The questions also cover other issues, such as the number of pre-trial detainees being held on a yearly basis and the human rights training given to police and prison officers.

This study is expected to be completed at the end of September and project findings will be presented at the meeting of the Senior Law Ministries, which will take place in October at the Commonwealth Secretariat in London.

Director of the Bingham Centre for the Rule of Law

The Institute is advertising the position of Director of the Bingham Centre for the Rule of Law. The Centre was established in the name of Lord Bingham of Cornhill KG, one of the leading world experts on this issue and President of the Institute. The Centre will enhance the commitment to the rule of law at national, regional and international levels, as well as its application and understanding, including the challenges which it faces.

A detailed job description can be found here.

Maurice Wohl Research Fellow in European Law

Justine Stefanelli was appointed the Maurice Wohl Research Fellow in European Law on 1 May. Justine will be responsible for organizing the Institute's European Law programme of research and events.

Justine has been contributing to the work at the Institute for over four years and has worked on a variety of projects in European and private international law. She is currently working on the ATLAS project, concerning international human rights and humanitarian law under the framework of the EU, and a multi-level project looking at the legal framework for cross-border disaster assistance in the EU and the UK.

Justine received her LL.B at the University of Pittsburgh in the United States, and her LL.M in European Law at Queen Mary, University of London. She is a qualified member of the Pennsylvania bar.

London House, Goodenough College, Mecklenburgh Square, Bloomsbury, London WC1N 2AB

Friday 11 June 2010, 09:30 to 17:30

Former University Library (Oude UB), Rapenburg 70, Leiden

Saturday 26 June 2010, 09:15 to 17:00

International Chamber of Commerce, 38 cours Albert 1er 75008 Paris, France

Friday 2 July 2010, 14:00 to 18:00

British Institute of International and Comparative Law, Charles Clore House, 17 Russell Square, London WC1B 5JP

Tuesday 6 July 2010, 17:30 to 19:00

The Law Society, 113 Chancery Lane, London WC2A 1PL

Friday 10 September 2010, 09:00 to 16:00

The Law Society, 113 Chancery Lane, London WC2A 1PL

Friday 15 October 2010, 09:00 to 18:00

The Honourable Society of Lincoln's Inn, Lincoln's Inn, London, WC2A 3TL

Monday 8 November 2010, 17:00 to 18:00

Those following the work of the Iraq Inquiry will be interested to see the invitation to international lawyers recently placed on the Inquiry's website at www.iraginquiry.org.uk. All comments should be submitted to them by 14 July.

International Court of Justice Pulp Mills judgment references Institute Study

The publication resulting from a longstanding BIICL research project, 'Evidence before the International Court of Justice' (A Riddell and B Plant, BIICL, 2009) has recently found support from, and apparently influenced, the International Court of Justice itself. In the Judgment in the Pulp Mills on the River Uruguay case the Court appears to follow a recommendation made in the book concerning expert evidence, and several individual Judges draw direct support from the conclusions of study in their Opinions, quoting from the book, as well as citing argument and using research in it to shape their opinions.

In 'Evidence before the International Court of Justice', the authors Riddell and Plant, both former BIICL researchers, argue that the Court's current approach to evidence is particularly unsuited to dealing with complex matters of scientific or technical evidence. Judges Simma and Al-Khasawneh in a Dissenting Opinion referred directly to the books' views and agreed with the criticism expressed in the book of the Court's tendency to try to resolve new scientific challenges by recourse to traditional legal techniques. They considered that the Court has much to learn from other tribunals in this respect, quoting the authors' opinion on the suitability of the approach adopted by the Annex VII Arbitral Tribunal in the Guyana v Suriname arbitration. Judge Yusuf, in his Declaration, similarly expresses his concern at the Court's unfortunate reluctance to make use of the fact-finding powers available to it.

All three Judges criticized the Court's failure to engage properly with expert evidence by appointing its own experts or enabling party-appointed experts to be subjected to cross examination-a failing which is emphasized in 'Evidence before the International Court of Justice'. Instead they Court allowed scientific expertise to be supplied by experts acting as counsel on behalf of the parties, which is deemed a regrettable practice in the book. However, the Court appears to agree in its Judgment that this is not an acceptable practice, and Judge Greenwood in his Separate Opinion applauds the indication by the Court that such practice will not be repeated in future cases.

Judges Vinuesa, Cancade and Keith also discuss the Court's approach to fact-finding, which demonstrates a new-found level of attention to such matters in the ICJ, which 'Evidence before the International Court of Justice' certainly hoped to encourage. Previous mention of such matters in Judgments and even by individual Judges has rarely been as marked as in the present case, a trend which the authors hope will continue.

For more information on how this case supports the BIICL study, see A Riddell 'Scientific Evidence in the International Court of Justice-Problems and Possibilities' Finnish Yearbook of International Law (forthcoming 2010).

