Articles
IP and Privacy Rights as Fundamental Rights
March 25, 2021
Izabela Konopacka
The three sources of fundamental rights in the European Union undoubtedly reflect the complicated nature of the Union’s legal system.
Firstly, since the 1960s there has been continual development of a system of fundamental rights protection based on the general principles taken from Member State Constitutions. In turn, we can find them in the Court of Justice of the European Union’s jurisprudence.
Secondly, the Union has adopted its own Fundamental Rights in the form of the Charter of Fundamental Rights, which as a „written Bill of Rights” offers EU citizens a structured set of rights and makes it easier to use them.
Thirdly, there is a system of fundamental rights protection based on the European Convention on Human Rights. This directly affects the Member States and indirectly the EU system as a whole. Following the Lisbon Treaty, the EU’s ability to become a party to the Convention was confirmed. However, as we all know, it has not been accepted yet, therefore, we cannot make a complaint to the Court of Human Rights against the EU because it is not a signatory to the Convention.
- Human Rights/Fundamental Rights involved
When it comes to how our fundamental rights are protected under the Charter and Convention we see the overlap between the two treaties. Furthermore, these have been interpreted and expanded by the Court of Human Rights. The EU, for example, has developed fundamental rights into legislation showing some of the differences between the institutions.
For example, Article 10 of the Convention protects our right to have our own opinions and to express them freely without government interference, Public protest, Freedom of the press and the same rights are mirrored under article 11 of the Charter
Article 8 of the Charter sets out the right to the protection of personal data, but the EU carries this further with, a whole range of specific protection such as the GDPR. The Convention expresses this differently, where the Court on Human Rights has emphasised that Article 8 includes private and family life, home, and correspondence including mail, telephone communications and e-mails in the workplace.
The ‘freedom to conduct a business’ in the charter on human rights, article 16 has been recognised by the CJEU to exercise an economic or commercial activity as we might expect. However, because the Convention also applies to legal entities, their rights are protected too.
Having said this, there is an established concern about the standard of protection given at supranational level as well as the concern if and how the CJEU should allow Member States to apply their own, national, standard of rights protection as different from the EU standard when a situation falls within the scope of EU law remains controversial.
The above point was addressed in Melloni (C-399/11) where the CJEU gave its opinion on the primacy and uniformity of EU law. The case highlighted the difficult nature of rights protection in the EU. However, it also showed that the CJEU admitted that the level of protection for fundamental rights, for example, a right to a fair trial, may be lower than the level of protection guaranteed by the Convention because of the supremacy of EU law.
The above case also shows the differences between the two European Courts, while the Court on Human Rights interprets the Convention’s rights as a minimum standard, the EU mainly interprets EU rights standard as a maximum. Perhaps the jury is still out, and I should ask the rhetorical question. When it comes to human rights in Europe, are there really two rules and two protections?
- Protection of copyrighted work on the Internet and Service Provider Liability
We are all aware of the development of the Internet with new IT technologies contributing to largely uncontrolled exploitation of property protected by IP rights, including materials covered by copyright protection.
Apart from the problem of copyright infringement by individual Internet users or just end-users. There is the issue of the liability of businesses providing services on the Internet, who do not use the materials themselves but make the technical infrastructure available that enables their transmission, storage and use – and so contribute to copyright infringement.
As a response to this, the Electronic Commerce Directive (2000/31/EC) was intended to provide so-called “legal security” by ensuring effective copyright protection on the Internet, but also safeguarding the interests of internet service providers.
Under Polish jurisdiction, the issue of liability for infringement of third party rights including copyright by service providers operating online is governed by the Provision of the Electronic Services Act of 18 July 2002. (Journal of Laws of 2002, No. 144, item 1204, as amended).
Under this statute, businesses providing services by electronic means are not obliged to verify the data they transfer, store or make available in terms of potential violations. At the same time, the act provides, like the Directive, liability exemptions which differ depending on the category of services provided. i.e. ‘mere conduit’ or pure transmission, caching and hosting.
It should be noted that the Polish Provision of Electronic Services Act substantially modifies the rules contained in The Electronic Commerce Directive on excluding liability for copyright infringement by service providers that provide hosting services.
In addition to the above statute, specific rules governing the use of copyrighted works by ISPs are set out in the Copyright and Related Rights Act of 4 February 1994. (Journal of Laws of 1994, No. 24, item 83).
It should be noted that the Polish legal system does not contain regulations typical of the “fair use” doctrine. However, It recognises the concept of ‘permitted use’ and provides that no case of permitted use can infringe the ordinary use of the work or violate the legitimate interests of the author.
The most important cases of permitted use that are set out in the Act include amongst others:
- personal use;
- temporary reproduction, if it is of a transitory or incidental nature, having no independent economic significance but constituting an integral and fundamental part of a technological process the purpose of which is to enable: transmission of a work through the data transmission system between third parties by an intermediary; or the lawful use of a work;
- the use of works listed in the statute for information purposes (reproduction, dissemination);
- the use of works by educational and research institutions for teaching and research purposes;
- the right to quote;
- the exhibition of artistic work by the owner of a copy (exhibiting);
It should also be made clear that Polish copyright law is based on the Latin model, which provides for the legal protection of personal copyright as well as the creator’s economic (property) copyright. Only the latter one is negotiable, which works by way of an assignment of rights. The personal copyright cannot be taken away.
Within this context, there was an interesting case of the alleged infringement of copyrighted work which was a photograph recently commented on in the Polish media concerning a famous blogger, the daughter of our former Prime Minister Donald Tusk -Make Life Easier.
This is a typical blog that could be described as a mixture of fashion and interior design with a healthy lifestyle and healthy eating recommendations.
On the last day of December Kasia (that’s the name of the blogger) informed her readers that the photo of her bedroom window that she had taken and posted on Instagram was subsequently used without her knowledge and permission by ZARA HOME for a campaign. The picture had been modified by the Zara Home and the company displayed its products on the picture.
As the blogger is a professional photographer it was assumed that the photo would fit the characteristics of a creative work, which you cannot use without the author’s consent.
Under Polish law, the mere publication of a photograph on the Internet, for example, on social media, is not the equivalent to giving such consent. However, a contract of assignment or a license agreement may authorize you to do so. Alternatively, you can also use the photo under the right of quotation. And this is where the matter becomes a little complicated. If we read Instagram’s rules carefully, it turns out that sharing, publishing or sending content using their service means granting Instagram a license to the content as well as a transferable license. This means that the service provider (in this case Instagram) can grant further licenses to other entities. So it could have been the case that Zara Home actually obtained a license from Instagram. However, even if this was the case, the copyright would have been infringed anyway.
By using the photo of Kasia Tusk, Zara Home violated more than just property rights.
So far, it is not known whether Zara Home used Kasia Tusk’s photos under a license. However, it does not change the fact that the violation actually took place. Even if not in connection with the infringement of the author’s economic rights, there is still the question of personal rights. Among them is the right to the integrity of the work.
Since the integrity of the content and the form of a work is a personal right and not a property right, it remains inextricably linked to the author. To put it simply, even if Kasia Tusk transferred the author’s economic rights in the photograph to Zara or Instagram granted the store a license, it would still have to obtain the author’s consent to make any changes to the work. However, there is no doubt that replacing elements of the photo with pillows from the store’s collection was a violation of the work’s integrity.
- Jurisprudence (ECHR & CJEU) vs Law (Directives)
I risk stating the obvious, when I say that since the beginning of the Internet era, there have been ongoing discussions regarding the state of regulation concerning the scope of liability for ISPs to overcome legal security issues in terms of IP protection.
On one hand, there has been a legal concept proposed which aimed at imposing maximum responsibility for the publication of materials on the Internet on the ISPs as they have the necessary tools to remove any unlawful materials and can easily identify the perpetrators.
On the other hand, many academics and lawyers have argued that such a concept is not in keeping with the concept of a fair trial and does not ensure a fair balance between the rights of a potential claimant and other protected rights such as privacy, freedom of speech and the freedom to conduct a business.
The two directions have also been reflected in the CJEU’s Jurisprudence and other European courts. Some of them showing a liberal approach, others a very strict one in terms of the ISP liability
The most significant CJEU rulings in this context include the following cases:
– C-484/14 Tobias McFadden vs. Sony Music Entertainment (Secondary Liability for Open Wireless Networks in Germany)
In this case, the CJEU concluded that how the ISP’s liability is framed in the Electronic Commerce Directive gives theservice provider a right to supply access to a communication network as their business and that the public or society has the right to freedom of information.
– C-70/10 Scarlet Extended SA vs Société belge des auteurs, compositeurs et éditeurs SCRL (SABAM),
The main issue for the CJEU was whether under several EU Directives
[on Electronic Commerce (2000/31), the Information Society Directive (2001/29), the Enforcement Directive (2004/48), the Data Protection Directive (95/46), and the Privacy and Electronic Communications Directive (2002/58) ]
and in light of applicable human rights it is correct to issue an injunction against an ISP to force them to introduce a system of filtering all electronic communications for an unlimited period, at its expense to block unlawful use or transfer of copyrighted works.
The Court concluded that Scarlet’s obligation to install a filtering system would in effect make the company carry out a costly general monitoring function for an unspecified period, contrary to the Electronic Commerce Directive.
Furthermore, the Court noted that the fundamental right to property, which includes IP rights “must be balanced against the protection of other fundamental rights.”
In – C-314/12 UPC Telekabel Wien GmbH vs. Constantin Film Verleih GmbH and Wega Filmproduktionsgesellschaft mbH,
An ISP in this case acted as an intermediary by allowing users to access copyrighted material on their website which meant that under Article 8(3) of the Information Society Directive (2001/29/EC) the copyright holder could apply for an injunction.
The court held that a national court may issue an injunction against an ISP in such a situation, but it must be balanced against the public interest in accessing the information.
– C-324/09 L’Oréal SA and others vs eBay International AG and others
L’Oréal, the French cosmetics company, is the proprietor of several national trademarks in the UK, as well as community trademarks within the EU. The company brought infringement actions against eBay, its European subsidiaries, and individual defendants who had sold several counterfeit items resembling brand names associated with L’Oréal.
Among other claims, L’Oréal argued that eBay was liable for the use of its trademarks by displaying them on the website and the advertising-sponsored links provided by Internet search engines, such as Google. In 2009, the UK High Court stayed proceedings pending a preliminary ruling by the CJEU in light of the applicable EU directives.
The Court held that a trademark proprietor is entitled under the Trade Marks Directive (89/104) and the Community Trade Mark Regulation (40/94) to prevent the operator of an online marketplace from advertising its goods without consent which were targeted at consumers in the EU. The Court also ruled that eBay may not be exempt from liability provided under Article 14(1) of the Electronic Commerce Directive 2000/31 when it plays an active role in the sale of goods by optimizing the presentation of offers or promoting them.
Concerning eCommerce platform content filtering systems, the CJEU held that eBay is an intermediary within the meaning of the third sentence of Article 11 of the Enforcement Directive (2004/48) and the injunctions against such intermediary may be issued, however the injunctions must be effective, proportionate and deterrent, without creating restrictions on legitimate trade.
The cases and decisions I have highlighted seem to confirm that there is no uniform position for the CJEU when it comes to the IP infringement on the internet. Therefore, we might conclude that EU law, including the jurisprudence, is in a constant state of development concerning the issues discussed because of the evolution of New Technologies.
The regulators at both EU and national level have found it necessary to amend the existing provisions regarding the internet sphere and upgrade the security rules for digital platforms, services and products.
To this end the Digital Service Package will soon enter into force to complete the EU Digital Single Market.
At this point, I would like to mention that the Polish government has recently also introduced a new bill referred to as the “Freedom Act” which governs the issue of freedom of speech on the Internet.
The aim of the bill, as our Minister of Justice expressed, is to prevent ISPs from blocking content posted by internet users provided it does not violate Polish law. Under the bill the person whose posts or comments have been blocked will be able to appeal to the Council for Freedom of Speech and it will be for the Council to decide whether the measure applied by the online service provider was justified or not.
Many lawyers have taken the position that the bill contradicts the DSA project (on which the European Union, including Poland, is currently working intensively) to a certain extent by, for example, granting protection only to Polish Internet users or not defining “unlawful” content. The EU regulation on digital services, as a supranational law will supersede the Freedom Act, which may be a major complication for Polish Internet entrepreneurs who are at risk’ from having to adapt to the requirements of both acts.
Concluding the question of whether the legitimate interests of all internet users and ISPs may be fairly protected and secured under new EU legislation and Member State national laws remains still open for further discussion.
Mediation in Hong Kong
January 28, 2021
Melissa Pang
I. Legal Framework for Mediation in Hong Kong
1. The Mediation Ordinance (Cap. 620), law of Hong Kong, is the most important legislation relating to mediation in Hong Kong. It applies to any mediation conducted under an agreement to mediate if either of the following circumstances applies, subject to few exceptions:
(a) the mediation is wholly or partly conducted in Hong Kong; or
(b) the agreement provides that Mediation Ordinance, or the law of Hong Kong is to apply to the mediation.
2. Mediation Ordinance provides that mediation as a structured process comprising one or more sessions in which one or more impartial individuals (mediators), without adjudicating a dispute or any aspect of it, assist the parties to the dispute to do any or all of the following:
(a) identify the issues in dispute.
(b) explore and generate options.
(c) communicate with one another; and
(d) reach an agreement regarding the resolution of the whole, or part, of the dispute.
3. For information, some mediation proceedings or proceedings with a similar nature (i.e., conciliation) are regulated by other legislations in Hong Kong, such as the Arbitration Ordinance (Cap. 609) and the equal opportunities laws, etc.
II. Private Mediation
4. Generally speaking, the majority of mediation proceedings conducted in Hong Kong are private mediation. Mediation in Hong Kong is voluntary in nature. Parties are allowed to (i) refer their dispute to mediation for dispute resolution prior or during litigation proceeding; and (ii) to suspend and/or withdraw from the mediation proceeding at any time, subject to the applicable mediation rules as agreed by the parties.
5. Due to the confidential nature of mediation, there is no statistics of settlement agreements in private mediation in Hong Kong.
III. Court-Related Mediation
6. The Judiciary of Hong Kong (“Judiciary”) is very supportive to mediation; and have implemented various pilot schemes and issued various Practice Directions (“PD”) to promote mediation as an effective alternative to litigation. PD 31, which applies to all civil proceedings in the Court of First Instance and the District Court of Hong Kong, is one of the most important PD relating to mediation in Hong Kong. Under PD 31, (i) the parties and their legal representatives have a duty to assist the courts to facilitate the settlement of disputes; and (ii) the courts are allowed to make adverse costs orders against any party on the ground of unreasonable failure to engage in mediation. Notwithstanding the above, mediation is not considered as a compulsory part of the litigation proceeding in Hong Kong because parties are allowed to refuse to engage in mediation, if the parties have good reasons.
7. For information, a summary of the PDs relating to mediation is set out below:
(a) PD 31 Mediation (civil cases)
(b) PD 3.3 Voluntary Mediation in Petitions presented under Sections 168A and 177(1)(f) of the Companies Ordinance, Cap 32 (company related disputes)
(c) PD 6.1 Construction and Arbitration List (construction disputes)
(d) PD 15.10 Family Mediation (family cases)
(e) PD 18.1 The Personal Injuries List (personal injuries cases)
(f) PD 18.2 The Employees’ Compensation List (employment disputes)
(g) PD 20.2 Probate and Administration of Estate Proceedings (other than Applications under the Non-contentious Probate Rules (Cap.10A)) (probate matters)
(h) LTPD CS No.1/2011 Mediation for Compulsory Sale Cases under the Land (Compulsory Sale for Redevelopment) Ordinance (Cap 545) (compulsory sale cases)
(i) LTPD BM No.1/2009 Case Management and Mediation for Building Management Cases (building management cases)
8. In January 2021, the Judiciary launched the Case Settlement Conference Pilot Scheme in the District Court. In gist, this pilot scheme is aimed to introduce and enhance the idea of assisted settlement into the case management process of litigation to further promote the use of alternative dispute resolution in civil litigation and to instill among litigants as well as their legal representatives a culture of exploring settlement in Hong Kong.
9. In sum, Hong Kong has a strong environment for Court-Related Mediation because the Judiciary is very active in promoting and facilitating litigants to resolve their disputes by mediation or other dispute resolution models. However, parties are allowed to refuse to refer their disputes to mediation for dispute resolution in some circumstances.
10. For information, the statistics of the settlement agreement in Court-Related Mediation cases are set out below:
2017 2018 2019
CFI DC CFI DC CFI DC
Partial 1% 1% 1% 3% 2% 1%
Full 47% 42% 50% 45% 49% 41%
Total 48% 43% 51% 48% 51% 42%
CFI: Court of Frist Instance DC: District Court
IV. Solicitor-Mediation-Advocate (Lawyers as Representatives in Mediation)
11. In Hong Kong, a party may be accompanied by one or more persons, including legally qualified persons, to assist and advise them in mediation (subject to applicable rules).
