The Institute was deeply saddened by the untimely death in September of its President and Chairman, Lord Bingham of Cornhill KC. He made an invaluable contribution to the work of the Institute over many years, as he was very fully engaged in its activities, and provided wise advice and tireless support. I am sure that you join with all of us in sending our deepest sympathy to Lady Bingham and the rest of his family for their great loss. The passing of this exceptional man will be mourned by innumerable members of the legal community, both in Britain and in the wider world. He was the pre-eminent judge of recent generations and a man of exceptional human and professional qualities. He will be remembered for his outstanding career, his brilliant mind and his impeccable judgment, as well as for his vast reserves of energy, his humility and his warmth towards others. We will miss him greatly.

Despite this sad news, we have proceeded with the creation of the Bingham Centre for the Rule of Law in his honour (and for which he was very supportive). The Centre strives to continue the mission set out by him by focusing on: understanding and developing the rule of law; considering the challenges which it faces; providing an intellectual framework within which it can operate optimally and practically; and, creating the legal and policy tools to support it. Its Director, Professor Jeffrey Jowell QC is now in post and, as we have raised over £1.5m towards our initial target of £2.25m, I am confident that the Centre will achieve its aims.

We have been very busy in other matters, as seen in some of the items in this Newsletter. We have begun new research projects, had interesting and engaging events on contemporary subjects, and have new books about to be published. A few examples will show our breadth of activity: our recent research has included advising on new arbitration rules in Armenia with the World Bank and examining different approaches by EU states to European Commission proposals on private international law; our events have included fascinating seminars discussing recent cases and legislation affecting competition law and also the future of collective redress methods across different States, as well as the annual FA Mann Lecture given by Lord Pannick on the right to freedom of religion; and we have just published a book on a major treaty in public international law. So there is much activity occurring to keep us active over the coming winter months, though we always welcome new proposals, especially funded ones!

I send warmest wishes from all at the Institute for a peaceful, successful and happy 2011.

Professor Robert McCorquodale
Institute Director

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At the end of September, administrative and development coordinator Orsolya Deak left the Institute to take up a post at Slaughter & May. Orsi had been with the Institute since June 2007, when she started as an intern.

The Institute was saddened to learn of the death of international lawyer, teacher and Israeli diplomat Shabtai Rosenne (Rowson). Rosenne was one of the most eminent international lawyers of the last 50 years and his passing is a sad loss to the international legal community. Up until his death he had been taking part in the commission of inquiry into the Gaza flotilla raid.

Click here to read the obituary written by Institute advisory council member Malcolm Shaw.

The Institute welcomes new Board of Trustees members Clare Algar, Gary Born, Sir Francis Jacobs KCMG, QC, Keith Ruddock and Prof Malcolm Shaw.

The members who have stepped down this year are Prof Christine Chinkin, Prof Vaughan Lowe QC, John Merrett, and Prof Philippe Sands QC. We thank profusely those former Trustees who have served so helpfully and expertly.

The Institute celebrated the launch of its Bingham Centre for the Rule of Law on Monday, 6 December at the Royal Courts of Justice. The Bingham Centre for Rule of Law is devoted to the study and promotion of the rule of law through comparative research, discussion and training. It aims to be the foremost institution of its kind in the world specifically devoted to this vitally important issue worldwide.

The Centre is named after Tom Bingham (The Rt Hon Lord Bingham of Cornhill KG), a man of outstanding professional and human qualities and the first judge to hold all three of the most senior posts in the British judiciary - Lord Chief Justice, Master of the Rolls and Senior Law Lord. He was President and Chair of the British Institute of International and Comparative Law, in which the Bingham Centre is placed.

In attendance was an audience of over 200 contributors and supporters of the initiative. After a welcome by the Rt. Hon The Lord Judge, Lord Chief Justice of England and Wales, the event began with a set of speeches from an esteemed panel that included Lady Bingham of Cornhill, Rt Hon Kenneth Clarke QC, MP, Lord Chancellor and Secretary of State for Justice, Roger Errera, Former Senior Member of the Conseil d’Etat, Paris and Visiting Professor at Central European University in Budapest, Professor Jeffrey Jowell QC, the inaugural Director of the Bingham Centre, and Sir Christopher Bellamy QC, Chair of the Bingham Centre Appeal Board.