Seven Chamber Judgments against Russia Concerning Chechnya and Dagestan

The European Court of Human Rights (ECtHR) issued judgments in April on allegations of unlawful disappearances and deaths in Chechnya and Dagestan. Seven applicants separately alleged that Russian agents operating in Chechnya and Dagestan had violated articles 2 (right to life), 3 (prohibition of inhuman or degrading treatment), 5 (right to liberty and security), and 13 (right to an effective remedy) of the European Convention on Human Rights. The applicants stated that close relatives had been detained by Russian agents during a security operation and then simply disappeared. They also claimed that the authorities responsible had not carried out effective investigations into the disappearances and deaths of their relatives. In the majority of the cases, the ECtHR found that Russia was in violation of articles 2, 3, 5, and 13 of the Convention.

Read the press release here.

Art 5 (1) (b) Regulation (EC) 44/2001(Brussels I)-ECJ, Case C-19-09 (Wood Floor Solutions)

On March 11, the ECJ decided the case C-19/09 (Wood Floor Solutions), again a case concerning the interpretation of article 5 (1) of Regulation (EC) No 44/ 2001 (special jurisdiction in contractual cases).

A company established in Austria sued a company established in Luxembourg, seeking damages and compensation for termination of a commercial agency contract before an Austrian court. The claimant argued that jurisdiction be established on the basis of article 5(1)(b) of Regulation No 44/2001 and claimed to have carried on business exclusively from its headquarters in Austria. The defendant alleged that more than three-quarters of the claimant's turnover was generated outside Austria, and that art 5(1) did not expressly provide for the determination of a place of performance of the obligation in question in such case, wherefore article 5(1) would be inapplicable and article 2 would apply.

The ECJ answered two questions of the Austrian court in relation to international jurisdiction: whether the second indent of article 5 (1) (b) applies in case of services provided in several Member States; and on the basis of what criteria the place of performance of the characteristic obligation of the contract must be established.

In line with its judgment in Color Drack./.Lexx (C-386/05) the ECJ interprets the second indent of article 5(1)(b) as applicable to a case where services are provided in several Member States. The provision must, in such cases, be interpreted as meaning that the court in whose jurisdiction the place of the main provision of services is situated has jurisdiction to hear and determine all claims arising from the contract. In cases of commercial agency contracts, that place is 'the place of the main provision of services by the agent', as it appears from the provisions of the contract or, in the absence of such provisions, the actual performance of that contract or, where it cannot be established on that basis, the place where the agent is domiciled. Read more here

Art 15 (1) (c) and (3) Regulation (EC) 44/2001(Brussels I)-ECJ, Joint Cases C-585/08 (Pammer) and C-144/09 (Hotel Alpenhof)

On May 18, Advocate General Trstenjak delivered her opinion in the joint cases C-585/08 (Pammer) and C-144/09 (Hotel Alpenhof). These cases concern the interpretation of article 15 (1) (c) and (3) of Regulation 44/2001 (jurisdiction over consumer contracts).

Case C-585/08 concerned a consumer domiciled in Austria who booked a tourist trip on board of a cargo vessel of a German shipping company via a company with its headquarters in Germany, The latter arranged those trips through a website accessible also from Austria. In Case 144/09 the claimant, Hotel Alpenhof, with its headquarters in Austria brought a claim for payment in Austria against a consumer domiciled in Germany, who had booked a hotel trip via the internet and who contested the jurisdiction of the Austrian courts.

The key question referred to preliminary ruling concerned the interpretation of the wording in article 15 (1) (c) according to which jurisdiction at the domicile of the consumer can be established if the business involved in the consumer contract 'directs' activities to the Member State of domicile of the consumer. The wording 'directing activities' causes interpretative difficulties also in the context of article 6 (1) (b) of the Rome I Regulation, especially when, like here, businesses use the internet for their activities. This is the first time that the ECJ has to comment on the question whether the possibility to access a website of a business from the Member State of domicile of the consumer is enough to conclude that the business "directs" its activities to the consumer's home state or if there are additional elements that have to be examined. Read more here

Regulation (EC) 864/2007 (Rome II)-England and Wales High Court, Clinton David Jacobs v Motor Insurers' Bureau 2010 EWHC 231 (QB)

This case concerns a motor compensation dispute between a UK resident seeking for compensation for physical injury sustained in Spain (caused by a German driver) and the Motor Insurers' Bureau (MIB), being the responsible body for UK residents who are injured by uninsured drivers in other EU States and which insures that victims are adequately compensated. At issue was the question of the applicable law to the assessment of the compensation (Spanish law, English law or both) and notably the legal basis for such determination: either the Rome II Regulation or regulation 13 (2) of the Motor Vehicles (Compulsory Insurance) (Information Centre and Compensation Body) Regulations 2003 (MVR). The latter implemented the EC motor insurance directives (see especially directives 84/5/ECC and 2000/26/EC, now superseded by directive 2009/103/EC) and apply where 'a party residing in the UK has been injured during an accident with a vehicle based in an EEA State which occurred in the territory of an EEA State other than the UK' and provided that 'the compensation body shall compensate the injured party in accordance with the provisions of Article 1 of the second motor insurance directive [...] as if the accident had occurred in Great Britain'. The conflict of laws issue was important, as awards of damages under Spanish law tend to be considerably less than those under English law. Under Spanish law a predetermined valuation scale (Baremo Accidentes de Trafico) must be referred to for the calculation of damages for bodily injuries.