12. Solicitor-mediation-advocates are practising solicitors who have received training in mediation advocacy. Their major duties are to facilitate the mediation proceeding to advance their clients’ interest in mediation. Solicitor-mediation-advocates are required to have sufficient knowledge and skills in assisting their clients in among others, planning and preparing for the mediation, and in particular, arguing for their clients’ positions, needs and interests in a non-adversarial way in the mediation process. The Law Society considered that mediation-advocacy will become one of the most fast-growing areas of practice to solicitors in Hong Kong in future.
V. Solicitor-Mediators (Lawyers as Mediators)
13. The mediation profession in Hong Kong is significantly market driven and self-regulated. Although there are no statutory requirements to lawyers (solicitors and barristers) to act as mediators in Hong Kong, lawyer-mediators, in addition to their professional legal knowledge and experience, are expected to have completed relevant training and assessments in mediation; and thus, have sufficient knowledge, skills and experience on mediation.
14. Solicitor-mediators are practising solicitors who have completed mediation training and mediation assessment recognised by the Law Society of Hong Kong. They are expected to be have sufficient skills in mediation, legal knowledge on court procedures and be experienced in helping the parties to identify and resolve their issues. Moreover, some solicitor-mediators have in addition extensive expertise in particular practice areas, e.g., personal injuries or family disputes. Their technical skills and legal knowledge would be particularly helpful to the parties to resolve their disputes in an efficient, effective and economical manner. Nevertheless, solicitor-mediators are no allowed to give legal advice to any party in relation to the dispute and mediation proceeding (i.e., not to act as a legal advisor).
15. For information, Hong Kong Mediation Accreditation Association Limited (“HKMAAL”) is the leading accreditation body of mediators in Hong Kong. Any person who wants to become an accredited general mediator (for civil and commercial cases) of the HKMAAL shall satisfy the following requirements:
(i). to complete a recognised training in general mediation which must be at least 40 hours long.
(ii). to pass two simulation mediation cases (role plays) conducted by the HKMAAL; and
(iii). to have at least 3 years full-time working experience prior to submitting their application for consideration by the HKMAAL.
16. There is no statutory or uniform code of practice for mediators in Hong Kong. Notwithstanding the above, the majority of mediators in Hong Kong have undertaken to observe the Hong Kong Mediation Code which is published by the Department of Justice of the Government of Hong Kong. Moreover, mediators who are solicitors and barristers are also subject to their respective codes of practice, for example, solicitor-mediators are required to observe the Hong Kong Solicitors’ Guide to Professional Practice.
VI. United Nations Convention on International Settlement Agreements Resulting from Mediation (“Convention”)
17. On 7 August 2019, 46 countries (including China, USA, India, South Korea, etc.) signed the Convention which was aimed (i) to facilitate international trade; and (ii) to promote the use of mediation for the resolution of cross-border commercial disputes. For information, the Convention has 53 signatories as of 7 January 2021.
18. Although Hong Kong is not a signatory to the Convention, China may extend the Convention to Hong Kong in future.
19. On the other hand, it is noted that some major economies in Europe (including UK, France, Germany, Spain, Italy, Netherlands, etc.) are not signatories of the Convention which may have aversive impact on the influence of the Convention.
20. The Convention applies to international commercial settlement agreements resulting from mediation. However, it does not apply to the following:
(i). settlement agreements that are enforceable as a judgment or as an arbitral award; and
(ii). settlement agreements concluded for personal, family or household purposes by one of the parties (a consumer), as well as settlement agreements relating to family, inheritance or employment law.
21. Under the Convention, the courts of a Party to the Convention are expected to handle applications:
(i). to enforce a settlement agreement in accordance with its rules of procedure and under the conditions laid down in the Convention; and
(ii). to allow a mediation party to invoke the settlement agreement in accordance with its rules of procedure and under the conditions laid down in the Convention, in order to prove that the matter was already resolved by the settlement agreement.
VII. Opportunities and Challenges Led by the Convention
22. Generally speaking, the Convention aims to provide greater certainty of; and lower the cost on enforcement of convention settlement agreements among the Parties to the Convention. It will provide more incentives to disputants to refer their cross-border commercial disputes to mediation for dispute resolution; and thus, provide facilitate international trade and provide more business opportunities to mediation and related practitioners.
23. On the other hand, a competent authority (i.e., a court) of a Party to the Convention may refuse to grant relief on the following grounds laid down in the Convention, including:
(i). if a party to the settlement agreement was under incapacity.
(ii). if the settlement agreement is not binding, null and void, inoperative or incapable of being performed under the law to which it is subjected.
(iii). if there was a serious breach by the mediator of standards applicable to the mediator, without which breach that party would not have entered into the settlement agreement; and
(iv). if granting relief would be contrary to the public policy of the contracting state.
24. In light of the above, it is anticipated that mediators may need to face new challenges, which are similar to the challenges to arbitrators under the New York Convention, including the following challenges:
(i). matters relating to the mediation process (i.e., fairness, procedural matters).
(ii). matters relating to the mediators (i.e., impartiality, independence).
(iii). matters relating to the settlement agreement; and
(iv). matters relating to public policy ground.
These challenges may lead to significant impacts to the practice of mediators.
25. On some occasions, a mediator may be required by a mediation party to supply evidence to a competent authority of a Party to the Convention that a settlement agreement is resulted from mediation for the purpose of reliance and enforcement of that settlement agreement in the relevant Party to the Convention. Arguably, it may lead to additional risks (i.e., breach of confidentiality) to the mediator even the respective mediation case has been concluded.
Mediation in Kazakhstan
Summary of intervention
Sergei Vataev
Our webinar is taking place on a notable date for mediation in Kazakhstan – the Law “On Mediation” of the Republic of Kazakhstan was adopted precisely ten years ago, on January 28, 2011.
During these ten years, the mediation got rapidly developed as a civil society institute. All branches of the government, and Kazakhstan judiciary, in particular, applied significant efforts to promote mediation in resolving disputes.
Kazakhstan law does not require mandatory mediation in any proceedings. However, the courts strongly encourage the parties to attempt a mediation procedure in family, labour, civil law claims, and small criminal cases.
In Kazakhstan in 2019 (the most recent available statistics as of January 28, 2021), the following number of civil court cases were decided with the use of mediation procedure:
Family matters – 19252 out of 60642
Inheritance matters – 217 out of 4640
Property claims – 481 out of 9916
Housing matters – 1580 out of 14635
Land matters – 155 out of 3493
Contractual matters – 14873 out of 208877
State procurement matters – 126 out of 25463
Tort claims – 540 out of 1905
Losses and Damages matters – 2210 out of 8010
Consumers matters – 271 out of 550
Defamation and Business Reputation matters – 106 out of 385
IP Rights matters – 158 out of 467
TOTAL – 41512 out of 368079 cases were concluded due to settlement through a mediation procedure.
To become a mediator in Kazakhstan, one must undergo special training, the program of which is approved by the government. There are three tiers of training – the general training course, specialized training courses, and the trainer’s course.
After that, the holder of a certificate must become a member of a mediators’ organization if they wish to engage in mediation activity on a professional basis. If the mediation is not their main line of activity, and they engage in it from time to time, they must be listed in the register of a local mayor’s office. There is no difference between the scope of rights or limitations depending on whether a person is a professional mediator or a non-professional mediator.
A mediator must be registered either with a professional organization or with a local authority; otherwise, they cannot conduct mediations.
A person holding a mediator’s certificate issued by an organization not accredited in Kazakhstan cannot become a mediator.
There are no special requirements other than such registration to maintain the mediator’s status.
There are no special rules of ethics for lawyers which would be applied specifically to the mediation procedures. The advocates (lawyers specially licensed and admitted to the criminal defence practice) are generally guided by the Code of Professional Ethics of Advocates adopted by the national bar association. Legal consultants (general law practitioners) may be members of multiple chambers, each of those chambers must have their rules of ethics, which usually are based on similar universal principles (integrity, honesty, commitment to the rule of law, diligence, loyalty to the client, obligations to honour confidentiality obligations, prevention of conflicts of interests, etc.).
Formation of mediators’ organizations is specifically provided in Article 13 of the Law on Mediation; the same article provides that one of the mediators’ organizations’ function must be professional training of mediators and subsequent skills improvement activity. Currently, there are more than 120 mediators’ organizations.
However, there are no legal requirements in Kazakhstan for mediators to engage in continued professional development.
Compliance in Covid’s time
December 17, 2020
Mélanie Diaz
Without a doubt, the experience of a pandemic such as the coronavirus has disrupted our society at all levels, testing us all, generating as many crises as opportunities; although it is proving difficult to see the light at the end of the tunnel, we must not lose sight of the opportunities that this unexpected situation also offers us.
The „new normality” we are currently experiencing has highlighted the urgent need to clearly identify the Compliance risks to which an organization may be exposed and the appropriate management of these risks, even for scenarios as unpredictable as a pandemic, to which it is very important to consider specific contingency plans.
Ethical culture
Companies must understand the need to establish an internal culture of Compliance and a commitment to ethics that permeates their actions, thus making of good practices the norm within the company and in its relations with third parties. If this is still a pending task, it is a good time to review internally the implementation of these issues in the organization.
Any new business movement, a sale, an absorption, a merger or a spin-off, and any business transformation, will be clouded by the lack of a good documentary, procedural, fiscal or ethical order, with the corresponding protocols to support them, since it should not be forgotten that article 130.2 of the Spanish Criminal Code establishes that criminal liability is transmitted and not extinguished, as happens with the death of individuals. A similar situation is to be found in other countries.
Market requirements
It is important to have 'the house in order’ and, increasingly, a good Compliance incorporated, if we want to sell to certain customers who, more and more, incorporate ethical rules that prevent buying from companies that do not have incorporated such instruments of internal control and traceability, to ensure a good regulatory and ethical.
It is an indisputable fact that, if we want to be accepted as provider of companies of a certain size, we have to implement these procedures, so that, if a company aspires to wider and higher horizons, one day or another it is going to face this inconvenience.
Anticipating this in advance will facilitate this moment and access to better business partners will be much easier. We should not leave it 'for later’. We are seeing with this pandemic how difficult it is for us to foresee, our tendency to 'nothing will happen’; and the consequences of this are being experienced these days. Let us try, in our business, to be one step ahead of the events.
The European Convention on Human Rights – vivid and powerful legal instrument?
December 10, 2020
Marzena Świstak
The Convention for the Protection of Human Rights and Fundamental Freedoms, customarily referred to as the European Convention on Human Rights, was opened for signature on 4 November 1950. Therefore, this year there is a special moment to underline the significant role of that international regulation. In adopting the text of the Convention, the Member States of the Council of Europe expressed a common heritage of political ideals and traditions, respect for freedom and the rule of law, but also the respect for the rights expressed in the Convention. The proper understanding and application of the Convention by States Parties was to be ensured by the European Court of Human Rights (established in 1959). The Republic of Poland signed the Convention on 26 November 1993 and ratified it on 19 January 1993. From 1 may 1993, it also recognized the jurisdiction of the European Court of Human Rights.
By acceding to the Convention, each country confirms the will to ensure, in real terms, the fundamental rights and freedoms expressed in it. The aforementioned are considered as the foundation of justice and peace in Europe. The European Convention on Human Rights has become the most important Treaty in the Council of Europe acquis (now there are 47 States as parties to that regulation). The European Convention on Human Rights has played an important role in the development and awareness of human rights in Europe.
The European Convention on Human Rights is a unique human rights protection system at European and global level based on an individual complaint mechanism to the European Court of Human Rights And to supervise the implementation of its decisions by the Committee of Ministers of the Council of Europe. It is often the last or even the only instance of appeal for people whose rights have been restricted or even breached. The governments of individual States Parties to the Convention have the duty (and even the right) to appoint candidates for the judiciary among the highest moral level and recognized uncontested legal qualifications. They shall also ensure that the national legal system is functioning in a manner that respects the values and principles of the Convention. An individual complaint to the Court should be considered as a last resort. What is more, if it has been already submitted and, as a consequence, resulted in a judgment, the State is obliged to implement it immediately and fully.
From the perspective of almost thirty years, there is no doubt that participation in the European Convention on Human Rights has affected (and still affects) a fundamental change also in the Polish legal order. This led e.g. to eliminate institutions and practices that are incompatible with the values of the Convention. It was also an impetus for national legislators to introduce solutions resulting from the authoritative interpretation of the Convention (e.g. the provisions on zabazan claims) and fundamentally influenced the Polish courts and tribunals’ judicial trend. Between 1993 and 2015, the European Convention was a crucial, international signpost of the right direction for the evolution of the regime of the Republic of Poland toward a model of the rule of law.
Under the Article 9 of the Polish Constitution, Polish public authorities are bound by judgments of courts or decisions of other international or supranational bodies. In practice, this problem is primarily a matter for the rulings of the European Court of Human Rights. Although such judgments do not directly bind the authorities and they do not directly shape the legal situation of persons, for example, they do not cause the repeal of acts of national law which have infringed human rights. However, the statements in the European Court of Human Rights rulings indicating violations of the Convention mean that the national authorities acted unlawfully. These authorities may not contest the decision of the European Court of Human Rights that the infringement existed. The judgment requires the State to take action to restore legal compliance. However, in situations where international law standards are directly applied, this application should take into account the importance (interpretation) of the international bodies legal analysis. The consequences of the statement of an infringement of personal rights create certain obligations between the victim and the country which committed the infringement. It is understood that the issuing of a judgment declaring an infringement of the Convention constitutes a „right of redress”. Furthermore, the State should take all necessary steps to eliminate the effects of the infringement has been found and restore the situation. Nevertheless it should be posed that the mere fact of finding an infringement of the Convention does not create an obligation to take precise action. Member States have the freedom to choose the way to redress the judgment, which cannot be taken over by the European Court of Human Rights. It is not possible to order any State to amend its internal legislation. The Convention does not, however, impose any obligation to resume legal proceedings which have become final. Otherwise, it would entail a significant reduction of a feeling of legal certainty. The need to prevent further infringements, must not involve modification of a specific resolution already issued, but may consist the impetus to undertake specific steps to avoid similar, wrong actions in the future. The inability to resume legal proceedings should not be understood as the ignorance by a State Party to the Convention.
The significance of the Convention is not to be underestimated. It is not only the voice of history. The most influential framework of rights that should be protected is under the regulation of the Convention. Just name the Article 6 that provides a detailed right to a fair trial, including the right to a public hearing before an independent and impartial tribunal within reasonable time, the presumption of innocence, and other minimum rights for those charged with a criminal offence (adequate time and facilities to prepare their defence, access to legal representation, right to examine witnesses against them or have them examined, right to the free assistance of an interpreter). The majority of convention violations that the court finds today are excessive delays, in violation of the „reasonable time” requirement, in civil and criminal proceedings before national courts. Another significant set of violations concerns the „confrontation clause” of Article 6 (e.g. the right to examine witnesses or have them examined).
Nevertheless, there are many protection areas, that may be mentioned also as crucial and actual at the moment. It is enough to mention academic freedom requirement that should be guaranteed in the democratic society. Though academic freedom is not explicitly provided for in the European Convention on Human Rights, the European Court of Human Rights has brought issues regarding academic freedom within the ambit of the Convention. It tends to do so under Article 10, which guarantees freedom of expression. What is more, even in the Polish legal system recently there have been undertaken legislative measured within the area mentioned. The statutory draft of “package of academic freedom” should be mentioned. The aforementioned shows that the Convention’s regulations are constantly vivid in the legal area. It is not a “distant regulation”, but a fundamental framework that may be used as a flexible instrument of human rights’ protection.
The European Convention on the Protection of Human Rights and Fundamental Freedoms – Seventy Years Onwards
December 3, 2020
Marzena Mierzewska
Katarzyna Kłobukowska
On 4 November 1950 the European Convention on the Protection of Human Rights and Fundamental Freedoms was adopted. Seventy years have passed since that momentous date. The Convention sets forth a number of fundamental rights and freedoms (right to life, prohibition of torture, prohibition of slavery and forced labour, right to liberty and security, right to a fair trial, no punishment without law, right to respect for private and family life, freedom of thought, conscience and religion, freedom of expression, freedom of assembly and association, right to marry, right to an effective remedy, prohibition of discrimination). It also created an enforcement mechanism : each and every person under jurisdiction of states parties can bring an individual complaint about a breach of her or his rights before the European Court of Human Rights based in Strasbourg, France.
Since 1950 Europe has changed beyond recognition and so has the legal environment within which each and every practicing lawyer in Europe works and thinks about law. A question naturally arises in this connection what is the Convention’s relevance today to practicing lawyers’ everyday work and to their involvement in public matters.
This anniversary coincides with the worldwide pandemics of COVID 19. The pandemics affects – and not for the better – the way in which human rights, including those protected by the Convention, can be exercised, enjoyed and vindicated. It is the responsibility of lawyers to scrutinise the manner in which this calamity restricts individual rights and to react where necessary.
What do we owe as lawyers to the Convention ? What is its significance today for citizens of Europe in turmoil, to the troubled societies and political systems in flux?