The Rt Hon Lord Phillips of Worth Matravers, President of the Supreme Court of the United Kingdom opened the speeches. Lord Phillips honoured Lord Bingham by reminding the audience how his work will illuminate the law for generations to come and traced his career from Lord Chief Justice, to Master of the Rolls and Senior Law Lord at the House of Lords. In particular, he highlighted Lord Bingham’s support for making the European Convention on Human Rights part of UK law and the importance of the preserving basic human rights from infringement by other individuals or the state. Lord Bingham felt it was vital that individuals be able to enforce their human rights on UK soil, rather than having such fundamental decisions made only at the international level. Lord Phillips concluded by quoting language from some of Lord Bingham’s more famous judicial opinions, for example, that on the Bell Marsh detainees, which highlighted the importance and meaning of the rule of law.

Lord Phillips was followed by Lady Bingham, who discussed Lord Bingham and his great personal and professional commitment to the value of the Magna Carta, specifically Chapters 39 (the principle that no penalty shall be exacted upon anyone except according to law of land) and 40 (that justice may not be slowed, delayed or denied). For Lord Bingham, those two chapters ‘have the power to make the blood race’. In other words, if enforced universally, they could change the face of the world. Lady Bingham remarked that it is because of that belief that everyone had gathered at the Royal Courts of Justice in honour of Lord Bingham.

Kenneth Clarke highlighted the importance of the rule of law at home and abroad, especially today when nations are increasingly interdependent and globalization is on the rise. He commented that now more than ever, the rule of law is needed to restore the balance between civil liberties and state security, which may have become skewed in recent years. Mr Clarke pointed out that the current government is therefore striving to uphold the rule of law and has declared civil liberties a priority. In connection with that, he asserted that the Coalition Government is supportive of the European Convention on Human Rights and is planning to review the effect of the UK Human Rights Act, with a view toward its possible revision in order to ensure its effective implemented in the UK. He closed his speech with the hope that the Bingham Centre for the Rule of Law might make a valuable contribution to ensuring that the rule of law is protected from those who downplay its application and importance.

Mr Clarke was followed by Roger Errera, who marked the occasion with a sadness at the passing of Lord Bingham, but also stated his personal hope that the Centre for the Rule of Law will carry on his great work by serving as a centre for the high-level exchange of ideas between different legal cultures. Mr Errera underlined the interesting contrast between the new trend toward constitutionalism and the rise of the international protection of human rights, and the unusual amount of fear and temptation for unfettered discretion and abuse of power, which has led, in some countries to extraordinary rendition and the acceptance of torture. The Centre will be uniquely placed to discuss these issues in depth according to the various qualities of the rule of law set forth by Lord Bingham in his recent book, The Rule of Law.

Jeffrey Jowell, the Centre’s inaugural director, next spoke about the history of the concept of the rule of law, tracing it from Dicey’s definition in 1885 to the 2005 Constitutional Reform Act’s formal endorsement of the rule of law. Professor Jowell presented an overview of the planned activities for the Centre which broadly include the highest study of the rule of law, education and training and collaboration with other institutions and individuals in the UK and abroad. He drew attention to a few specific issues that might be included in the Centre’s programme of research, namely the cross-border regulation of financial institutions and the independence of the legal profession. With regard to the former, one of the Centre’s first projects will consist of a collaborative study with the American law Institute examining the apparent lack of certainty regarding cross-border regulation of financial institutions in the United States, the UK and the European Union.

Sir Christopher Bellamy drew the speeches to a close by expressing his and the Institute’s gratitude to all those who contributed to the Centre and supported its inception. News of the Centre has received a warm reception in the UK and abroad. The initial target for the Centre is £2.25 million, which will provide funding for its first five years. As of the launch, the Centre has reached a firm commitment for just over £1.6 million. Sir Christopher noted that while the Centre is well on its way, there is still a steep road ahead and a further need for sponsorship, partnerships and donations to put Centre on firm footing for indefinite future. He concluded by stating that it has been apparent that the Centre strikes a profound chord in those who encounter it, and that it is the task of the Centre to study, analyse articulate and defend the rule of law in all its international and national aspects.

The 15th Investment Treaty Forum on 10 September 2010, entitled ‘Recent Developments in Investment Arbitration Procedure’, provided a fresh look at emerging and perennial issues in investment arbitration procedure, with a diverse range of high-level speakers contributing to an exceptionally engaging debate over the issues. It was the first meeting of the Investment Treaty Forum presided over by Jansen Calamita, the new Director of the ITF.

Recent cases were examined to reveal developments in procedure with regard to provisional measures and tribunal invitations to comment on legal authority. The latter raised concerns relating to the appropriateness of lex novit curia as a rule in international arbitration and noted developments in State treaty practice addressed to the proper balance between the finality of disputes and the need to do justice in individual cases through correct applications of the law.