The English High Court therefore had to examine the relationship between the Rome II Regulation and regulation 13 (2) MVR. Even if, according to the Court, regulation 13 (2) gives effect to EC directives, it is tailored to situations that 'will typically give rise to a conflict of laws' and 'resolved that conflict'. The Court held that the Rome II Regulation applied, as it constructs a comprehensive code for the resolution of conflict of laws involving non-contractual obligations and guarantees the application of the same law irrespective of the jurisdiction in which the action is brought or the residence of the damaged party. National courts are obliged to interpret national legislation in a manner consistent with this framework. As according to the Court, regulation 13 (2) (b) MVR could not be interpreted consistently with Rome II, the latter was held to prevail.

The Court then applied article 4 (1) Rome II Regulation according to which 'the law applicable to a non-contractual obligation arising out of a tort/delict shall be the law of the State in which the damage occurs.' As the relationship in question was the one between the injured UK resident and the MIB, the Court reflected on which precise non-contractual obligation shall be referred to, ie which 'damage' is claimed to be compensated (the damage suffered because the defendant did not meet its obligations to compensate under the 2003 regulations or the personal injury caused in Spain) and who "caused" it (the MIB or the tortfeasor). The Court concluded that article 4 Rome II refers to the actions of the original tortfeasor, who had caused personal damage, even if it is applied in a dispute between the injured person and the MIB. This damage was sustained in Spain, wherefore Spanish law applied. Furthermore, the High Court refused the application of Art. 4(2) of the Rome II Regulation, as the tortfeasor was (contrary to the MIB) not domiciled in the UK. Neither article 18 Rome II Regulation nor Recital 33 (quoted as 32) have been referred to in detail.

Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya

The Pre-Trial Chamber II of the International Criminal Court in March granted the Prosecutor's request to commence an investigation of crimes against humanity allegedly committed in Kenya. The majority concluded that evidence presented by the Prosecution provided reasonable argument that crimes against humanity had been committed in Kenya. This decision clears the way for the Prosecution to investigate crimes against humanity committed between June 1, 2005 (when Kenya became a state party to the Rome Statute) and November 26, 2009 (when the Prosecutor filed the request to investigate). Read more here.

Two boys, aged 10 and 11, convicted in Old Bailey

The boys were found guilty of the attempted rape of an eight-year-old girl in London. This case highlights the low age of criminal responsibility in England and Wales and resulted in demands for reform of the criminal law relating to young children. Read more here.

This case is of particular interest as the Institute is currently completing a research project examining the rights of the child in criminal justice systems of a number of Muslim States. In so doing, the research considers the different age of criminal responsibility across the world and notes how low the age is in the UK compared to many other States. For the research project see here.

Abbot v Abbot

The US Supreme Court held that, under the Hague Convention on the Civil Aspects of International Child Abduction (Convention), a parent has a right of custody if the parent has a ne exeat right (a right to consent before the child can be removed from a State by the other parent). The Court held that ruling otherwise would render the Convention, which protects the rights of minor children 'meaningless.'

Read more here.

Class Arbitration - Stolt-Nielsen SA v Animal Feeds Int'l Corp.

This case involved actions brought by several commercial businesses arguing that shipping companies had engaged in a price-fixing plot. As the arbitration clause in the charter parties was silent on class arbitration, ie no agreement has been reached on that issue, the parties agreed to submit the question whether their arbitration clause allowed for class arbitration to an arbitration panel with seat in New York, bound by the Class Rules of the American Arbitration Association. The constituted arbitration panel considered that the arbitration clause would allow for class arbitration.

The US Supreme Court decided on 27 April 2010 with a 5:3 vote, that the imposition of class action on parties to an arbitration agreement on grounds of public policy is inconsistent with the Federal Arbitration Act (FAA). In the opinion of the Court, the FAA imposes the rule that arbitration is a matter of consent, not coercion and effect must be given to the parties' contractual rights and expectations. There is no presumption that commercial parties which consent to bilateral arbitration also agree to class arbitration. An implicit authorization of class arbitration cannot solely be inferred from an arbitration agreement, as bilateral arbitration presents certain benefits such as efficiency and privacy which are not met in complex class arbitration. It is not up to arbitrators or courts to impose it because they consider it appropriate for public policy reasons.

Read more here.