It came as a bad surprise to many, including the legal community in Europe, that values and fundamental ideas which the Convention embodies and protects are currently under attack in many countries. Indeed, the « common heritage of political traditions, ideals, freedom and the rule of law », referred to in the Preamble to the Convention, is being either denigrated by public authorities, or openly disregarded in the application of laws, or both. The very notion of « effective political democracy » that the Preamble reaffirms is in certain countries reduced to mere majority rule, without proper regard to division of powers, checks and balances and the situation of political minority. Worse, there are sad examples of overt and unashamed violations of human rights in certain countries.
In this context the Convention and human rights can no longer be taken for granted. « Observance and common understanding » of human rights are not a given we have somewhat blithely assumed during the last thirty years to serve as a bottom line for the actions of all public authorities. Hence, the obligations, attitudes and emotions of the legal community towards the Convention should evolve in the light of recent developments. What are those obligations ?
In our view, the are the following :
RELEVANCE AND RELIANCE
Firstly, to ensure that practsing lawyers are well aware of the Convention’s – and, broadly, human rights – significance to their everyday practice. The Strasbourg Court is not a far away institution interested in lofty ideas and grandstanding, unrelated to the realities of legal practices in big and small cities in Hungary, Poland, France or Spain. Human rights are relevant to our clients’ cases before the each and every court in Europe. Be it in a civil case where the essence of access to court is restricted by unduly high court fee, or in a criminal case where a lawyer cannot have access to a freshly detained person who is being questioned by the police in lawyer’s absence, or in an administrative case concerning the amount of compensation to be paid by the state for expropriation of property – all those apparently run- of- the-mill situations known to every lawyer touch upon the rights guaranteed by the Convention. It is the lawyer’s responsibility to raise human right complaints before the domestic courts all the way to the highest national court ; also to comply with an obligation to exhaust domestic remedies before bringing an application about a breach of individual rights to Strasbourg. In other words, it is the lawyer’s obligation to rely on and to invoke the Convention rights and guarantees in our everyday practice ; not necessarily in order to bring the case to Strasbourg, but also to remind the courts and all public authorities that human rights are normal part of the legal landscape in which they operate.
PROFESSIONAL KNOW-HOW
In order to be able to do so, human rights education and knowledge of the Court’s case law must be a natural part of legal training, both this leading to access to legal professions and the ongoing one. The Court’s case-law is vast, the Convention is a living instrument adjusting itself to changing realities of modern life by way of the Court’s decisions and judgments. It is our responsibility to follow it, to make it a part of our legal thinking and, importantly, to learn and teach within the profession how the Convention standards are to be made operational in our country, in the context of our legal systems and in cases where we represent clients.
THE CONVENTION AS YARDSTICK
In the context of public life it is a major task of the professional associations to be vigilant and able to assess new legislation, parliamentary bills and practice of the public authorities from the Convention perspective. Does a new statute respect the Convention standards ? Will a Bill debated by national parliament enhance human rights or rather shamelessly breach them ? Do public authorities willing and able to assess human rights consequences of legislation they envisage ? Does the established practice of domestic courts, prosecutors, police and public administration take heed of the Convention standards ? Do we as associations of legal professionals have enough resources to carry out such assessment ? Do we have human rights bodies within our associations which are tasked with it ? Is the voice of such bodies heard within our professional associations ? Do lawyers’ associations take position and voice their concerns where human rights are breached or disregarded by the public authorities ? Of course the position and importance of professional associations of lawyers in public life will vary from country to country depending on their seriousness, longevity, national legal tradition – and by willingness, or lack of it, they display to take part in public life. It is for us lawyers to make our professional associations actors of public and political life instead of mere trade unions concerned only with defence of our professional interests. To sum up, the Convention, the Strasbourg Court’s case law and, more broadly, human rights are a yardstick by which public policies, laws and public governance should be measured – and legal professions should be willing and able to take them to task.
THE CONVENTION IN THE COURTS
« Dialogue between the European Court of Human Rights and the national judicial systems is fundamental to the Convention system. » said Robert Spano, the Court’s President elected in 2020, in his recent message to the Superior Courts Network, set up by the Court in 2015. The task of the Network is to ensure the effective exchange of information between the Court and the national courts belonging to the Network, on the case-law of the Court, Convention law and practice and the domestic law of States whose superior courts are members of the Network.
Indeed, the national courts are primary actors who have a central role to play, implementing the principles and values of the European Convention. It is for the courts to apply the case-law of the Court in everyday judicial practice ; not only superior courts but for each and every court in Europe. It is the responsibility of judicial systems to make the Convention a part and parcel of judicial training. The attitude of the courts to lawyers invoking the Convention and the Court’s case-law in their submissions made on behalf of the parties will certainly vary, depending on the substance of the case, on the clarity of the argument made by the party, on the relevance of the human rights element to the subject matter of the case. However, it also happens that the courts routinely disregard or lend a deaf ear to arguments based on the Convention, either because they do not understand them or because they consider them irrelevant or because they are of the view that they are not obliged to apply the Convention in their decisions. It falls to the lawyers to keep the courts awake to the Convention as living and binding legal reality.
STRATEGIC LEGISLATION
We can and should think of the ways in which strategic legislation techniques are to be used in order to correct discrepancies between our national legal systems and the Convention standards. A finding of a violation of the Convention rights by the Strasbourg Court gives rise, on the one hand, to an obligation on the part of the respondent state to comply with individual measures provided for by that judgment. Most often, it would entail payment of the amount of just satisfaction awarded by the Court. On the other hand, the judgment imposes on a respondent state an obligation to amend domestic laws or practices in which the violation originated. Hence, the Convention system provides for a mechanism by which national laws incompatible with human rights can eventually be changed. On the national level, some serious thinking should be given by legal assiciations on ways and means of identifying problems which raise an issue as to their compatibility with the Convention. Legal community should not only be aware of such problems, but also actively be on the lookout for and search live cases before domestic courts where such problems are involved. Such cases, if lost by the party to it before national courts, can further be brought before the Strasbourg Court with a view to obtaining a judgment to the advantage of an applicant whose rights have been violated on the domestic level. Ideally, some coordination in identification of such problems, finding appropriate leading cases and encouraging parties to it to bring them before the European Court of Human Rights is certainly called for within legal professions. It is of course in the nature of things that representing the applicants before this Court in cases which can be vehicles for legal reform is of essence.
SUPPORTING APPLICANTS
It is common knowledge that the Strasbourg Court has a very heavy docket. Currently approximately 60 thousand cases are pending before it. It has also been often criticised for the time it takes the Court to rule on an individual case. Quite apart from the reasons of such length and from various and well-known measures which have been taken over the last twenty or so years to make the Court act more speedily, it is a lawyer’s professional and ethical obligation to support her or his client who might get discouraged and disappointed by the duration of the proceedings. It should be borne in mind that the case most often than not touches on issues of vital importance to the client, not only legal one, but oftentimes also emotional or even existential. This can be said in particular about cases touching on matters of private and family law, children access cases, cases relating to personal identity, names, gender or cases concerning medical or health issues. There’s more to those cases than just interesting legal issue ; there’s also a human life story against which such issue has arisen. It is the lawyer’s responsibility to convince the client that his or her case is worth being taken to the Strasbourg Court and to accompany the applicant throughout the long legal life of the case, both in legal and sometimes also emotional terms ; it is for the lawyer to demonstrate perseverance and courage and to hold the client’s hand, so to speak, until the end of the case, in the hope that the outcome will be to the client’s favour.
EDUCATION OF SOCIETY AT LARGE
Against the background of COVID 19 and the rise of populisms in a number of countries it is important that lawyers educate the society at large. Human rights are not luxury that can be dispensed with in difficult times. The Convention is there to protect rights which way too often are currently presented to the public as impediments to various government policies, allegedly designed to combat the pandemics and to enhance security. It is for the lawyers to remind the general public the substantive content of rights guaranteed by the Convention and to alert it to dangers of shortcuts taken or envisaged by public authorities. Failure to do so may contribute to rendering rights guaranteed by the Convention and interpreted by the Strasbourg Court toothless and regarded by the powers that be as mere lip service of no relevance to political realities and to everyday life. Worse ; certain governments and public officials have adopted and encouraged hate speech against marginalised groups, against LGBT people or migrants, women or people of minority religions, or against citizens not sharing the views of the ruling parliamentary majorities in order to rule by fear.
STRASBOURG JUDGES
It is vital to have the best and brightest human rights lawyers sitting on the Strasbourg bench. Currently, terms of office of nine judges (Bosnia/Herzegowina, Moldova, Croatia, Russia, Belgium, Poland, Czech Republic, Greece and Switzerland) have either come to end or will end shortly, in 2021. Either relevant domestic procedures are under way in order to form lists of three candidates ; one of them will later be elevated to this judicial post by a vote in the Parliamentary Assembly of the Council of Europe. Legal communities are well placed to monitor the national procedures and to see to it that they are fair and transparent. The Convention itself does not provide for any specific manner in which the candidates should be selected on the national level, but human rights lawyers and legal associations should insist that the involvement of the civil society at large, the academia, the professional associations and also the parliamentary bodies in this national selection procedures is significant. The decisions in this respect should not be made behind closed doors of ministerial offices. It is obvious that the Strasbourg judge mustn’t be a representative of state, but a human rights judge, committed, hard working and respected by his or her peers in the national legal community – but it always serves a purpose to publicly repeat this apparent platitude.
Human rights go hand in hand with rule of law; they are intrinsically intertwined. Hence, the community of practicing lawyers in Poland regard certain acts and declarations of the political powers with mounting concern. The authority of judicial institutions has been undermined or compromised, the election laws have been amended so as to weaken guarantees of fair elections, women’s rights, especially reproductive rights, are under attack, statutes are adopted with unseemly haste, without proper parliamentary debate ; in short, human rights are in danger.
We are certainly living in interesting times. Human rights are not something which has been safely acquired and irrevocably won. We cannot be complacent about them. Let us have a good rest during the coming festive season – and let’s come back to work full of new energy in the defence of human rights and rule of law.
Case Jezior v. Poland
Marcin Drzewicki
August 19, 2020
I. Statement of facts
Mr Andrzej Jezior, residing in Ryglice (Małopolskie Voivodship) [Applicant], ran a blog related to local matters. He was also a candidate for the municipal council in 2010. Readers of the blog were able to publish comment without the need to register an account. However, the Applicant did include a letter of instruction in which he indicated that he was asking for only thoughtful and factual comments, and not suppositions. Moreover, the comments could not be offensive. The Applicant also encouraged to publish comments signed with full name and not anonymously. On 5 November 2010 (about 2 weeks before the local elections), an anonymous offensive comment was posted on the blog about the mayor of Ryglice, who was seeking re-election, and his family. It was immediately removed, but after a while it was posted again. On 9 November 2010, the offensive comment with identical content was re-published and then removed immediately. As a result, the Applicant decided to introduce access control and require prior user registration.
I. a) Judicial proceedings under the Election Act (ustawa o ordynacji wyborczej do rad gmin, rad powiatów i sejmików województw z dnia 16.07.1998 r.) [Election Act]
On 12 November 2010, the mayor submitted an application to the court under Article 72 of the Election Act. By the judgment of 15 November 2010, the regional court in Tarnów allowed the mayor’s request, forbid the Applicant to further disseminate the content of the comments on the blog and ordered to apologize mayor on his blog. Moreover, the court ordered the Applicant to pay 5.000 PLN (around 1200 €) to a charity organisation and reimburse the court fees. In the reasons for the judgement, the court emphasized the special nature of the procedure governed by the Election Act, pointing out that the purpose of this procedure is to ensure that remarks that have not been proven and may adversely affect the candidate’s reputation during the elections are corrected as soon as possible. Considering Article 72 of the Election Act and article 24 of the Civil Code, the court found that the comments published on the blog were propaganda material and their content was unproved. Furthermore, the court concluded that the Applicant is the party who maintained the blog and therefore was obliged to ensure that the comments on it were truthful.
The Applicant appealed to the Kraków Appeal Court, arguing that the first instance court had failed to take into account the blog’s specific nature as a means of communication and had wrongly held him responsible for the content of the comments posted on the blog. Moreover, the applicant indicated that the court of first instance did not consider article 14 of the Act on the provision of electronic services of 18 July 2002.
By the judgment of 17 November 2010, the Kraków Appeal Court dismissed the Applicant’s appeal. He shared the position of the first instance court, finding that the Applicant was in fact responsible for the comments posted, as he had not prevented their publication.
I. b) Judicial proceedings under the Civil Code of 23 April 1964 regarding the protection of personal rights
After he failed in the elections, the mayor sued the Applicant claiming that there was an infringement of his right to good name under Article 23 and 24 of the Civil Code. By the judgment of 3 October 2011, the Regional Court in Tarnów upheld the claim and obliged the Applicant to apologize the mayor by publishing a statement in the press and to pay 1.000 PLN in respect of non pecuniary damage.
The Applicant appealed against the first instance ruling. By the judgment of 19 January 2012, the Kraków Appeal Court overruled the judgment and dismissed the mayor’s claim. The court found that it was undisputed that the comments infringed the mayor’s personal rights, although the Applicant himself was not their source. The court stated that the requirements of freedom of expression and the specificity of Internet hosting services preclude any form of prior checking by the host of the content shared. Even in the case of posting on a website content that could adversely affect someone else’s reputation, the slightest control on that content by the host would be contrary to freedom of expression. The court finally found that the Applicant could be responsible for publishing the comments only if he did not remove them immediately, which was not the case.
II. Legal status
The Applicant, relying on Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms [Convention], alleged that the rulings made in his case (under the Election Act) breached his right to freedom of expression, which was protected by the Convention.
The European Court of Human Rights [The Court] found that the domestic judgments delivered against the Applicant constituted interference by public authorities with the exercise of his freedom of expression within the meaning of Article 10 of the Convention. The Court noted that, in order not to violate Article 10 of the Convention, such interference had to be „in accordance with the law” and pursue a legitimate aim in accordance with paragraph two of that article and, moreover, be necessary in a democratic society to achieve that goal (Magyar Tartalomszolgáltatók Egyesülete i Index.hu Zrt v. Hungary, no. 22947/13, § 46, judgment of 2 February 2016). The Court stated that it was not responsible for adjudicating on the appropriateness of the measures chosen by the legislator to regulate a specific area; its role is limited to verifying that the methods adopted and the consequences attached thereto are consistent with the Convention (Gorzelik v. Poland, no. 44158/98, § 67, judgment of 17 February 2004). Consequently, the Court limited itself to examining whether the adoption of the Article 72 of the Election Act in conjunction with Arts. 23 and 24 of the Civil Code by the domestic courts was provided for the purposes of Art. 10 § 2 of the Convention.
The Court noted that in the present case the Applicant had decided to allow internet users to post comments without prior registration, but at the same time had introduced certain measures to detect potentially illegal content. The Court also noted that the Applicant had posted a message to users, urging them to respect the principles of good conduct and the rights of others. It is also important that the applicant immediately withdrew the disputed comments as soon as he was informed of their presence. In addition, he temporarily introduced access control and the obligation to register users in advance with an e-mail address.
As regards the domestic proceedings, in which the Applicant was ordered to stop disseminating the disputed comments and to apologize for them and was ordered to pay 5.000 PLN to a charity organisation and reimburse court fees, the Court found as follows. Following the cumulative application of the above-mentioned measures against the Applicant, he was subject to a sanction that could have an inhibitory effect on someone who, like himself in the present case, runs a blog. In this regard, the Court reiterated that the attribution of liability relating to comments from third parties may have negative consequences for the space reserved for comments on a website and discourage freedom of expression on the internet (Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v. Hungary, no. 22947 / 13, § 46, judgment of 2 February 2016 and Delfi AS v. Estonia, no. 64569/09, § 144, judgment of 16 June 2015).
In conclusion, the Court stands in a position that the domestic courts, which adjudicated in the proceedings instituted against the Applicant under the Election Act, failed to ensure a proper balance between the right to freedom of expression and the mayor’s right to respect his reputation as a candidate in local elections. The judgments of the domestic courts constituted a disproportionate interference with the Applicant’s right to freedom of expression and were therefore not necessary in a democratic society. Therefore, there has been a violation of Article 10 of the Convention.
III. Judgment assessment
This judgement is the first ruling determining about the notice and takedown procedure in a case concerning the obligation to remove content in a political debate. The Court – contrary to the Delfi A.S. v. Estonia (cited above) – held that the blogger could not be held responsible for the posted comments. It results from the case established facts, according to which the Applicant promptly removed the offensive comments, unlike in the Delfi case. Finding the Applicant as a person violating the Convention might have negative implications both for himself and for other bloggers who could be effectively discouraged from engaging in such activities.
Finally, this judgment should be regarded as a valuable and important guideline for Polish courts, which will probably have to deal with more similar cases. There is thus no doubt that in the present case the European Court gave an unequivocal priority to Article 10. However, the question arises whether this judgment has neglected or not to place a proper balance for the protection of reputation of others in this case?
Link to the full text of the judgment
The virtual law firm
Alex Tallon
July 15, 2020
The evolution that our society has known in the last forty years is impressive and mainly has to do with the development of new technologies. The question is to what extent this has already profoundly influenced the legal profession.
In the current organization of the law firm, the possibilities offered by these means of communication and the access that this makes possible to documentation and thus to knowledge must surely be taken into account and be implemented.