Recent changes to the ICSID Rules (and proposed changes to the UNCITRAL Rules) to promote transparency provided much room for debate. The Canadian NAFTA experience was discussed as a potential solution to the need to balance between public interest in investment treaty arbitrations and legitimate concerns for the confidentiality of at least certain aspects of such disputes. Offered as an example of this balance was the recent decision in Merrill & Ring v Canada, in which the proceedings were publicized, but yet measures were taken to ensure the confidentiality of certain information. Other speakers raised the question of whether there is good reason to take confidentiality rather than publicity as the starting point in investment arbitration, resulting in a considerable degree of debate.

As arbitration costs are perceived to be rising, a pragmatic approach to cost reduction was suggested, calling for minor and consistent changes by all participants in investment arbitration system, particularly arbitrators themselves. In addition, the question of pre-award orders for security for costs was addressed, examining why no such orders have yet been made in publicly available cases. Finally, the question of the apportionment of costs was taken up, resulting in a proposal that the rule with respect to costs awards in investment arbitration should take its cue from international commercial arbitration practice and the ‘loser pays’ rule, rather than the traditional practice of public international law in which each side bears its own costs.

Please click here for a more detailed summary of the event.

On 26 October, the Institute hosted a seminar on environmental disputes, focusing on a recent decision by the International Court of Justice (ICJ) regarding the construction and operation of pulp mills on the river Uruguay, on the border of Argentina and Uruguay. According to this decision, Uruguay may continue to operate a pulp mill despite having constructed it without respecting certain procedural obligations contained in an agreement between the two States. The Court however stressed the continuing obligations on both Parties to cooperate with regard to ongoing monitoring and assessment of the operation of the mill.

This seminar, chaired by Jill Barrett, the Institute's new senior research fellow in public international law, discussed the findings of the ICJ, as well as the broader environmental law context and the way environmental disputes are currently being handled by international courts and tribunals. Professor Alan Boyle, who was counsel for Uruguay, and Professor Philippe Sands QC, counsel for Argentina, both presented their personal views on the legal significance of the case.

Professor Boyle put the Pulp Mills case into perspective within the realm of international environmental law, assessing the significance of the Court's comments on the International Law Commission's draft articles on Prevention of Transboundary Harm from Hazardous Activities and the law of international watercourses. While the ICJ recognized that there is a requirement under general international law to undertake an environmental impact assessment where there is a risk that the proposed industrial activity may have a significant adverse impact in a transboundary context, it observed that the rules were not specific as to the scope and content of the assessment. Click here to read Alan Boyle’s comments.

Professor Sands highlighted the importance of procedural rules, referring in particular to Judge Higgins’ observation that where States are unable to agree on substantive issues, these rules become even more important. He addressed the way in which, in this case, the ICJ treated the question of compliance with procedural obligations, and raised questions as to the implications of the Court’s approach for compliance with procedural obligations in other contexts.

While agreeing on the significance of the Court's findings on environmental impact assessment, the speakers debated the importance of the case for the development of international law in the field of environmental protection.

Anna Riddell and Brendan Plant, both former research fellows at the Institute, were also on the panel to highlight the issues relating to the use of evidence by the ICJ. Their book, the outcome of the Institute's study on ‘Evidence Before the International Court of Justice’ which suggests possible reforms, was cited in the Dissenting Opinion of Judges Al-Khasawneh and Simma in the Pulp Mills Judgment.

A lively discussion followed on the relationship between the ICJ and other courts, the extent of forum-shopping, access to justice and the advantages and disadvantages of the ICJ as a forum for environmental disputes, compared with tribunals, WTO panels and other methods of dispute settlement. The future operation of the ICJ, in particular the role of experts and the difficulties associated with the cross-examination of experts was also discussed. A range of views were expressed as to the approach the Court might take in future cases, and the role of other international courts and tribunals on matters of this kind.

On 11 November 2010, the Institute—with the generous support of Eversheds LLP—convened a seminar devoted to the seminally important and complex issue in arbitral practice: Mandatory Laws in International Arbitration. With speakers from differing fields and cultural backgrounds, the discussion provided a diverse range of perspectives on the issues.

In the first presentation, the ‘Perspective of a Chairman’ was given by Dr Marc Blessing (Baer & Karrer, Zurich), who has acted as an arbitrator in some 40 antitrust cases in the last two decades, and who was able to give a comprehensive yet brief account of his suggested tests for use when considering the applicability of mandatory rules. Questions as to a theoretical approach to the application of mandatory rules in arbitration were then raised by Salim Moollan (Essex Court Chambers), who provided an overview and reflection on Emanuel Gaillard’s ‘Aspects Philosophique de l’Arbitrage International’, noting the importance of a consistent theoretical approach to mandatory rules in practice and questioning classic territorial assumptions about lex arbitri. The first panel was concluded by Dr Julian D M Lew QC (20 Essex Street Chambers), examining ‘European Competition Law as Mandatory Law.’ Dr Lew explored the limits to expressly chosen law where there is a mandatory rule that might apply, and the extent to which an arbitral tribunal should investigate its jurisdiction where a potential competition issue arises. Dr Lew also reviewed the questions of the relative competence between courts and arbitral tribunals and the appropriateness of the arbitral tribunal acting sua sponte in a proceeding based upon consent.

Panel Two focused on judicial application of mandatory rules and their effect on the enforcement of arbitral awards. Professor Jeff Waincymer (Monash University) considered the effect of mandatory laws on the judicial review of arbitral decisions. Professor Waincymer concluded that given the range of courts and possible permutations to procedural posture in which mandatory laws issues will arise, judges should take a more nuanced approach to arbitral decisions, so as to maintain the valuable distinction between arbitration and litigation. The English approach to mandatory laws was addressed by Dr Stuart Dutson (Eversheds, London), focusing on the recent decision of the High Court in Accentuate v Asigra, where Tugendhat J held that no matter the agreement of the parties, EU mandatory laws must apply in arbitration. In response to the decision, Dr Dutson suggested that where the arbitral seat is outside of the EU, the choice of law clause should be relevant insofar as it may exclude the subject matter of the mandatory rule, and, where it does, the tribunal (and courts) should honour this choice.

Closing the seminar, Jonas Löttiger (Eversheds, Stockholm) discussed the approach adopted by the Swedish courts in connection with the ongoing litigation in Sedelmayer v Russian Federation. In particular, he referred to the propriety of the Swedish courts’ invocation of the as-yet-not-in-force United Nations Convention on Jurisdictional Immunities of States and Their Property (2004) in the context of enforcement of an arbitral award against Russian property held in Sweden.

On 15 December BIICL formally completed its 18 month study on the legal framework governing the receipt of cross-border assistance within the European Union for the International Federation of Red Cross and Red Crescent Societies and funded in substantial part by the European Commission. The study consisted of three reports examining rules such as the law relating to customs, immigration and food safety, in order to determine the existence of barriers to the effective delivery of assistance in the event of a disaster in one of the EU member states. The first report, published earlier this year, examined these issues at the EU level, looking specifically at European directives and regulations that may deal with disaster assistance at the supranational level.

The second report provides an overview of the legal framework in the United Kingdom, and assesses the adequacy of several technical rules that are necessarily involved in the provision of cross-border assistance, such as law relating to customs, immigration, and food safety. The UK national study was one of six national studies.

The final report, published on 15 December, is a synthesis report comparing the findings of the six national studies and the EU report in order to determine whether and to what extent EU level or national action might be necessary to facilitate the receipt of cross-border disaster assistance. In conjunction with the synthesis report, Justine Stefanelli and Sarah Williams, former senior research fellow, travelled to Brussels to present their preliminary findings at an EU-level workshop. The workshop consisted of an audience representing 16 governments and 21 national Red Cross Societies, as well as representatives from the International Federation of Red Cross and Red Crescent Societies, and the European Commission. Its aim was to discuss the results of the draft synthesis report and recommendations, as well as the six national studies with a view toward drafting a final comprehensive synthesis report later this year.

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).

On 19 October, Professor Robert McCorquodale and Kristin Hausler presented the findings of their seven-month study on ‘Human Rights and Pre-Trial Procedures: Requirements for Police and Prison Authorities’ at the Meeting of Senior Officials of Commonwealth Law Ministries, at the Commonwealth Secretariat. The report, which identifies and clarifies minimum human rights standards applicable to pre-trial detention, including all the relevant international instruments, was well received by the representatives of the Member States. It contains an analysis of statistical data, as well as the practices of police and prison personnel, with a focus on five Commonwealth Member States. The choice of the comparator States was done at the beginning of the study and was based on the fact that the legal systems of these States had been influenced by civil law. As a result, this selection required an additional perspective on the treatment of pre-trial detainees by highlighting the potential differences between the common law and the civil law criminal procedures. The report concludes with a set of recommendations to be possibly implemented by the Member States that do not already implement them within their legal system or practices. For example, the report urges the ratification of the relevant international conventions, such as the First Protocol of the ICCPR and the Optional Protocol to the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment. Recommendations also include certain amendments at the national legislative level. Finally some practical considerations, in particular those that are not financially burdensome, are also presented. The study even considers the usefulness of developing a handbook on the right of pre-trial detainees. Within the next few weeks, the Institute will prepare a condensed version of its report for the Commonwealth Secretariat, generalizing its findings. The study will then be offered to the consideration of Senior Officials at their next meeting, with a view to presenting it to the Law Ministries of all Commonwealth Member States.