The Covid crisis has got this advantage that it has forced to accept and implement forms of co-working including the possibilities of teleworking and virtual meetings. This means however that, as far as law firms are concerned, these must change fundamentally their organization and also, in a certain way, their relationship with the clients. The manner to provide legal services must take into account the use of these technologies. These technologies allow various forms of digitization or dematerialization of the lawyer’s activities. The most extensive form of dematerialization consists of the paperless management of the office with the collaboration between the participants of the office on an Electronic Collaborative Platform (here abbreviated as ECP). Current contribution aims to review the possibilities that the new technologies allow for the organization of the law firms, their services to the client, the profitability of their activities, and how this should be accommodated within the application of our deontological rules.
A. The organization of a modern office
1. Influence of modern technologies
It is not disputed that our society has undergone tremendous evolution in the field of word processing, storage and communication technologies over the past 40 years. This evolution within society gives real meaning to the concept of the globalized world. Physical travel is no longer necessary to be in direct contact with the whole world. What’s more, relocations are no longer necessary to gain access to all of science and knowledge. The dangers of this are known. The control of the content and transfer of knowledge and documentation is nonexistent. But the generation brought up on these new technologies and making them their own approaches the world from this perspective.
These new technologies also affect services.
This of course applies to all practitioners of a liberal profession, from the architect to the physician. But above all, this applies to the legal profession. The reason for this is that the lawyer provides a service for which at first sight no special knowledge is required from the moment one has access to the applicable texts. In the current knowledge society in which everyone has, or at least can easily, access, or at least have access to, all laws and regulations, whatever their origin, the lawyer must clarify the added value he has to offer. Good and targeted use of these modern technologies is indispensable for this.
a. Organization of the office.
Modern technologies now allow access from anywhere in the world to the content of all files that are managed.
This of course requires working completely paperless.
An ECP office will therefore have to offer the option of digitizing all files.
To this end, an adapted archive management will have to be established, as well as a nomenclature, which makes it possible to request any document very quickly.
All useful documentation must be electronically accessible. This both internally (models and the like) and externally (access to databases and the like).
More than before, the necessary precautions will have to be taken regarding the preservation of the confidentiality of the data. However, the ECP office cannot close its eyes to the dangers of theft of its know-how and knowledge. Clear agreements must therefore be made with employees with regard to the transfer of copyrights, and the retention of data that may never be copied or carried over. Apart from the deontological aspects associated with it, every office must think carefully about the politics it wishes to pursue towards its employees.
This organization, made possible by modern technologies, is optimized by externalizing the digital storage of data and documentation, as well as all kinds of services related to the management of the software used, in other words through cloud computing. Importance must be given to secure the documents in the cloud.
b. Place of supply of services.
The law and the rules of the bar require that the lawyer has an office, which means a physical establishment in the district of the Bar Association where he is registered. He must be available at that office and have the necessary space to receive clients and keep his files.
A physical location now serves as a starting point to enable registration at the bar. However, it should be possible to request registration at a bar without providing a physical office address. Or at least it can be assumed that the lawyer’s place of residence can serve to determine the place of the bar where he can register.
One must also comply with the rule of uniqueness of the office. Does this ultimately make a lot of sense, now that people can work from anywhere in the world without there having to be any physical connection with the country from which one is supposed to work. For lawyers working in a partnership, this means that they must all be at the same address. In an ECP office, the bar should abandon this maxim. Indeed, in a world where IT allows communicating with anyone anywhere, it makes little sense to require lawyers who have decided to collaborate to also have a joint physical address. It would be advisable to take this (virtual) reality into account and to regard a joint electronic collaborative platform as a sufficient criterion to form a partnership. In that case of course with respect of the rules of conflict of interests.
c. The method of cooperation.
A law firm is primarily a group of people among whom the work that is entrusted by clients is distributed.
Assistance to the lawyer in the management of an electronic file is not of the same nature in an ECP office. These new tasks must be completed and must also be used optimally. It requires a thorough adjustment.
But cooperation with intellectual input must also be adapted to the electronic management of the office. Working with an electronic collaborative platform allows for great flexibility. Thus, more than before, the work can be delegated in an optimal way, with a more efficient and above all more reactive control, since the work is always fully available and controllable. The collaborative platform also makes it easy to collaborate on a file not only with two, but also with several people.
d. The service to the client.
The services of the lawyer mainly consist of quality and reactivity. The quality in itself mainly depends on the competence of the lawyer. The services in a paperless office can probably facilitate this quality by giving better access to documentation, closer control by the client (which one can grant access to the electronic file and thus the completed tasks), an optimization of the cooperation by to combine work force and experience.
Reactivity can also be optimized in an ECP office. The direct contact between client and service provider and the permanent possibility of exchanging information allow exceptional reactivity when compared to traditional working methods.
e. The execution of the service.
The traditional service consists of answering a legal question, editing contracts, assisting during proceedings. Most lawyers provide 'custom work’.
This has already been challenged in traditional offices by two evolutions: the specialization and the use of standard forms.
The electronic management of files and documentation allows law firms to create databases, so that they can fall back on work that has already been performed to provide an answer to the client.
These databases can also be made available to the client for a fee. The ability to provide more and more services as standard allows the profession to evolve from service to product provider. This fundamentally changes the legal profession, because the performance will have to focus more on updating data than on a file-related and specific answer to a legal question. The client will have access to the latter and will consult the law firm that can offer him the most reliable database.
This can also be optimized with the use of artificial intelligence. The challenge for law firms here is to gather sufficient financial resources to develop AI tools. Rather, it appears to be a task for lawyers’ organizations or partnerships based on mutualisation.
f. Access to knowledge.
Before the emergence of the world wide web, and the possibilities thus offered, access to knowledge in a certain matter was reserved for a few privileged people.
This time has passed. The knowledge is now available to everyone and immediately available. The question is what one does with this accessibility. In any case, expertise is still needed to actually convert this access to knowledge into usable knowledge.
The law firm can play a role in this. Internally by providing employees with the necessary tools to have electronic access to the most up-to-date documentation and, if necessary, their own database. The latter will certainly be part of an office’s intellectual value.
Externally through the exchange of data and knowledge with clients or even interested parties, whether or not for a fee.
2. The benefits
This organization offers several benefits to the lawyer and the client.
a. The cost of the service.
The elasticity of pricing of lawyers’ performance is high. The client is primarily interested in the quality of the work delivered.
However, the client is more sensitive than before to the cost of legal services. It must be admitted that this cost price is not cheap in the traditional working method.
So, there is undoubtedly an evolution going on, which is also influenced by computer science and social media, with the law firms also emphasizing the price-quality ratio of the services provided.
Because more and more work can be standardized, and because the presence on the net can also give greater visibility to more offices, competition is becoming more and more common, so that the rates can determine the choice of lawyer.
In the ECP office, fixed costs can be significantly reduced: teleworking allows the office space to be reduced significantly, the number of staff in charge of administrative tasks can also be reduced, in other words the costs of administrative support are reduced to a minimum.
This allows not to charge useless costs to the client.
For some specific performance, for some specific areas, the pricing is likely to be of little importance, and the reputation of the lawyer or firm is decisive for the choice of lawyer. However, this domain is shrinking and only applies to a small part of the legal market. For the remainder, and therefore for the most part, it will be important to demonstrate that quality is delivered at the lowest possible price. The development of an ECP office is undeniably an asset.
b. The quality of the service
Apart from this pricing, quality is of course important. This quality will always depend on the people who practice the profession. As a professional group, it therefore remains necessary to monitor the quality of the legal profession in general. Professional organizations can do little to nothing to provide a guarantee of this quality, to the extent that they must provide this guarantee. The client is therefore expelled on his own, and on what makes the reputation of some office or other. For this, people are increasingly focused on the comments in social media and the presence of lawyers or offices is not without importance. Ultimately, it is the market that provides insight into what is successful or not, and often, not always, this is accompanied by quality.
This quality is probably best framed in an ECP office and thus the principles of collaboration on an electronic platform:
– such an organization increases the reactivity of the lawyer; this to the great satisfaction of the client. The client thus has the impression that he has an in-house lawyer;
– the electronic collaborative platform makes it very easy to let a group of lawyers work together who, due to their diverse competences and experiences, can optimize the quality of the service.
c. The cooperation between the lawyers
The electronic collaborative platform is essential within the organization of the modern office. This increases the quality of the cooperation between the lawyer dominus litis of the file and often partner within the firm, and those who assist him in providing the legal services.
The absence of location-related services increases in practice the quantity and quality of the collaborative work in order to achieve the most efficient cooperation, with a view to the best possible execution of the mandate or answer to the legal question, and thus in the interest of the client.
d. The profitability of the law firm
The classically organized office suffers from numerous fixed costs. These undoubtedly have an influence not only on the price that can be attributed to the client, but also on the intrinsic profitability of the office.
An ECP office allows to reduce the fixed costs as much as possible. As a result, such an office has a high return on the final fee charged to the client.
e. The welfare of the lawyer
It is a widely recognized observation that today’s society generates more stress; the working comfort decreases rather than increases.
The choice that many offices have to make, regardless of the different levels of digitization, between the paper and the paperless office is probably no surprise. The compromise between the traditional working methods of the paper office and the various forms of working methods made possible by its dematerialization increases this stress, partly because double checking is required and there is a fear of mistakes or misunderstandings.
The resolute choice for an ECP office and the associated paper lessness, collaborative working methods and task management, allow for a more comfortable planning and execution of the work.
In particular, the electronic methods of task management take away the stressful aspect of an unidentifiable deadline. An electronic collaboration organization does not reduce the work or the deadlines but allows them to respond with greater serenity.
3. The disadvantages
A number of drawbacks, or at least risks, can be mentioned that are linked to this modern organization:
a. The remote and looser collaboration.
Cyberspace simultaneously creates a collaborative platform, but also an organization that is very much focused on the individual. This individualism must always be opposed, because it can degenerate into a trapped image. If the partnership is not always fueled by meeting moments – which may be electronic – there is a risk of losing contact and thus achieving the opposite effect from what is desired.
The ECP office must pursue an animation policy in various ways and develop a business model that strengthens the bond between the participants. This is also accompanied by building up a strong 'office brand’ (branding, communication) that also underlines the bond between the participants of the office for the clientele.
b. The blurred image for the client.
The modern office organization allows, in the extreme case, to manage files without ever having seen the client, let alone heard. This form of abstraction, and perhaps the absence of humanity, can create an impersonal image that is not conducive to customer loyalty. This must therefore be regularly answered and / or contested by building in moments for these personal contacts.
Building a strong 'office brand’ is therefore essential in order to convince the client of the cohesion of the participants of the ECP office.
c. Keeping the documents.
It should never be forgotten that there is still a need to keep the paper version of some documents, to preserve their evidential value. It is therefore necessary to combat the risk of losing valuable paper documents.
d. Loss of place binding.
Advice in legal matters often also has to do with identity and community. This can be interpreted culturally in different ways but is clearly location specific. The full digitization and non-location-bound office organization may ignore this cultural aspect, with all its consequences. Legal services remain a human matter, so it may also be related to the location of the persons requesting this legal service. The ECP office will therefore always have to take social and cultural considerations into account.
4. Is the modern office an ECP office?
The ECP office is therefore not a 'virtual office’ in the sense that it is not the second life version of a law firm. But it also allows it on the other hand. It is an organization that is fully committed to digitization and the use of the most modern techniques to practice as a lawyer.
Therefore, the modern office, the office of the future, is necessarily an ECP office. All offices have already opted for digitization but have almost never extended this to the organization itself of the working conditions.
It is this link that must be made to actually turn the law firm that uses a number of digitization techniques or modern technologies into a modern office.
There is a great degree of difficulty in moving from the traditionally organized office to an ECP office. A step-by-step transition to an electronic collaborative platform is almost impossible and requires taking so many obstacles that the outcome is uncertain. After all, it is not an evolution, but a true revolution in the organizational form of the office.
B. The deontological framework of the ECP office.
In every technological evolution, be it the telephone, the fax, the informatics, the mobile telephone, the legal profession has asked itself questions regarding the combination of this technology with the basic values of the profession. But too often people forget that technology is not an end in itself, but only a means of practicing the profession.
There is no choice in the field of tension between modernity and traditional values. Both must go together. Traditional values must not prevent modern interpretation of the way in which services are provided by a lawyer, at the risk of disappearing as a professional group.
1. Can modern technologies go hand in hand with safeguarding the core values of the profession?
This question should be examined mainly in the light of professional secrecy and the independence of the lawyer, the two core values that are sometimes said to be challenged when using modern technologies.
a. Professional secrecy.
The legal profession requires the respect of the professional secrecy as a foundation of the lawyer’s statute. It means that the core activities of a lawyer can only be exercised in a privileged relationship of trust between the lawyer and his client. If a client cannot trust his lawyer, it is not possible for the lawyer to perform his duty of defense and determining the legal position of his client.
This requirement to safeguard professional secrecy is not a right, but a duty of the lawyer.
It must therefore be stated that, in the exercise of his profession, the lawyer makes every effort to guarantee professional secrecy.
In most cases he does this by not answering questions about a file, by not disclosing the information, etc.
This professional secrecy will also protect confidential correspondence and documents against criminal prosecutions, albeit with occasional exceptions that do not alter the fundamental principle.
When it comes to the use of modern technologies, the lawyer must make every effort to keep confidential the information communicated to him.
However, this requirement must be met with common sense.
Thus, it will not be forbidden for an employee to take cognizance of confidential information, for example by typing a confidential letter. This is then called shared professional secrecy. The lawyer shares his professional secrecy with the persons he entrusts with executive duties.
Nor will it be required that all data entrusted by a client be put in a safe. No bar has ever considered it useful to oblige a lawyer to install a high-performance alarm system in his office.
In other words, when a client provides confidential information to a lawyer on a medium, there is always a risk that this document will end up in the wrong hands at some point, even if the risk is minimal and the lawyer will do everything to avoid it.
Hence, any prudent lawyer will sense when to take special measures for certain files or documents.
There are several reasons for this, including:
– the document is part of a very sensitive file
– the document is unique: losing it would have very serious consequences for the client
In these cases, it can be assumed that these documents would be stored in a safe, for example; or that the lawyer refuses the original, having regard to the risk involved in the event of loss.
It must be considered as a form of prohibition of the use of modern technologies to make this subject to strict conditions in order to preserve confidentiality. This makes it impossible to use these technologies. As if the lawyer who uses these technologies would not pay attention to this confidentiality or that his client would ignore it.
This applies, inter alia, when talking about terms and conditions imposed by the providers of these modern technologies.
Bar leaders who consider that certain forms of these technologies cannot be used because they would not provide sufficient protection for professional secrecy bypass market mechanisms to which the lawyer, like any service provider, must submit.
However, Bar organizations could join forces and impose conditions on providers of modern technologies. But is this one of the core tasks of a Bar Association?
b. The independence.
The use of modern technologies makes the legal profession dependent on the access providers to these technologies.
Likewise, every law firm relies on modern means of communication and electricity. This 'dependence’ does not jeopardize the independence of the lawyer.
The lawyer’s independence is a state of mind. It is difficult to include this in deontological rules, other than by introducing certain categorical prohibitions (like the rules concerning the conflict of interest).
The fact that the lawyer is dependent, for the organization of his office, on a number of service providers who can have a very important influence on the way in which this lawyer provides his services, does not affect the fact that he exercises his profession in complete independence.
2. The position of the CCBE
Few bars have regulated the use of modern technologies. Most bar councils assume that the ethical rules apply unchanged, without the technology used by the lawyer having any influence on this. It is often framed in guidelines or recommendations. Whether these meet the real needs is often the question.
For this specific topic, we can refer to the guidelines 'on the use of cloud computing services by lawyers’ adopted by the CCBE on September 7, 2012. The CCBE wants to draw the attention of attorneys to the risks associated with the use of 'cloud computing’.
Cloud computing is defined as an IT infrastructure in which data and software can be stored and adapted in external servers that are managed by a service provider via the Internet.
The CCBE rightly states that for the individual lawyer a number of questions can be asked when using cloud computing, which include issues such as:
– professional secrecy and data protection: what is the security of the system? What happens to confidential information and where is it stored? Is there a risk of unauthorized access to the data, both internally (personnel and subcontractors of the provider) and externally (hackers via the internet)?
– Extraterritoriality: are servers used in countries where there is not the same degree of protection as in Europe? Can the local authorities of the place where the data is stored oblige the provider to grant access to confidential information stored on this server?
– The not always clear contract terms with the cloud provider
The CCBE recognizes the great value of cloud computing, but points to the need for lawyers using cloud computing to take the necessary steps to ensure that the confidentiality of its client’s data is guaranteed.
That is why the CCBE considered it useful to lay down these guidelines. In summary, insofar as the rules of the bar allow data to be stored outside the office, the lawyer must ensure that this data is stored securely and in accordance with the European Data Protection Directive; the lawyers who use cloud computing should therefore have an internal policy regarding the way in which they deal with this cloud computing; the choice of the cloud provider must include a selection based on criteria such as experience, specialization, location, etc., with which monitoring of confidentiality is still possible; The CCBE thus also accepts that different ways of storing and using data can be recorded, depending on the type of data justifying a different level of security. The CCBE also recommends taking a number of contractual precautions and ensuring transparency to clients about the use of cloud computing.