The trial in the case of The Prosecutor v Jean-Pierre Bemba Gombo started on Monday, 22 November 2010. Gombo stands accused of allegedly criminally responsible, as a person effectively acting as military commander within the meaning of article 28(a) of the Rome Statute, for two crimes against humanity (murder and rape) and three war crimes (murder, rape and pillaging), allegedly committed in the Central African Republic in the period of 26 October, 2002 to 15 March, 2003.

Read ICC Press release here.

The Republic of Costa Rica instituted proceedings against the Republic of Nicaragua with regard to an alleged ‘incursion into, occupation of and use by Nicaragua’s Army of Costa Rican territory as well as breaches of Nicaragua’s obligations towards Costa Rica’ under a number of international treaties and conventions. This was especially interesting as it appears that part of the incursion was due to an error on Google Maps!

Read the press release here.

Joined Cases C-57/09 and C-101/09, Germany v B, and Germany v D (Nov. 9, 2010)

The Court ruled that, in determining whether to grant refugee status to persons who were members of terrorist organizations, Member States must consider each applicant on a case-by-case basis. It stated that the mere fact that the person concerned was a member of such an organization does not automatically mean that they should be excluded from refugee status.

Read the document here

Regulation (EC) 864/2007 (Rome II), Court of Appeal (Civil Division), on appeal from the High Court of Justice, Queen’s Bench Division, Clinton David Jacobs v Motor Insurers' Bureau, [2010] EWCA Civ 1208

This case relates to the assessment of compensation in a dispute concerning a traffic accident in Spain, the victim being a UK resident and the driver an uninsured German citizen. The victim claimed compensation from the Motor Insurance Bureau (MIB), competent body for compensation under Regulation 13 (2) of the Motor Vehicles Regulations 2003. The crucial issue in this case was, whether the assessment of compensation had to be determined by reference to the law of England (habitual residence of the victim) or the law of Spain (State in which the accident occurred). The High Court of Justice decided that compensation has to be assessed in accordance with Spanish law as the law of the State in which the damage occurred. Priority was given to the Rome II Regulation, even if the High Court agreed that article 13(2)(b) of the Motor Vehicles Regulations 2003 leads, in principle, in all respects to the application of English law. The Court of Appeal did not support this conclusion in its decision of 27 October 2010. According to the Court of Appeal, the directly applicable Article 13 (2) of the Motor Vehicles Regulation 2003, which sets out that the guarantee body ‘shall compensate the injured party...as if...the accident had occurred in Great Britain’ does not constitute a rule of applicable law incompatible with the Rome II Regulation, but refers to national substantive law. It therefore requires the application of English law principles to the assessment of compensation.

The entire decision can be read on the BAILII website.

The previous decision ([2010] EWHC 231 (QB)) was summarized in Newsletter 3 - 2010.

Dallah Real Estate and Tourism Holding Company (Appellant) v The Ministry of Religious Affairs, Government of Pakistan (Respondent) [2010] UKSC 46, on appeal from the Court of Appeal (Civil Division) [2009] EWCA Civ 755

On November 3, 2010, the UK Supreme Court issued its decision in Dallah Real Estate & Tourism Holding Company v The Ministry of Religious Affairs, Pakistan. This case concerned the enforcement in England of an arbitral award against the Government of Pakistan based on an arbitration agreement concluded between Dallah and a State established trust. As the trust ceased to exist and Dallah had originally negotiated and concluded a Memorandum of understanding with the Government, the question was to determine whether the Government of Pakistan was a party to and bound by the arbitration agreement and the subsequent award issued by an ICC arbitral tribunal sitting in Paris. The Supreme Court declined to enforce the award.

The case has raised several issues: the scope of the court's review under section 103 (2)(b) of the Arbitration Act 1996 (Article V(1)(a) New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958), according to which enforcement of an award may be refused ‘if the person against whom it is invoked proves […] that the arbitration agreement was not valid under the law to which the parties subjected it or […] under the law where the award was made’; the doctrine of competence-competence; the application of arbitration agreements to non-signatories; and interesting conflict of laws issues.

The full text of the decision can be consulted here.

Commentary: Towards a multiplicity of estates in French Law? The French ‘entrepreneur individuel à responsabilité limitée’ (EIRL)

A recent French law of 15 June 2010 creating the figure of an ‘entrepreneur individuel à responsabilité limitée’ (ie an entrepreneur with limited liability) will come into force on 1 January 2011 ( Loi n° 2010-658, 15 juin 2010, relative à l'entrepreneur à responsabilité limitée). This structure would allow a professional estate to be distinguished from a personal estate. Moreover, several new estates called ‘patrimoines d’affectation’ owned by one person according to his or her various sectors of activity would possibly be constituted from 1 January 2013 in France.

This new concept allows for a distinction between the professional and personal estate and requires an autonomic accounting. A professional account distinguished from the personal account must be opened in a bank, and every year, the annual accountancy must be filed in the place where the EIRL has been constituted (Register of Mortgage—bureau de la conservation des hypothèques—or tribunal). Creditors from the professional activity will have the right to sue the entrepreneur only on his professional assets while personal creditors will have the right to sue only on the personal assets. The success of this new institution will depend on the efficacy of this separation in practice.

Some safeguards have been inserted in the law. For instance, fraud allows a creditor to sue the entrepreneur on the basis of his personal assets. According (Article L526-15 of the French Commercial Code), if no heir wishes to pursue the EIRL after the death of the entrepreneur, the separation of estates cedes to be effective but creditors will have the possibility to sue the debtor on either the professional assets or the personal ones. At the same time, article L526-16 Commercial Code reserves the legal rights of heirs.

This new concept jeopardizes the théorie de l’unité du patrimoine (unity of estate/property theory). This theory was posed by Aubry and Rau (Droit civil francais, Aubry et Rau, Paris, t. 9, 5e edition, 1917.) and is currently deemed as a principle of reference in French law under the regular focus of legal doctrine. Under French law, a patrimoine (estate) is the accumulation of all assets and debts of a person. One person owns one and only one patrimoine (estate), which is transferred to his heirs after his death, in accordance with the principle of complete transfer of assets and liabilities.

Other recent legal figures have sparked debate on the estate theory such as the French fiducie (Law n°2007-211, 19 February 2007 instituting the fiducie) which produces a ‘patrimoine d’affectation’ i.e. a fiduciary estate distinguishable from the personal estate of the fiduciaire (fiduciary). Article 2011 of the French Civil Code presents the fiducie as a transfer creating a fiduciary estate but does not clearly express that the fiduciary is to be qualified as an owner. (Article 2011 French Civil Code : Article 2011 French Civil Code) However, the fiduciaire (fiduciary) would own two different estates while he normally should own only one under AUBRY and RAU’s theory.

To resolve this incoherency, it has been argued that the fiduciaire (fiduciary) should not be qualified as an owner: his right of ownership is limited, while article 544 of the French Civil Code defines property as an absolute right. Others however argue, that the fiduciaire (fiduciary) is to be considered as a real proprietor.

Nevertheless, article 2025 al. 2 of the French Civil Code seems, as a result, to uphold Aubry and Rau’s theory of the unity of estate in the person of the principal: According to Article 2015 al. 1 of the French Civil Code the patrimoine fiduciaire can in principle only be accessed by creditors having a claim due to its conservation and administration. If the patrimoine fiduciaire is not sufficient to cover these claims, the principal can be held liable on the basis of his personal assets (Article 2025 al. 2 French Civil Code) except where the contract stipulates that the fiduciary will be entirely liable, which is rarely accepted in practice. De facto, the unity of the principal’s estate is preserved. The same is true concerning the possibility to limit liabilities to the fiduciary estate (Article 2025 al. 3 French Civil Code): no creditors will accept the reduction of their right in practice; it will refer to the estate of the principal in its entirety.

The French estate theory therefore is tainted by institutions such as the fiducie and the EIRL, which create many debates between specialists.

Louise Hubert
Intern, Private International Law

The following is based on information kindly provided by Treaty Section, Foreign & Commonwealth Office. All treaties published since 1997 can be found on the treaty pages of FCOWeb here.