Aware of the benefits of cloud computing and the likely impossibility of individual law firms to comply with all recommended guidelines, the CCBE invites national bars to develop mechanisms to make it easier for lawyers to comply with these recommendations, such as proprietary cloud computing infrastructure permitting respect for these guidelines.
3. Is an adjustment of the ethical framework necessary?
It should be noted that there is no specific regulation on the ECP office, but that the bars and national or international bar organizations issue recommendations or guidelines on certain new technologies, in the light of the existing regulations.
However, it should also be noted that these existing regulations are not always adapted to the needs of ECP offices. This applies, for example, to the physical office address, the forms of partnerships, but also to more essential principles such as conflicts of interest and confidentiality. A requirement of transparency is the best guarantee of preserving the essential values of the law profession. This transparency is of course accompanied by the agreement, explicitly or otherwise, of the client with the organizational form of the law firm that offers the services.
CONCLUSION
The existence of ECP offices is a reality. The bars and their organizations must also frame and encourage this.
Adaptation to modern technologies by a professional group that is particularly dependent on the organization and cooperation of the members of a partnership is essential. To forbid some form of use of modern technologies on the basis of a conservative approach to certain basic values is pernicious.
The ECP office allows the efficient and smooth provision of services for the client and reduces costs, which is a competitive requirement. In the current European context, it is important for law firms not to miss the train of modernity.
Protecting the rights of foreigners in a dispute over children in Russia
Ivan Kuznietsov
July 9, 2020
The number of international marriages is growing every year. Family law relations between citizens of different states is complicated by differences between the laws of different countries. The lack of a unified approach to regulating family relations and international treaties between Russia and other countries only exacerbates this state of affairs. And existing international legal acts, such as the Convention on the Civil Law Aspects of International Child Abduction (The Hague, October 25, 1980) cannot guarantee the protection of the rights of foreigners in Russia. In protecting the rights of foreigners, an integrated approach should be taken. For example, use mechanisms to protect the rights of foreigners in his country of residence, as well as in Russia. You should also remember that in such cases you need to act as quickly as possible.
International marriages are common today in Russia. Girls want to change their lives, marry a foreigner and leave Russia. In turn, citizens of foreign countries see Russian beauties as caring and loving wives who create homeliness. It is not difficult to get to know a person from the other end of the world today. Simple enough to go online. Various dating sites are full of ads for people who are looking for a couple.
On the other hand, when it comes to creating a family and giving birth to children, the question of legal regulation inevitably arises. It is not always easy to resolve the legal issue between husband and wife by Russian citizens. And what can be said if the wife is a citizen of Russia, and the husband is a citizen of Germany, for example. International law and international treaties between Russia and other countries begin to work. And in this area problems inevitably arise.
Consider the usual situation, which occurs quite often. Russian girl married a German citizen. Husband and wife constantly live in Germany, where they have a baby. But, as often happens, the family broke up. A woman takes a child and runs back to Russia. What can the father of the child do in this situation? How can he protect his rights?
Legal regulation of the parties
07/01/2020 in Russia a significant date. On this day, amendments to the Constitution of the Russian Federation were adopted. In the previous edition, international treaties and international legal norms had a higher legal force than in national laws. But now everything has changed. Article 15 of the Constitution of the Russian Federation says that laws and other legal acts adopted in the Russian Federation should not contradict the Constitution of the Russian Federation. Even more interesting is the amendment to article 79 of the Constitution of the Russian Federation. Decisions of interstate bodies adopted on the basis of the provisions of international treaties of the Russian Federation in their interpretation, contrary to the Constitution of the Russian Federation, shall not be enforced in the Russian Federation.
What all of the above means. Various international treaties on legal assistance have been signed between Russia and other states. For example, the Convention on the Civil Aspects of International Child Abduction (The Hague, October 25, 1980). This law protects the rights of a foreigner to his child well. But what prevents the mother of the child from referring to the decision of the Russian court, according to which the child is left to the mother. The Family Code in Russia declares the equal rights of men and women in raising a child. However, according to the author, this is only on paper. Some lawyers say that matriarchy is going on in Russia. This means that the Russian court is likely to leave the child to the mother than the father.
If you want to protect your rights, act fast
If a foreigner wishes to return his child back to his country, action must be taken immediately. This is exactly the case when time plays against a foreigner. I will explain. When the child’s mother comes to Russia, she begins various lawsuits against the child’s father. Divorce (which in Russia can be done in one month), determining the place of residence of the child with the mother, collecting child support from the child’s father, complaints about the father to law enforcement agencies and so on. All this is done so that it is more difficult for a father to win a lawsuit on a dispute about a child.
Therefore, it makes no sense to wait. First of all, it is necessary to understand whether the Russian Federation and the country whose father is a citizen have ratified the Convention on the Civil Law Aspects of International Child Abduction (The Hague, October 25, 1980). If so, then you must contact the competent authorities of the country where the father of the child lives, as well as the competent authority in Russia – the Ministry of Science and Higher Education of the Russian Federation.
Within about one or two months, you need to go to court in Russia under the above mentioned Convention. Before applying, it is necessary to collect documents that substantiate the position of the father: the child’s place of birth, the fact of the length of stay, the child’s language, and others. In Russia, specialized courts have been created that are authorized to consider a similar category of disputes. The trial is fast. Priority – urgency of the proceedings.
What if there is no international agreement
In this case, everything is much more complicated. As a rule, a foreign father begins to file various applications with the courts in his country, restrict the mother and child from leaving Russia, initiate criminal proceedings against the mother for the abduction of the child, and so on. But all this only exacerbates the protection of a foreigner in Russia.
The fact is that if there is no international treaty, then your rights will have to be protected in a general manner in Russia. Legislation in Russia establishes the equal rights of Russian citizens and foreign citizens. Even guided by the Family Code of the Russian Federation, it is possible to oblige the mother of the child to provide the child for communication with the father. Moreover, if the child is ten years old, then the court takes into account the opinion of the child. For example, if a child says that he wants to live with his father, the court must take into account this opinion. In judicial practice, this often happened that the child expressed his opinion and the court gave the child to his father.
On the other hand, if it is established in court that the father of the child somehow worsened the situation of the mother, this could negatively affect the civil case. In other words, the court may restrict the father from communicating with the child. For example, due to the fact that there is a threat of the child being taken out of Russia.
In conclusion, we can say the following. When it comes to protecting the rights of a foreigner to a child, it is necessary to proceed from the existence of international treaties between Russia and the country of which the foreigner is a citizen. If international law cannot be applied, then it is necessary to be guided by Russian law.
Dealing with the Covid-19 crisis in Lithuania – concerns for human rights?
Mindaugas Kukaitis
June 1, 2020
I believe that no one has the moral right to say that there is no need to fight epidemics, pandemics and that every saved life is irrelevant to the state, although we must question whether the state has taken reasonable and adequate measures to prevent spread the disease while having all the legal instruments in its hands and while managing financial resources with the right intentions.
Before discussing whether the taken measures are adequate we need to look at the official statistics – average worldwide morbidity is 57 cases per 100 thousand population (fatality rate – 6,77 per cent); Spain – 488 (fatality rate – 11,9 per cent from diagnosed persons); USA – 444; United Kingdom – 356; Belarus – 294; France – 211; Germany – 210; Russia – 180; Turkey – 176; Lithuania – 54 (fatality rate – 3,54 per cent); Poland – 47; Kazakhstan – 30 (fatality rate – 0,59 per cent); Georgia – 18.
There are only few situations when the state can legally restrict the individual rights and freedoms, i.e. by introducing martial law, by introducing a state of emergency and, as has now happened in Lithuania, the introducing a quarantine. Martial law – is a special legal situation established by the Constitution of the Republic of Lithuania and the Law on Military Situation of the Republic of Lithuania, which is introduced to protect the Homeland in case of armed attack or threat, when the sovereignty of the State of Lithuania or the integrity of its territory is threatened, or, if necessary, to fulfil the international obligations of the State of Lithuania in order to ensure the defence of the State and other vital functions of the State during the war. A state of emergency is a special legal regime in a state or a part thereof, which allows to apply temporary restrictions which are established in the Constitution of the Republic of Lithuania and the Law on State of Emergency on the exercise of the rights and freedoms of natural persons and temporary restrictions on the activities of legal persons. Quarantine, on the other hand, is a special regime for the prevention and control of contagious diseases introduced to individual establishments or infected areas when the prevalence of contagious pathogens of unknown origin or cases, outbreaks or epidemics of particularly serious contagious diseases are recorded. The purpose of quarantine is to establish special conditions for work, life, rest, travel, economic and other activities of persons and thereby limit the spread of contagious diseases (the Law on the Prevention and Control of Contagious Diseases of the Republic of Lithuania). If the first two situations clearly give the State the legislative power to restrict human rights and freedoms, then the legal and factual purpose of Quarantine is quite different, during which special conditions for work, life, rest, travel, economic and other activities of persons must be established. Nevertheless, after the introduction of the Quarantine Regime in Lithuania, it can be seen that some actions, decisions and prohibitions did not create special conditions, but simply limited, restricted, complicated parts of the natural human rights enshrined in the Constitution of the Republic of Lithuania (inviolability of the private life of a human; inviolability of the property; inviolability of the home of a human being; prohibition of limitation of judicial protection; prohibition of free movement, free departure from Lithuania; prohibiting or obstructing citizens to choose unarmed to peaceful meetings; opportunities for free choice of work and business, the right to decent, safe and healthy working conditions, fair pay for work and social security; the right to rest and leisure; the right to strike; the right to receive medical aid and services, and etc).
What is worrying?
Firstly, the Quarantine is not equal to a state of emergency or martial law, but the restrictions of Quarantine are greater than those of a state of emergency or war.
Secondly, all decisions on restrictions on human rights and freedoms have been transferred from the level of the Legislators to the level of the Government and even further below to the level of the Minister, although these decisions should be adopted and allowed only by the Parliament of the Republic of Lithuania.
Thirdly, decisions on restrictions are taken as a matter of urgency, without a mechanism for urgently defending violated rights, without an impact assessment, without a debate with the public, without a strategy disclosed to the public in advance, chaotically.
Fourthly, people’s dependence on power is increasing. In the absence of a revealed strategic plan for the application of restrictions, it is impossible to plan, predict, prepare for the actions of the Government, especially prohibitions, constraints, restrictions.
Fifthly, disproportionate prohibitions were applied or attempted to be enacted – it was aimed to legalize the control of data traffic on mobile devices as detailed in the Law on Regulation of Communications, attempted to restrict the constitutional right of medical staff to freely choose workplaces, involuntary treatment was introduced, the movement of the non-sick (healthy people) was limited by the property they own.
Sixthly, there is no prediction of legal certainty, clarity and action in today’s politics. It must be borne in mind that any restriction can be both a medicine and a poison with irreversible consequences.
What needs to change?
It is necessary to start with clear strategic plans on how to deal with the epidemic, when, what, how and under what conditions restrictive measures will be applied and how and when they will be lifted. Restrictions must be adequate, proportionate, timely and professionally justified.
The Lithuanian Bar Association has taken active steps to provide criticism and our own expert assessment of possible human rights violations in the legislation.
Representatives of the State did not assess the threat of the virus before its arrival, but the people have underestimated the increase in States‘ power at the expense of human rights. Government must serve the people, not the other way around. The minimum thing we need to do immediately is to return our free thoughts to the thoughts of the former free man and to defend the fundamental principles of human rights.
Access to Justice in Covid-19 Pandemic Times (introduction to discussion)
Ph. D. Piotr Chrzczonowicz
May 23, 2020
A discussion concerning main identified fields of risk to existing (and preferred) standards in relation to the access to justice should be preceded by some reflections of a general nature.
- Access to justice must be treated as a basic principle of the rule of law (pandemic situation could be a temptation for authorities to soften this principle, to treat it in an instrumental way)
Access to justice is, in a country based on the rule of law, a general and collective procedural safeguard for anyone seeking justice, including a number of specific procedural guarantees, which are based on human rights protection standards expressed in international, EU and domestic law. This safeguard is available to every individual as well as every specific groups of persons in an equal and non-discriminatory manner. It is provided by a variety of legal and institutional solutions (e.g. exemption from legal costs, access to professional legal assistance – legal aid, right to information, right to interpretation and translation) [1] [2].
- A lack of true respect for neuralgic civil human rights (in the sphere of justice) means a lack of access to justice (pandemic situation caused that the access to justice had been troubled and limited in some terms)
There is no real access to justice if, in the normative or practical sphere, an adequate level of respect for human rights – individual or group rights – is not ensured (not achieved) by public authorities. ‘An adequate level of respect for human rights’ means the existence of legal regulations of a good quality, honest conduct of state bodies – investigative and judicial bodies in relation to humans involved in justice system (for instance, proper, scrupulous performance of their duties and tasks, delivering a reliable information about rights of persons facing justice, etc.). Also, there is no real access to justice without effective functioning of the system of aid institutions organized or supported by state authorities (like points of free legal aid for people, institutions providing specific assistance to victims of crime)[3].
- #Stay at home (and possibly suffer from domestic violence) – the influence of the COVID-19 pandemics on the development of domestic violence phenomenon is observed. Weaknesses of access to justice concerning domestic violence matters in times of pandemics are observed too.
Domestic violence certainly isn’t a new phenomenon but it provides new challenges in the context of a current pandemic and so-called lockdown restrictions [4] [5] [6]. In Poland, the implementation of the slogan ‘#stay at home’ (as a part of the prophylactic, anti-COVID-19 campaign) has resulted, among others, in deepening of the problem of domestic violence [7]. New outbreaks of domestic violence have been observed. And there, where violence has been occurred earlier, this phenomenon turned to be more intensive [8]. Victims of domestic violence have lost many possibilities of legal and factual actions [9]. Due to restrictions on the work of courts, the previously initiated proceedings for eviction of domestic tyrants (civil ones) have slowed down. On the other side, some new legal instruments to help victims of domestic violence have been created (in Poland, new anti-violence law was passed some weeks ago, on the 30th of April, 2020). This law enables the application of the instant separation of violence offenders from their victims (quicker procedures, more assistance and protection to victims) [10]. But, of course, this is the regulation – another issue is the practice (which quality and effectiveness largely depend on criminal policy priorities specified by proper bodies of the state).
- COVID-19 pandemic has become a source of serious challenges facing justice systems and justice-involved people (in domestic, transnational and international dimensions)
The COVID-19 pandemic situation, which is, in fact, sudden and unprecedented, has become a source of specific, serious challenges for justice systems in every rule of law country in the world, leading to questions and concerns about the efficiency of their functioning, their ability to maintain the existing relevant standards of the rule of law in different types of proceedings, their ability to deal with new problems, such as the large-scale use of new technologies to carry out their tasks, or their readiness to fulfil health and safety conditions for participants in different types activities which must take the form of direct human contact [11].
The abruptness and dynamics of the pandemic situation have compelled the authorities in many countries to introduce specific legal regulations ‘for pandemic times’. Due to the rush – such regulations aren’t always well-prepared from the technical and factual point of view, sometimes chaotic, difficult to be transparently interpreted and applied in practice, raising objections as to their compliance with the constitutional regulations of states or with the EU or international standards of law expressing the rule of law principle [12] [13].
E-justice and e-access to justice aren’t the distant future but they are not universal and similarly developed in every country. The COVID-19 pandemic in many countries has de facto started a revolutionary change in justice systems, consisting in the need to modernize them closely related to the use of new technologies, including those that facilitate or even make possible for a person the access to justice [14]. Yes, the symptoms of modernization have already been visible in justice systems before, but the current pandemic is a factor which accelerates clearly of the processes that are still ongoing, and their directions open discussions on bringing together the effectiveness of the functioning of the justice system with respecting of previously adopted standards concerning the access to justice by the interested parties (persons).
Globally, in many cases a pandemic shock was for justice like a sand spill in the rotating modes of a working machine. A number of justice systems slowed down, current works of their administration has been divided into those with more priority and those that can wait. This slowdown was made possible formally by special legal regulations of ‘pestilence times’ (e.g. suspension of limitation periods, deletions of dates of court hearings and other procedural activities as well as postponement of these activities). This slowdown occurred in connection with the necessary reorganization of the current functioning of justice systems – i.e. with regarding limitations that affected the current work rhythm of e.g. the police, prosecutors, judges or lawyers, but also their administrations: police stations, public prosecutor’s offices, courts’ administrations and legal offices [15] [16]. Moreover, it was connected with the necessity to adapt the employees of the justice administration and auxiliary apparatus to perform their duties remotely, outside their normal places of work, which was not always possible or entirely effective (not every case file could be kept at home, not every employee is advanced in using devices from the area of new technologies, not always – outside the place of work – it is possible to have access to internal IT systems of the administration of justice with data relevant to the case, also – safe and confidential communication – for instance with a client – is not always possible outside the place of work, outside the office). For example, in Poland, due to a pandemic situation, no courts’ hearings or courts’ open sessions were held for a longer time. The planned dates of hearings and open sessions have been deleted, at first – till the end of April, then, at least, until the end of May. Another example: the prosecutor’s office instructs about the rights of the parties – victims of crime and suspects, but it’s not very easy to exercise some of these rights effectively (e.g. the right to review the files of completed preparatory proceedings became, to a certain degree, not obvious in many public prosecutor’s offices).
Many people have been experienced and they are experiencing by difficulties in undisturbed access to justice, and the pandemic makes these difficulties more serious. Certain standards in this area, created in ‘normal’ times (for ‘normal’ times), do exist, but the pandemic shock has made that there emerged troubles to apply them. It is not always easy to obtain the assistance of an emergency lawyer in the procedure of so-called ex officio legal aid. The contact of a person deprived of his/her liberty (being in pre-trial detention, being a prisoner) with his/her lawyer has been subjected to restrictive conditions which may pose a threat not only to the value which is a freedom of contact, but also to the value which is a confidentiality of communication between a lawyer and a client (i.e. legal privilege) [17]. The access to a lawyer of a person in detention may be formally complicated. To exemplify it, in Poland, the Prison Service requires a certificate of health from a lawyer who wants to meet his/her client in a prison [18]. By the way, the increase in the use of forms of remote communication between the lawyer and his/her client has boosted a risk of violating the secrecy of such communication by state authorities willing to apply surveillance methods and instruments. There have appeared also some quite new challenges, such as the access to justice for specific subjects – coronavirus-infected persons (suspects, defendants, victims or other interested persons). For example, in Toruń, a suspect infected by coronavirus was interrogated through a videoconferencing system with devices installed in a public transport bus rented for this purpose from city public transport enterprise (interrogation was without the participation of a lawyer and it was linked to the proceedings concerning the issue of pre-trial detention).
The progressive ‘technologicalisation’ of access to justice may mean that the difficulties of such access will affect technologically excluded persons, who will be required – without any alternative in this respect – to use new technologies (e.g. sending procedural letters in their matters via e-mail) [19].
It appears that the exiting and required standards of access to justice often ‘hamper’ activities considered to be effective in preventing the spread of COVID-19.
In COVID-19 pandemic times, new technologies in access to justice seem to be not only comfortable, but also necessary. Institutions in the sphere of justice system are concrete places, but concrete places are less important things than concrete services which are supplied to people by such institutions. Mentioned services create justice and this is exactly what society needs and expects [20]. Of course, the application of new technologies opening justice in various situations cannot be chaotic and it needs proper, clear legal frames (if such frames haven’t been established yet). A usage of new, modern technologies to ensure well-functioning and flexibility of justice systems should be safe. Technological infrastructure, recommended devices and communication channels must allow to protect different types of data during the distant contact with representatives of investigative and judicial bodies. For instance, there arise questions on subjects (institutions) responsible for processing of plenty of data connected with the access to justice, how this processing will be controlled and who will be entitled to get the access to such data. Another question is on the quality of ‘shields’ giving effective security from cyberattacks and from harmful consequences due to such attacks.
- Access to justice – a new face of the procedural safeguard in pandemic times (some final reflections and postulates)
- Legal and practical solutions in the sphere of access to justice safeguard, prepared for pandemic times, should be compatible with standards of the rule of law and this compatibility should be monitored.
- Standards of access to justice should be equal for everyone who looks for it (i.e. for free people, people being in pre-trial detention, prisoners). It seems to be obvious in theory but, however, it isn’t obvious in practice.
- People seeking justice in institutions which demand from them a distant contact should have right to access to technological devices and communication technologies ensuring them safe forms of contact (protecting their privacy, personal data, contents of sending documents).
- New face of access to justice means also a new face of functioning of many lawyers in their professional life (contacts with clients, contacts with investigative and judicial bodies, new challenges in processing and protection of various types of data). Many lawyers will need advanced education in new technologies to do their work (routine professional activities). Safe professional relations with coronavirus infected clients (even if the infection or illness is potential) seem to be a special challenge.
- Domestic violence during pandemic seems to be a growing problem. Victims of domestic violence – a special category of victims (i.e. victims which can be characterized as vulnerable and sensitive ones) will need more external assistance, among others in effective access to justice (including contact with a lawyer, launching of criminal or civil proceedings, representation or support in such proceedings). In some countries (at least) new legal regulations establishing help instruments addressing to victims will be needed. However the law – important and necessary – should be completed by effective practice in its application.
- Access to justice demanding more new technologies and means of distant communication could be – on the one hand – easier but – on the other hand – not for all interested people (not effective access to access to justice for technologically excluded and marginalized persons).
- Access to justice, demanding more new technologies and means of distant communication, could be a value more exposed to surveillance from state services as well as to dangers of cyberattacks committed by cybercriminals.
The above-mentioned thoughts need to be discussed. Such discussion, I hope, will bring us a bit closer to answer the question on the value of access to justice in current pandemic times. Will this new and unprecedented situation make for people the justice closer or more distant?
References:
[1] Francesco Francioni (ed.), Access to Justice as a Human Right, Oxford University Press, Oxford – New York 2007 [passim].
[2] Handbook on European law relating to access to justice, European Union Agency for Fundamental Rights and Council of Europe, Publications Office od the European Union, Luxembourg 2016, pp. 15 – 22.
[3] V. Lima, M. Gomez, Access to Justice: Promoting the Legal System as a Human Right [in:] W. Leal Filho (ed.), Encyclopedia of the UN Sustainable Development Goals, Springer Publishing 2020, pp. 1 – 2, 3 – 4, 7 – 8.
[4] A. Taub, A New Covid-19 Crisis: Domestic Abuse Rises Worldwide. Movement restrictions aimed to stop the spread of the coronavirus may be making violence in homes more frequent, more severe and more dangerous, The New York Times, April 6 (updated: April 14), 2020, https://www.nytimes.com/2020/04/06/world/coronavirus-domestic-violence.html [17.05.2020].
[5] M. Godin, As Cities Around the World Go on Lockdown, Victims of Domestic Violence Look for a Way Out, Time, March 18, 2020, https://time.com/5803887/coronavirus-domestic-violence-victims/ [17.05.2020].
[6] C. Bettinger-Lopez, A. Bro, A Double Pandemic: Domestic Violence in the Age of COVID-19, Council of Foreign Relations, May 13, 2020, https://www.cfr.org/in-brief/double-pandemic-domestic-violence-age-covid-19 [17.05.2020].
[7] A. Wądołowska, Locked down with a violent partner: domestic violence soars in Poland during coronavirus pandemic, NFP [Notes from Poland], April 13, 2020, https://notesfrompoland.com/2020/04/13/locked-down-with-a-violent-partner-domestic-violence-soars-in-poland-during-coronavirus-pandemic/ [18.05.2020].
[8] I. Le Page, Fears of domestic violence rise as millions confined over virus, CTV News, March 28, 2020, https://www.ctvnews.ca/health/coronavirus/fears-of-domestic-violence-rise-as-millions-confined-over-virus-1.4872437 [18.05.2020].
[9] M. Nightingale, J. Hofman, S. Grand-Clement, Resources for Covid-19 abuse victims ‘insufficient’, EUobserver, London, 8 May, 2020, https://euobserver.com/opinion/148294 [17.05.2020].
[10] Sprawcy przemocy domowej będą natychmiast izolowani. Sejm przyjął ustawę antyprzemocową, Gazeta Prawna.pl, 30.04.2020, https://prawo.gazetaprawna.pl/artykuly/1473817,sprawcy-przemocy-domowej-beda-natychmiast-izolowani-sejm-przyjal-ustawe-antyprzemocowa.html [18.05.2020].
[11] See, for instance, documents gathered by CCBE and available at: https://www.ccbe.eu/actions/covid-19/#c3165 [18.05.2020].
[12] The impact of Covid-19 on human rights & the rule of law – Council of Europe standards (part 1 of 2), webinar, https://www.youtube.com/watch?v=ZsehViuAWHE&feature=youtu.be [18.05.2020].
[13] The impact of Covid-19 on human rights & the rule of law – Council of Europe standards (part 2 of 2), webinar, https://www.youtube.com/watch?v=ac3-t99bLyc [18.05.2020].
[14] R. Kuybida, How COVID-19 Forces Courts to Operate Creatively Under New Circumstances, Reanimation Package of Reforms, https://rpr.org.ua/en/news/how-covid-19-forces-courts-to-operate-creatively-under-new-circumstances/ [18.05.2020].
[15] Impact of the COVID-19 virus on the justice field, European e-justice, https://e-justice.europa.eu/content_impact_of_the_covid19_virus_on_the_justice_field-37147-en.do [18.05.2020].
[16] Management of the judiciary – compilation of comments and comments by country, Council of Europe, European Commission for the Efficiency of Justice (CEPEJ), https://www.coe.int/en/web/cepej/compilation-comments#Poland [18.05.2020].
[17] See, for instance: E. R. Bailey, Attorney-client privilege should not stop at the prison gate, Buckley LLP, Lexology, https://www.lexology.com/library/detail.aspx?g=788285e3-71ac-4af4-abba-36c6cefb3c8d [18.05.2020].
[18] Koronawirus: Sytuacja w więzieniach budzi poważne obawy. RPO do Służby Więziennej, Rzecznik Praw Obywatelskich, https://www.rpo.gov.pl/pl/content/koronawirus-rpo-sytuacja-w-wiezieniach-budzi-powazne-obawy [17.05.2020].
[19] R. Smith, Technology and Access to Justice: a help or hindrance?, March 20, 2019, Law technology and Access to Justice, https://law-tech-a2j.org/digital-strategy/technology-and-access-to-justice-a-help-or-hindrance/ [17.05.2020].
[20] J. Richards, How will the justice system withstand the coronavirus pandemic? When courts close more fully, consequences will reach every corner of society, Prospect, March 18, 2020, https://www.prospectmagazine.co.uk/politics/how-will-the-justice-system-withstand-the-coronavirus-pandemic-covid-19-outbreak-courts-democracy-law [18.05.2020].
Access to Justice in Covid-19 Pandemic Times in Spain
Juan Nunez
May 18, 2020
The terrible Covid-19 pandemic in which we are involved, not only in Spain, but throughout the world, will have relevant legal consequences, as we already all know. The inevitable economic crisis derived from this pandemic will affect several legal aspects and principles.
After my opinion, the most affected will be
- the general theory of contracts,
- the insolvency situations and
- the labor relationships
Referring to the theory of contracts, a lot of legal relationships will be affected because it will very difficult for one of the parties to continue complying with an agreement signed under circumstances having radically changed.
A huge number of contracts will be under this situation.
Without forgetting the principle of “pacta sunt servanda” (agreements have to be fulfilled) legal remedies will have to fit the principles of “force majeure” and “rebus sic stantibus” (restoration of an agreement that has turned unbalanced by unpredictable events), to settle these issues.
On the other hand, and due to this situation, a lot of companies and individual entrepreneurs will come into unavoidable financial difficulties. For these cases, our law has rapidly react retarding any deadline to lodge any proceeding of insolvency until the end of the year, to allow the entrepreneurs to try to recover their business.
Finally, all this situation affects employment; thousands of people losing their work and claiming their rights. In spite of the measures that have been implemented to suspend or reduce work, a lot of business will not be able to resist. Courts, as all other activities that can concentrate lot of people, has been almost entirely stopped, and only urgent matters are to be attended. Access to justice has been organized for when the state of alarm will be over, and some measures have been adopted to manage with all the conflicts that are arising during this period without normal working Courts.
The measures to organize the Courts in order to confront the effects of Covid–19 are about (1) procedural measures, (2) insolvency measures and (3) technological measures.
- The goal of the procedural measures is to discharge concentration of lawsuits to be filed. The most polemic procedural measure implied is to active the period between 11 and 31 August, while August has been always Court holidays. Additionally, all the time schedules and deadlines of the different matters and procedures that may have been suspended will, either re-start entirely again, or be enlarged considerably, to avoid the collapse, and to allow to attend, until the rest of the year 2020, some priority matters, like:
-
- Issues with minors
- Conflicts on stoppage of mortgages or rentals.
- Conflicts on public aids or subsides related to pandemic.
- Conflicts on labor relations, due to pandemic measures.
2. On insolvency measures, the law wants to give an especially long time bar period to organize again and to refloat the business until end of the year 2020. During this lapse of time, no insolvency claims from creditors will be accepted, giving time to the debtor to file his own insolvency proceedings.A special time bar of one year has been adopted to allow debtors to negotiate once again their payment conventions.During one year after termination of the estate of alarm, only urgent issues will be solved.
3. Finally, the law implies technological measures to reduce presence organizing hearings on-line, and reducing present formalities as much as possible.
This means the implementation of technological tools at any court, which is still a pending challenge; al least, it will be a benefit that will remain. In general, rules have been implemented to refrain the effect of the wave of proceedings, in the confidence to speed the proceedings, and to avoid physical contact.
However, the number of proceedings will be extremely high; even if at this moment the tribunals only work in urgent matters, the filing of lawsuits is possible; some 2.500 proceedings have been already filed at Barcelona’s Courts.
And these new proceedings, and the new ones during and after the state of alarm, arrive to a judicial system which is already collapsed. Nowadays, before the pandemic, hearings in some tribunals were already being appointed over six to nine months, or even more.
It is often said that late justice is not justice, and therefore, the access to justice will be not satisfactory.
Some rules implemented for the pandemic effects, oblige consumers and providers of services and goods to try to reach agreements for adaptation of their relationships to the situation for 60 days before resolving, when the agreement could or may not be fulfilled properly (for instance, closed fitness clubs, closed learning centers, concerted weddings and celebrations, lack of deliveries). It is clear that countless lawsuits will be filed because of contractual relationships, in which the parties have not reached an agreement.
An already collapsed justice cannot afford this new situation, and it is time for intensively promote mediation and arbitration.
We, lawyers, have to lead the way to provide justice by promoting agreements out of courts between the parts in conflicts. It is clearly time now to let mediation and arbitration display their advantages. It will be the only way, in most of the cases, to obtain not only justice, but satisfactory results for the parties.
We have to keep in mind, however, that these ADR means should be a choice and not a necessity, since the citizen shall have the right of access to justice; of course, we are confronted to an extraordinary and unpredictable situation, but the citizen will suffer more than if the system were not already so overloaded. This happens when justice is not a priority for the governors.
The situation of criminal proceedings is quite different; of course, all these rules do not affect to proceedings in which fundamental rights could be affected. For those files, courts have maintained their activity.Procedures of habeas corpus, incidents with prison conditions and permissions, gender violence, and all non-delayable issues are treated.
However, there are some issues affecting substantial rights, like the provision implemented by the Royal decree declaring the state of alarm, by suspending the deadline of prescription of all acting’s and rights, without further clarification: the problem is that, since no more clarification was made, we do not know if this suspension means an enlargement of the statute of limitation of delicts. In fact, it should not, since the access of justice during that time is possible for urgent matters, and because this interpretation would affect constitutional rights, but the debate is open.
A new Code of Conduct for the Spanish advocacy
Ph. D. Nielson Sánchez Stewart
May 14, 2020
On May 9th, 2019, and after more than three years of work, the General Council of Spanish Lawyers, Consejo General de la Abogacía Española (CGAE), the body that coordinates the activity of the 83 Spanish Bar Associations, approved a new Code of Conduct to take effect nationwide.
It was a necessary step to update the regulation of the Legal Profession. That the profession is constantly undergoing profound changes is not a phenomenon that goes unnoticed and the current changes are perhaps the most important ones in its long history. The considerable increase in the number of practitioners, the sometimes insufficient preparation of those who begin their practice, the increase in the proportion of women who embrace the legal profession, the elimination of the barriers that traditionally existed to prevent or hinder the practice outside the borders are causes, among other factors, of this transformation. These changes and the convergence of counselling and advocacy activities with other professionals of different views, backgrounds and training determined the need to carry out a profound revision of the norms that regulate the profession, norms that for years remained unchanged and were transmitted from generation to generation in the privacy of law firms.
The express process of formulation of the regulation began several decades ago. The former Assembly of Deans of the Council in a session held on May 28th and 29th, 1987 approved the so-called „Deontological Standards of Spanish Law”. In another Assembly of Deans of June 29th, 1995, some modifications were introduced and the body was called the „Code of Deontological Conduct”, the first of the Spanish Legal Profession.
The codification of the so-called „standards of behaviour” has been debated, doubting their legitimacy, arguing that they violate the necessary independence and have limited effectiveness. In formulating these criticisms, it is assumed that they are not authentic legal norms, but rather moral or social recommendations. This is not true and has already been declared by the Constitutional Court, which has classified them as strictly legal. It is true that they have an ethical or moral inspiration, but that is common to other legal provisions, such as the Penal Code, without going any further.
The organization of the profession has changed and it has become necessary to adapt the rules of behaviour to these changes. Many of the 1987 norms were becoming prematurely obsolete and in 2001 a new General Statute of the Spanish Legal Profession was approved, which repealed the one from 1982. Many venerable institutions disappeared upon the introduction of the rule of law and the new conception of a Lawyer, not only as an auxiliary to justice, but as one of its main actors and its inclusion in society to provide a service of public interest and under free competition.