Parliamentary scrutiny of treaties

Part 2 of the Constitutional Reform and Governance Act 2010 (on the ratification of treaties) entered into force on 11 November. This replaces the ‘Ponsonby Rule’, which was the constitutional convention which has governed the laying of treaties before Parliament since the 1920s. The Institute’s Jill Barratt was closely involved in the legislation.

UK Treaties Online

The FCO’s new UK Treaties Online service is already being used by some 700 ‘unique users’ a month. Further improvements continue: the electronic text of the Treaty of Accession of the United Kingdom to the EEC (Treaty Series No. 001(1973) Parts 1 and II : Cmnd. 5179) has been made much easier to use, and consolidated into just two parts.

New Treaty Publications (August–October 2010)

Multilateral:

The Convention on the Rights of Persons with Disabilities (New York, 13 December 2006) has published as Treaty Series No.010 (2010): Cm 7905. The Convention entered into force for the UK on 8 July 2010; the Optional Protocol to the Convention has been published as Treaty Series No. 019 (2010): Cm 7903.

The Convention on Mutual Administrative Assistance in Tax Matters (Strasbourg, 24 May 2007) has been published as Treaty Series No.014 (2010): Cm 7924. The Convention entered into force for the UK on 1 May 2008;

Bilateral:

Following their entry into force, four bilateral treaties with Algeria have been published in the Treaty Series, as follows;

European Communities:

The Stepping-stone economic partnership agreement between Cote D’Ivoire of the one part, and the European Community and its Member States, of the other part, (signed at Abidjan 26 November, 2008 and at Brussels, 22 January, 2009) has been published as European Communities No.003 (2010): Cm 7950. The Agreement is not yet in force.

The Interim Agreement with a view to an Economic Partnership Agreement between the European Community and its Member States, of the one part, and the Central Africa Party, of the other part, (signed at Brussels on 15 January, 2009 and at Yaounde on 22 January, 2009) has been published as European Communities No.002 (2010): Cm 7949. The Agreement is not yet in force.

The Stabilisation and Association Agreement between the European Communities and the Member States, of the one part, and the Republic of Serbia, of the other Part (signed at Luxembourg on 29 April, 2008) has been published as European Communities No.001(2010): Cm 7932. The Agreement is not yet in force.

Historic Treaties in the last few months…

1783: 3 September – Definitive Treaty of Peace and Friendship with the United States of America, signed at Paris;

The new official government website for UK legislation is Legislation.gov.uk.

Legislation.gov.uk brings together the legislative content currently held on the Office of Public Sector Information OPSI website and revised legislation from the Statute Law Database to provide a single legislation service that replaces the current services. Legislation.gov.uk carries most (but not all) types of legislation and their accompanying explanatory documents. This website is managed by The National Archives on behalf of the UK government.

• 40% discount on all Institute events including CPD courses


• Online access to papers from past events


• Subscription to the International and Comparative Law Quarterly, in hard copy and/or online access to the entire archive of the journal


• Subscription to the Institute newsletter, via email


• 40% discount on all Institute publications


• Receive discounted rates at The Montague on The Gardens hotel, London WC1

Public International Law in the UK Courts: Recent Developments and Issues

Thursday 13th January 2011
17:30 to 19:00
British Institute of International and Comparative Law,
Charles Clore House, 17 Russell Square, London WC1B 5JP

Litigation of claims related to international matters affecting the United Kingdom has increased significantly in recent years. Public international law issues are being raised in novel and controversial ways as claimants push at the boundaries of the established extent of jurisdiction of the courts in the UK.

This seminar, the second of an annual series on Public International Law in the UK Courts, will address recent developments, identify current trends and discuss further challenges and opportunites for private litigants, the Government and the courts.

The seminar will be followed by a drinks reception.

Impact of Bribery and Corruption on the International Arbitral Process

Tuesday 18th January 2011
18:00 to 20:00
British Institute of International and Comparative Law,
Charles Clore House, 17 Russell Square, London WC1B 5JP

As illustrated by the Court of Appeals' decision in Westacre Investments v Jugoimport-SPDR Holding Co (1998) (Sir Mark Waller dissenting), allegations of corruption and bribery in connection with international arbitration raise difficult issues both for arbitrators and for courts. For arbitrators the issue often arises as to whether there is a duty to assume an inquistorial role and address questions of corruption and bribery sua sponte. For courts the question is often the degree to which deference ought to be paid to the arbital tribunal's consideration of the issue and the degree to which the court must make its own determination of the facts and legal consquences of allegations of corruption and bribery.