In 2002, a Code of Conduct was approved, replacing that of 1987, which has been in force until now. However, in the almost twenty years that have elapsed, there was a need to adapt it to the times.
The CCBE, constituted as the highest representative body of the Legal Profession before the institutions of the European Union, had approved a „Code of Ethics” at its plenary session in Strasbourg on October 28th, 1988, modified at a session held in Lyon (France) on November 28th, 1998. The purpose of this Code was to establish rules of conduct in cross-border professional practice. Said Code was „assumed” by the CGAE. In accordance with the provisions of paragraph 1.3 of the Code, its objectives were to define „common rules applicable to all Lawyers of the European Union and the European Economic Area in their cross-border activity, whichever the Bar Association they belong to”.
This Code – although in force in Spain – upon the assumption by the General Council has a restricted scope of application – ratione materia is the expression it uses – to cross-border activities.
The codification process has not finalised yet and today a phenomenon is underway that is inverse to the trend of localization in infra-national areas of ethics. In the European Union, work is currently being done on the drafting of common Codes of Ethics that will be applicable, at least, in countries whose legal systems come from a common root, notably Italy, France, Portugal and Spain. This good will and desire should be used not only to formulate general principles that are already sufficiently set, but also to try to conjoin new ones taking advantage of the conjunction of international experiences that can serve as basis for comparison as a study method.
In parallel, the CCBE periodically reviews the rules applicable to cross-border practice, which, while still exceptional, will inexorably increase as the European Union and the European Economic Area expand and international traffic increases.
Attempts to create a single Code of Ethics applicable, ideally, to all Lawyers in the world or at least to all Lawyers practicing within the Union, face the natural scruples of countries that have maintained traditional criteria, who have resisted their revision to bring them to a common heritage. A good example turns out to be the professional secret that in some countries, Spain among them, has a public origin closely linked to the special function that the Lawyer develops in society both in the defence aspect, as guarantor of that fundamental right, and in the variant of legal adviser whose activity is part of the right to confidentiality. On the contrary, in other countries, professional secrecy is nothing more than an obligation that arises from the specialties determined by the convention, contract or agreement that discipline the relationship between Lawyer and client. Another example is the remuneration system, with acceptance or rejection of the quota litis agreement, the division of fees and payments for attracting customers. Despite this resistance, it is inevitable that in a globalized world, the application of general solutions will be sought, solving in an intelligent and generous way the difficulties that occur today. Thus, the confidentiality of correspondence between Lawyers, which in some countries is absolute, as in Spain, in others only applies if that attribute is referred to in its text, as occurs in the United Kingdom, and in others, such as Italy, it also applies, unless otherwise indicated in the correspondence. In these times we live in, when correspondence circulates daily outside borders, such a paradoxical situation cannot last long.
The synergies of the Lawyers of the surrounding countries must be used to jointly advance in the formulation of updated norms and not only insist on the formulation of already accepted principles.
In 2016 work began on this new Code of Conduct by the Deontology Commission of the General Council of Spanish Lawyers. The alternative of approving a totally new text or, on the contrary, introducing certain modifications to the current one was considered: this second possibility was chosen so as not to lose the valuable collection of administrative precedents and judicial decisions.
In the elaboration of the new Code, the then current General Statute of the Spanish Legal Profession and the project that was also approved by the Council pending ratification by the authorities, have been taken into account. Although this project is not yet a standard since the concurrence of the administration is required, it does reflect the feeling of the profession and it is hoped that once the difficulties experienced in Spain in recent years have been overcome, it will not take too long to be finally approved.
The existence of the Code of Conduct – as long as they do not restrict competition and is established for the benefit of service consumers and society in general – is not objectionable to competition authorities. This has been stated by the former Competition Court in its famous „Report on the free exercise of professions, Proposal to adapt the regulations on collegiate professions to the free competition regime in force in Spain in June 1992” that gave rise to an important modification in the Law of Professional Institutions.
Already in May 2003, the European Commission announced the preparation of a proposal for a Directive on services in the internal market that would be released before the end of that year. Paragraph 39 of the proposed Directive encourages Member States to adopt uniform codes of conduct. This Directive is known as the Bolkestein Directive which included an important phrase: “Member States, in collaboration with the Commission, should be expected to encourage stakeholders to draw up codes of conduct at Community level, especially with the aim of promoting quality of services taking into account the peculiarities of each profession. The codes of conduct must be in accordance with Community Law, and especially with Competition Law. They cannot be contrary to the binding legal provisions on ethics and professional conduct that are in force in the Member States.”
The evolution of standards of conduct will continue because it will be necessary to adapt them to the new times that are characterized by a different legal profession than the traditional one. Extrajudicial and preventive activity is more and more important, the scope of work is constantly expanding and encompasses territories regulated not only by different laws but by different ethical standards; the conflict between individuals has ceased to be in many cases the fundamental field of work since today public administrations have invaded everything. Finally, relations with other professionals who carry out activities similar and sometimes identical to those carried out by the Legal Profession are becoming more frequent every day, the preferential dedication of which is tax law, urban law and labour law. The practice of the profession has changed in the sense that each day it is more common that one no longer configures oneself as an independent professional, but rather as an employee for another office, for a company or for a private individual who is not from the profession. In this way, one will become a lawyer for a single client. At the same time, it is increasingly observed that organizations of collective representation or with multiple interests provide through a professional, legal advice, consumer groups, unions, public bodies. The relationship with these third parties who are not exactly clients, but rather members of the group for which they provide services, must be subject to ethical regulations.
On the other hand, the areas of legal advice, which are common to the legal profession and to other professionals, have determined the existence of so-called multidisciplinary or multiprofessional law firms that should be subject to specific regulation.
The deontological norm – legal as it has already been insisted – is of obligatory compliance and its violation brings with it a sanction. There is no doubt about this in Spain. There are, however, some peculiarities that characterize it and which have been the subject of judicial debate and analysis by the Courts.
There is no law that regulates the legal profession in our country. The rules are spread across many scattered texts, some of which do not have a category of law. The one that regulates the Bar Associations does not contain a table of misdemeanours or a list of sanctions, but attributes to these bodies in their territorial scope the function of: „… practicing disciplinary authority in the professional and collegiate order”
The violation of the principle of legality of the ethical standards contained in the Codes has therefore been discussed, because they would not in themselves define typical conducts and because they do not meet the requirements of publication in an official journal. Legality, typicality and publicity, are conditions applicable to the punitive and restrictive norm of rights. It has been said that this lack of publication in an official paper would deprive them of compulsory force and of authentic legal status. The Constitutional Court has indicated that there is a relationship of special abidance of the collegiate with their Bar Association, which is precisely what allows reducing the requirement of reserving strict law. Reduce it only, but not do without it. It is necessary for the sanctioning regime to have a legal basis even if the infractions and sanctions are not defined in detail in the law. It is therefore possible that, due to this special relationship of dependency, assumed by the collegiate when applying for admission to the profession, that the actions and sanctions are not defined by law as long as the law refers them to a norm of lower rank.
Thus, the universally accepted principle of nullum crime nulla poena sine lege is respected today. The so-called typicality, the requirement that the conduct be perfectly defined in the norm, is satisfied in Spain with the so-called „predictability” of the norm in the face of the lex certa requirement, since this requirement is not violated by facts, omissions or punishable conduct „By means of undetermined legal concepts, as long as their concretion is reasonably feasible by virtue of logical, technical or experience criteria and allows foreseeing with sufficient security, the nature and essential characteristics of the behaviours constituting the typified infringement”.
The new Code is not the culmination of ideal standards to regulate the profession. It is the updating of the needs to face various current phenomena, such as payment for attracting customers, distribution of fees with third parties outside the profession, the limitations imposed on professional secrecy, the advertising of services, the substitution in performance and relationships that arise between who provided the advice and defence and who takes it over, the second opinion, the obligations to liquidate the funds received and many others.
We have already started work on its update.
The new rules of prevention of money laundering: a challenge for professionals
Juan Núñez
May 7, 2020
The Directive 2015/849 of the European Union to prevent money laundering means a series of new obligations to prevent money laundering, imposed on professionals.
All professionals are (or should be) aware of that, training and organizing our work to fulfill these obligations. But I think it is important, as well, that customers also understand our information requirements and collaborate, since it is a task that is imposed to us.
The Directive 2015/849 of the European Union to prevent money laundering, which shall be transposed to all EU Estates, represents a considerable increase in the obligations of the professionals with regard to the identification and monitoring of operations in which these professionals intervene, at any extent.
These new obligations involve maintaining a vigilant attitude regarding the knowledge of customers and their operations. This supposes a considerable overload, uncomfortable for both the professional and the client, who is focused on providing data on their economic sphere. This function, which banks are already deploying very incisively, is sometimes exaggeratedly extended to any professional, doubling or tripling the control already carried out in other instances, through which it has been previously passed.
In this matter, as it is so many others, Administrations transfer their responsibility to the individuals, multiplying, in addition, the possible liable subjects, in case of slippage. The Directive requires us, then, a series of obligations that we summarize below, because we understand that it is important that the individuals required for information know that it is not an extreme zeal, but an imposed obligation:
The Directive obliges us to formally identify our clients. This means that, if the client is a natural person, we must ask them for their TIN (N.I.F) if they are a Spanish national, or their passport or identity card issued by the authorities of the country of origin (foreigners from EU/EEA Member States), or their passport, residence card or foreigner’s identity card in the case of foreigners from non-EU or non-EEA countries. If our client is a legal person, we must identify it by means of registry reports and a documentary review of the identity of anyone acting on behalf of said legal person and all those participating therein.
The Directive obliges us to identify the beneficial owner of the business or transaction, as well as to take measures to verify said identity. In other words, we have to identify the person on whose behalf our clients are acting prior to accepting the professional assignment, with the signing a sworn statement by the client or the natural person with a power of attorney to represent the legal person.
The Directive obliges us to acquaint ourselves with the purpose and intended nature of the business relationship. In other words, we need to have specific knowledge of our client’s professional and/or business activities, which must be checked by reviewing any supporting documentation it has provided, or by obtaining information from reliable independent sources.
The Directive obliges us to perform ongoing monitoring of our business relationship with our clients. This entails retaining the data we hold updated to ensure they are in line with current realities, despite the passage of time. All information is therefore kept up to date.
How Does the Legal Profession in China Respond to Covid-19？
Sharon Shi
May 5, 2020
As the Covid-19 pandemic touches all of us, the legal profession in China has been dealing with the crisis actively. Lawyers, law firms and bar associations are all contributing what they can. This article illustrates a general picture of how we respond to the crisis.
I. Working with clients
During a crisis like Covid-19, clients tend to seek their peace of mind from professionals such as lawyers, consultants, etc. What clients may not realise is that law firms can easily fall into operational difficulty like their clients. This means that to maintain the service quality and efficiency may cost extra time, money and efforts.
Generally, more patience and empathy with clients are required. For example, many of our manufacturing clients were forced to face the consequences of late resumption of work, hence a possible breach of contract. Panic and agitation follow when clients think they could do nothing but wait. We spent lots of time explaining to them in detail how delayed delivery or performance might not necessary be the end of the world, there are various tools that might help them. Another major difficulty all of us dealt with was analysing the conditions for resumption and work, and the procedures the clients should follow to report and apply for resumption. As different provinces, cities even districts all have different measures and requirements, the policies are also changing constantly, to give clients clear and accurate guidance is a huge challenge.
Regarding the areas of law that we focus on during the outbreak, one of the key areas is labour law. At the early stage of the outbreak, we helped clients better implement their quarantine measures, and provided compliance services regarding salaries adjustments, shift rotation, shorter working hours, etc. As the outbreak develops, inevitably some clients had to resort to lay-off. Chinese labour contract law is very protective of employees, during the outbreak, the government issued various guidance regarding laying off employees, the general principles are to discourage termination so as to reduce social instability, but to provide delayed social security payment or subsidies for professional training etc. in hope that these will help employers to keep the work force with a reduced salary pay. We provided our clients with mixed options, such as economic layoff, dismissing company officers who misappropriated the property of the company, or mutual agreed termination.
We have also been focusing on cybersecurity and personal information processing during the outbreak. More clients and customers are working from home, cybersecurity became very important. We helped our clients identify data exposure risks while their employees worked outside office and keep them vigilant with potential data leak accidents. After the lockdown ended, and when people start entering office buildings to resume work, the collection of personal information at every entry of building becomes the new concern – for example, who could collect and for what purposes? How such data will be handled, stored, or disposed?
II. Actively embrace the new features of the legal industry
Driven by the epidemic, judicial authorities and administrative departments in China have taken a leap in digital transformation, which has consequently changed how lawyers work. Specifically，local governments have launched online government service platforms. For example, via the “Integrated Online Platform” in Shanghai, it is now possible for people to handle matters such as applying for administrative license, completely online. Local courts have launched online filing, online court sessions and other services to make remote litigation possible. This helps lawyers not only to save time and travel costs, but also to break through the original geographical limitation and reduce the impact caused by the epidemic and travel restriction.
The epidemic has accelerated law firms’ demand for online collaborative and virtual office. During the epidemic, lawyers work through WeChat, E-mail, online meeting rooms and other forms of remote communication tools. For law firms, while providing the convenience of remote office and remote trial for lawyers, they can also take advantage to increase business opportunities and save office costs through online legal services.
Another feature is that, once lawyers realised the convenience of online meeting room and conference tools, the number of webinars has skyrocketed. Internal training for law firms through webinar is adopted while lawyers work from home and while business is not busy. It brings lawyers closer, and it keeps everyone occupied. Clients are invited, as part of the legal service, which are well appreciated by the clients.
III. Take social responsibilities during the epidemic
During the outbreak of the epidemic, All China Lawyers Association, local associations of lawyers and their members have been actively doing their part in the prevention and control of the spread of the virus. Take Shanghai Bar Association as an example, as of April 7, according to incomplete statistics, the legal sector in Shanghai had donated more than 20 million and 250 thousand yuan in total in cash; and donated more than 30 million yuan of medical protective supplies and other goods and materials to Wuhan and other cities in need of such goods. Furthermore, lawyers in Shanghai published more than 1,300 professional articles related to the legal issues related to the epidemic prevention and control. Besides, to help relevant government departments better formulate corresponding policies and measures on the epidemic, Shanghai lawyers submitted more than 100 proposals based on the result of a wide-range client survey and research.
As for law firms, take AllBright Law Offices as an example: we launched “AllBright Public Fund” for Covid-19 and accept donations of medical supplies through various channels. We purchased in total 1.2 million disposable medical gloves, 3,000 medical goggles and other medical supplies to support those at the front line of epidemic prevention and control. We also conducted a series of legal research on current issues under the epidemic and launched special columns. For example, different legal jurisdictions have different regulations or policies on whether the epidemic could be regarded as “force majeure” and thus as a reason for exemption from contractual liabilities. Considering the complexity of the issue, we collaborate with the Belt and Road Committee of Shanghai Bar Association. A series of articles have been issued to the public for reference. Meanwhile, we participated in a specific research launched by Shanghai Municipal Bureau of Justice regarding problems or difficulties that foreign enterprises have encountered during the resumption of work.
In times of changes and uncertainty, it is only natural to panic. Although in China the worst is over and things are getting back to normal, the impact of the global pandemic on economy and legal profession has just started. We found that many of the cross-border M&A and commercial collaboration projects are delayed or canceled. However, due to the disturbance of the outbreak, disputes increased and lots of business went bust, so we are facing increasing litigation and arbitration cases, as well as a busy bankruptcy and restructuring business. We hope to report more in the near future with more new development from China. If anyone is particular interested in any aspects, please feel free to contact me.
The right to a fair trial in sports disputes
Małgorzata Miszewska
March 14, 2020
The impartiality of the judiciary is particularly important in resolving sports disputes. Increasingly, athletes and other persons related to the world of sport submit complaints to the European Court of Human Rights invoking violations of Article 6 § 1 of the European Convention on Human Rights. This article guarantees the right to a fair trial and this is to be achieved, among others, by an independent and impartial court. The sports justice system is traditionally not exercised by a common judicial authority. These disputes are usually settled by sports federations. This increasingly raises doubts as to the impartiality of the bodies hearing a case. In recent months, the ECtHR has heard two high-profile cases in which applicants have alleged violations of the principle of judicial independence and impartiality.
Platini v. Switzerland
On 5 March 2020, the European Court of Human Rights issued a decision in the case of Platini v. Switzerland. The complaint was brought by Michel Platini, former Vice-President of FIFA and President of UEFA. The FIFA Ethics Committee, finding a violation of the FIFA Code of Ethics in connection with the alleged extortion of 2 million Swiss francs, banned Platini from pursuing professional football activities at national and international level and imposed a fine.
Platini appealed to the Court of Arbitration for Sport in Lausanne (CAS). He unsuccessfully alleged violation by FIFA bodies of Article 6 § 1 of the Convention.
The next step was to appeal to the Swiss Federal Court, where Platini unsuccessfully brought the petition for annulment of the CAS’s judgment.