This seminar will address these issues, looking particularly at the impact of the Bribery Act (2010) on the treatment of allegations of corruption and bribery in international arbitration in the United Kingdom and examining the practical issues involved in the proof of allegations of corruption in arbitration.

Freedom of Intformation in the WikiLeaks Era

Monday 31st January 2011
17:00 to 19:00
British Institute of International and Comparative Law,
Charles Clore House, 17 Russell Square, London WC1B 5JP

The current debate surrounding WikiLeaks and the wide public release of previously undisclosed and confidential information raises many complex legal issues. This timely seminar will discuss these legal questions, as well as the relevant legislation which needs to be considered in relation to this new online phenomenon. While freedom of the press is central to this debate, the balanace between the public interest in freedom of information and the need for confidentiality, for reasons such as national security, needs to be considered when analysing the legal aspects. As a result, this seminar will cover the wider legal context in which websites such as WikiLeaks operate, without limiting itself to the recent publication of a series of diplomatic cables.

The Institute is pleased to announce the publication of three new books. Please contact Alexa van Sickle to order books or for further information.

Edited by Robert McCorquodale

ISBN 978-1-905221-42-4
Published November 2010
Price: £80 (members £48) $140
Paperback

If the daunting challenges now facing the world are to be overcome, it must be in important part through the medium of rules, internationally agreed, internationally implemented and, if necessary, internationally enforced. That is what the rule of law requires in the international order.
- Lord Bingham (Chapter 1)

The maintenance and promotion of the rule of law is of fundamental importance for the human dignity and well-being of people everywhere, providing the foundations for good governance, an effective economy and a fair society, and affecting the daily lives of people around the world. Its relevance extends across a wide range in the affairs of people and states: in the laws of armed conflict; laws outlawing corruption and governing constitutional affairs; in energy and environmental rights; the respective roles and powers of the various arms of government and agencies at national, regional and international level; the independence of the judiciary; and in human rights. This book explores some key issues concerning the rule of law in the international and comparative context, clarifying key aspects of the rule of law and applying them to real life examples across the world, including:

The analysis is given by some of the leading lawyers in the world—Yves Fortier, Mary Robinson, Jane Stapleton, Keir Starmer and Lord Bingham—as well as the senior researchers of the British Institute of International and Comparative, as it celebrated 50 years of promoting the rule of law in an international and comparative context.

Guido Alpa

ISBN 978-1-905221-46-2
Published November 2010
Paperback
Price: £50 (members £30)

Available for the first time in English, in this latest collection of essays Guido Alpa brings his cosmopolitan approach to current issues in European, private, and commercial law. Covering a broad range of topics, Alpa provides thought-provoking discussion and insight on the themes of legal harmonization and the influence of comparative law on the evolution of legal forms. Accessible and informative, he writes with unique authority on current developments and issues regarding fundamental rights, the World Bank, contract law, family law and changing social norms, and the effect of modern human rights instruments on private law to name just a few-illuminating different solutions to common legal problems. His observations are an essential addition to the existing literature on European private law, and readers will benefit not only from his own deep interest and research in law but the breadth of his expertise in history, classics, literature and politics.

‘Most lawyers will find in this book something of interest as well as plenty of cause for envy for the culture of a man who is not only an exemplar of Italian learning but also a good and loyal friend of our own law. One can thus not only commend this book to one’s colleagues…but also congratulate the British Institute of International and Comparative Law on its initiative to make these essays available to English speakers.’
-Sir Basil Markesinis

Alexander Orakhelashvili and Sarah Williams (eds)

ISBN 978-1-905221-43-1
Published: November 2010
Price: £75 (members £45)

This volume presents the reader with insights as to how law of treaties has worked over past 40 years, since the 1969 Vienna Convention was adopted as the comprehensive treaty to regulate the law of international agreements. Treaties form a basis for a daily conduct of international relations and thus it is vital to see how they are made, amended, interpreted and enforced. This volume capitalizes on 40 years of international experience, described and analytically examined by a group of experts on the subject. Multiple issues the Convention covers include the aspects of conclusion, interpretation, reservations, amendment and modification, validity and other issues relating to treaties are covered.

Contributors: Alan Boyle, Malgosia Fitzmaurice, Mary Footer, Anthony Aust, Richard Gardiner, Jan Klabbers, Paul Eden, Alexander Orakhelashvili, and with a preface by Sir Franklin Berman.

For further information, please contact Alexa van Sickle via email: a.vansickle@biicl.org