In his complaint to the ECtHR, Platini argued that the proceedings before the FIFA Disciplinary Board and the CAS did not meet the requirements of a fair trial protected by Article 6 § 1 of the Convention. In addition, he also claimed violation of Article 7 § 1 of the Convention (no punishment without legal basis) and Article 8 of the Convention (right to respect for private and family life). The allegation of violation of Article 6 § 1 of the Convention was based on the dependence of FIFA Ethics Committee and FIFA Appeal Committee on FIFA executive bodies and financing of the CAS by FIFA.
The ECtHR rejected the complaint, indicating that the case had been examined correctly. It found that there had been no violation of Article 6 § 1 of the Convention with regard to the alleged lack of independence and impartiality. The Court found that the decisions issued in the case were justified, pursuing not only a repressive purpose, but also restoring the reputation of football and FIFA.
Ali Rıza and others v. Turkey
Another judgment of the European Court of Human Rights deserving attention is the judgment of 28 January 2020 in case of Ali Rıza and others v. Turkey. The ECtHR ruled in favor of Ali Rıza founding a violation of Article 6 § 1 of the European Convention on Human Rights.
The case was related to the proceedings before the Arbitration Committee of the Turkish Football Federation, which obliged Ömer Kerim Ali Rız, a former Premier League player, to pay €60,000 to the former club for the wrongful termination of contract. The player brought an unsuccessful appeal to the Court of Arbitration for Sport in Lausanne, and then to the Swiss Federal Court.
The grounds of the complaint to the ECtHR were that that the Arbitration Committee of the Turkish Football Federation could not be regarded as independent and impartial court within the meaning of Article 6 § 1 of the Convention. The applicants stressed that Turkish law did not provide for the possibility of challenging a decision made in arbitration proceedings before a common court.
In the judgment issued in the case, the ECtHR stated that the proceedings before the Arbitration Committee lacked solutions to guarantee the full independence of arbitrators and therefore violated the right to a fair trial. The structural links between the arbitrators and the football federation body were emphasized, as well as the exposure of the arbitrators to external pressures that threaten their independence. The ECtHR also highlighted a systemic problem in resolving sports disputes in Turkey that requires reform.
Juan Núñez
October 11, 2019
On 5 September this year, the European Commission published a checklist to provide assistance for European businesses trading with the United Kingdom in the case of a “no-deal” Brexit scenario. It encourages companies to take measures to keep cross-border trade disruption to a minimum and calls on them to prepare for all possible scenarios.
The checklist can be downloaded from the following link: https://ec.europa.eu/info/files/brexit-preparedness-checklist. You can also call Europe’s ECAS helpline with specific inquiries on 00 800 67891011.
Amongst other measures, the Commission has proposed a European Solidarity Fund and a European Globalization Adjustment Fund to provide assistance to those employers and workers most affected by an increasingly likely no-deal Brexit. In addition, the Commission has proposed various technical measures and adjustments to facilitate a smoother transition in the field of the movement of passengers and goods, guaranteeing basic connections, as well as in fisheries and agriculture, with special financial aid. Solutions avoiding a “hard border” between the Republic of Ireland and Northern Ireland are also being studied. If the United Kingdom leaves the Union without agreement, there will be no transitional period, and individuals and companies will automatically lose their equal treatment status. Therefore, the United Kingdom is expected to address at least three issues to mitigate the impact of this: the preservation of the right to free movement of people who have enjoyed it so far, the maintenance of financial commitments, and respect for provisions of the Good Friday peace agreement for Northern Ireland.
AI and Ethics
Chris Rees
May 31, 2019
The below intervention was delivered on AEA-EAL conference „AI Beyond Hype” in Edinburgh on May 31, 2019.
Prof Timo Minssen has discussed a number of ethical issues related to AI in a medical context:
• What happens when AI makes a mistake and things go wrong?
• How existing medical regulations will cope with AI
• The tension between patient data privacy and the need for AI to learn from large scale patient data
• The effect of proprietary systems
• Whether AI systems should have legal personalities
• The effect on employment and the potential for unequal wealth distribution
• Bias and discrimination
As he noted, some, indeed many of these issues have wider ramifications than just the medical field. I shall look at some of the same issues, and one or two others, in a broader, societal context. Most of the ethical issues that arise with the implementation of AI systems are not unique to AI. I recently spoke in a debate at the WCIT in London with Professor Richard Harvey, Gresham Professor of IT and Professor of AI at the University of East Anglia on the motion, “There is no such thing as AI ethics, just ethics”. It became apparent in the debate that there are ethical issues which are specific to AI or which AI renders materially more acute. Today I want to look at the main ethical issues that arise in relation to AI, and reflect on the extent to which they are legal issues too.
I shall discuss six ethical topics:
1. Bias
2. Explainability
3. Harmlessness
4. Responsibility for harm
5. The effect on employment and on society
6. AIs impersonating humans
I shall also discuss the question, Does ethics matter in AI? I shall not talk about the trolley problem, because it is boring, old hat, not a real problem even for automated vehicles and was clearly set out by Thomas Aquinas in the 13th century (the doctrine of Double Effect). Nor shall I discuss the ethics of Artificial General Intelligence because I don’t think it’s going to happen.
1. BIAS
Bias is definitely not unique to AI. AI systems are biased because we are biased. Bias in AI systems arises from two main causes, unwitting bias in the minds of the engineers who design and build the systems, and secondly bias in the data.
The vast majority of these engineers in Europe and the USA are young, white males. Nothing wrong with that perhaps but they may not even be aware that they are designing systems that work really well for white males but significantly less well for black females. Famously a very sharp, young black researcher at the MIT Media Lab called Joy Buolamwini was offended when Google’s facial recognition system identified her as a gorilla, and did not recognise her as a human being until she put on a white mask. So she constructed an experiment with about 300 photos of light skinned males and similar numbers of light skinned females, dark skinned males and dark skinned females. The system was close to 100% accurate with the first set, light-skinned males, in the 90% range for the second and third and an appalling 66% for the last, dark skinned females.
AI systems learn from the datasets they are trained on, so any biases in the training dataset will be “learned” by the AI. Biases will be embedded in the datasets because we are biased, in many ways, some of which we notice, others we may not be aware of. Then they go on learning from datasets they operate on, which themselves will have embedded biases. The larger the dataset, the greater the incidence of bias.
Does this matter? Not in all applications. In machine translation, you are interested in the quality of translation into the target language. Google translate copes well with translating into French, “time flies like an arrow” offering “le temps file comme une flêche.” But not so good with “Fruit flies like a banana” – “les mouches des fruits comme une banane.” However gender bias can creep in here too. Turkish has genderless pronouns. Google and other automatic translation engines translate “o bir mühendis” as “he is an engineer”, “o bir doktor” as “he is a doctor”, “o bir hemşire” as “she is a nurse”, and “o bir aşçi” as “she is a cook”. This is offensive rather than critical.
But bias certainly does matter in many ways. As many in this audience will be aware, judges in several American states use an AI system called Compas to determine whether to grant bail to alleged offenders and in Wisconsin to help the judge decide the length of a sentence. The system relies on a number of indicators, which do not include race. However it does take into account where the offender or alleged offender lives, and given the racial distribution of populations in American cities, geography becomes a proxy for race. So a black accused who may well not re-offend, given his record, is more likely to be denied bail than a white man with a comparable record. Compas, developed by Northpointe (now Equivant) is proprietary and Equivant will not divulge how it works. Perhaps they cannot. This is surely unethical.
In the case of Wisconsin v. Loomis, the defendant Eric Loomis was found guilty for his role in a drive-by shooting. Pre-trial, Loomis answered a series of questions that were then entered into Compas. The trial judge gave Loomis a long sentence partially because of the „high risk” score the defendant received from this risk-assessment tool. Loomis challenged his sentence, because he was not allowed to assess the algorithm. The state supreme court ruled against Loomis, reasoning that knowledge of the algorithm’s output was a sufficient level of transparency. A legal matter or an ethical one too? Both in my view.
This leads to consideration of another important ethical issue, which has legal consequences as well as more general ones, for instance in finance.
2. EXPLAINABILITY
The most popular forms of AI today are based on deep learning via artificial neural networks. It is a characteristic of such systems that they cannot explain how they reach their decisions. Nor can their designers or developers. This is known as the “black box” problem. They continue to learn, once trained and the problem persists. It is a principle of the Common Law that a judge must explain his decisions. If he is relying on a black box system to make or support his decision, he cannot fulfil that obligation. A legal and an ethical problem.
A comparable problem arises if a bank or mortgage company is relying on a black box AI to determine whether to grant you a loan or a mortgage. If it denies your application and cannot tell you why, then you cannot change your application to enhance your chance of success, for instance by increasing your deposit, because you would not know whether this would meet the system’s objections. Many human beings and human institutions refuse to divulge their reasons, but these AI systems cannot do so. A uniquely AI-specific ethical problem. Work is going on to solve it and make them transparent, for instance at MIT Lincoln Labs, but so far no general solution is available as far as I know.
3. HARMLESSNESS
In 1942 Isaac Asimov published his laws of robotics in I Robot. The first was “A robot may not injure a human being or, through inaction, allow a human being to come to harm”. AIs are tools and any tool can be used for good or ill. A knife can be used to cut bread or stab someone. AI can be used for the benefit of mankind or to hurt people. The use of AI-driven drones (let alone stray ones wandering around Gatwick airport) as Lethal Autonomous Weapons Systems (LAWS) is already controversial. Many at the UN argue for them to be banned like chemical and biological weapons. Some nations, including the UK, argue against it. Undoubtedly all the major powers are developing such systems and a number probably deploying them already. Could a LAWS abort a mission if its target had entered a hospital or hidden in a group of children? A drone operated by a human could and would be aborted in such circumstances. I doubt whether an AI system could make such a sophisticated judgement. Similarly would an AI guided drone be able to decide whether to crash land in a populated or less populated area? Again possible but I doubt it. Unethical? Yes, but ethics is not always the first consideration in military thinking. Definitely an issue in international law.
Secondly facial recognition, an AI technology, can be and is being used by repressive, authoritarian regimes to facilitate persecution. The most egregious example in the world is the widely publicised use of facial recognition technology by the Chinese government to identify, arrest and incarcerate over a million Uighurs in Xinjiang inn Western China for no misdemeanour other than being Uighurs and Moslems. Totally unethical. We were there in 2016 and it pains us to witness it. The one positive note in this sorry tale is that the Trump administration is considering blacklisting five Chinese companies (including Megvii, Zhejiang Dahua Technology Co., and Hangzhou Hikvision Digital Technology Co.) which supply these systems to the Chinese government.
More generally the ethical issues raised by the use of facial recognition technology are gaining wide notice. It is useful and convenient that my PC recognises my face so that I don’t need to use a password to access the machine; more significantly it has enabled police to identify and arrest elusive criminals including the suspect in a mass shooting in an Annapolis MD newspaper office last June. But San Francisco has banned its use by the police and public authorities and Ed Bridges is suing South Wales Police over its use of the technology without his permission. He will argue that it is an unlawful violation of his privacy, and his rights to free expression and protest and that it breaches data protection and equality laws.
AI can also be used for criminal purposes, to take over an autonomous vehicle and turn it into a weapon, to attack infrastructure facilities such as telephone networks and power grids, and to gather the data to increase the effectiveness and frequency of spear phishing. There are many other comparable concerns in IoT. Obviously unethical, indeed criminal. The risks need to be assessed in such situations. What this concern emphasises is the crucial importance of cybersecurity in relation to AI, well covered in an excellent report, The Malicious Use of Artificial Intelligence: Forecasting, Prevention, and Mitigation published in February 2018 by a group of scholars who met at Oxford University the previous February. (1)
They identified that the growing use of AI systems would lead to changes in the landscape of threats:
Expansion of existing threats. The costs of attacks may be lowered by the scalable use of AI systems to complete tasks that would ordinarily require human labour, intelligence and expertise. A natural effect would be to expand the set of actors who can carry out particular attacks, the rate at which they can carry out these attacks, and the set of potential targets.
Introduction of new threats. New attacks may arise through the use of AI systems to complete tasks that would be otherwise impractical for humans. In addition, malicious actors may exploit the vulnerabilities of AI systems deployed by defenders. So AIs attacking AIs.
Change to the typical character of threats. We believe there is reason to expect attacks enabled by the growing use of AI to be especially effective, finely targeted, difficult to attribute, and likely to exploit vulnerabilities in AI systems.
In response to this changing threat landscape they made four high-level recommendations:
1. Policymakers should collaborate closely with technical researchers to investigate, prevent, and mitigate potential malicious uses of AI.
2. Researchers and engineers in artificial intelligence should take the dual-use nature of their work seriously, allowing misuse-related considerations to influence research priorities and norms, and proactively reaching out to relevant actors when harmful applications are foreseeable.
3. Best practices should be identified in research areas with more mature methods for addressing dual-use concerns, such as computer security, and imported where applicable to the case of AI.
4. We should actively seek to expand the range of stakeholders and domain experts involved in discussions of these challenges.
4. RESPONSIBILITY
Timo identified the issues arising when the use of AI in a medical context goes wrong. Of course this issue is not limited to the medical field, and is of undoubted concern to lawyers at this conference. It may be argued that it is a legal rather than ethical issue but in my view it is both. It is most commonly cited in relation to autonomous vehicles (AVs), which, like doctors, and human drivers, can kill people. As far as AVs are concerned, the UK parliament passed a law last July, the Automated and Electric Vehicles Act 2018, which has yet to be implemented. It assigned clear responsibility to the insurer in the case of an AV causing harm or death, assuming that the AV was insured. If not, responsibility lies with the owner. This should ensure that injured parties are compensated relatively quickly, while investigation of the root cause can take its time. The insurer is entitled under the Act to have recourse later to the manufacturer or developer of a failing component, sub-assembly or software module. The Act also has provisions for, for example, failure by the owner to install safety-critical software updates issued by the manufacturer and unauthorised modifications to the software by the user. The Act does not cover the situation where an AV has been hacked and taken over by a hostile party, as I discussed before. Conceptually however, the Act addresses the issue of the absence of a driver who can be held to account. Nevertheless the ethical and legal issues of liability in other domains rest open as far as I know, though work is being undertaken by the EU Commission on potential updates to the Product Liability Directive to take more recent developments like AI into its ambit. Whether and how this will affect us of course depends somewhat on Brexit.
5. Effect on employment and the distribution of the benefits of AI
Will AI create new jobs or destroy old ones? Undoubtedly both. What are the ethical implications? Like industrial revolutions before it, going back to the first industrial revolution, the so-called 4th industrial revolution will first destroy jobs, replacing human operators by faster, cheaper, more efficient machines that don’t take holidays, demand a pay rise or fret about Brexit. In due course they will create the demand for new functions to be performed by humans, that we cannot now even imagine. The problem is the sequence and the unemployment that it will cause in the interim. We cannot estimate the scale of either phenomenon. Some of AI’s most ardent advocates say that there is nothing to worry about. This is wrong. At the other extreme, some have exaggerated the dangers and predicted an employment Armageddon. This is unhelpful. We should be concerned. To displace people from work without helping them to find new work is unethical and harms society.
What is to be done? Retraining is key. There are jobs that AIs cannot touch – user interface design is an example. Who should fund the retraining – government, corporations, individuals? Probably some combination. There are some excellent examples of corporate endeavours in this area. AT&T’s Future Ready initiative is a $1 billion, web-based, multiyear effort that includes online courses; collaborations with Coursera, Udacity and leading universities; and a career centre that allows employees to identify and train for the kinds of jobs the company needs today and will need. By 2020 AT&T will have re-educated 100,000 employees for new jobs with cutting-edge skills. BT has a similar programme and the government sponsored Institute of Coding, supported by BT, IBM, Cisco, Microsoft and others as well as 25 universities and my own institute, the BCS, is a very positive initiative in this direction. We cannot sit idly by.
There is another economic and societal ethical issue relating to AI – the risk that the benefits will accrue disproportionately to a privileged few while the costs fall on those lower down the social scale. There is no quick fix for this risk but it is one that policy makers need to have in mind.
6. Is AI impersonating a human unethical?
Famously Alan Turing devised the Imitation Game, now known as the Turing test, whether a machine could convince a human being that it is another human being. Until recently no machine has passed the Turing test, though many human beings have failed it. However at the Google developer conference last year, Sundar Pichai, the CEO, demonstrated Duplex, an AI that convincingly called a beauty parlour and a restaurant to make a hair appointment and a table booking respectively. Neither receptionist realised that they were talking to a machine. It was so realistic. This technology is now live and available from Google. Although the audience at the conference applauded the demonstration, the reaction on social media was that this was unethical. Not to identify that the machine is a machine is unethical. [As Karmen Turk has said,] the EU High Level Expert group has stated that this contravenes one of their principles.
7. Does ethics matter in AI?
Yes, profoundly. If the public concludes that AI or the use of AI is unethical, it will lose public trust. There are many examples of this happening, with or without scientific justification. GM Foods and the Boeing 737 Max are obvious examples. To quote the EU AI High Level Expert Group,
Trustworthiness is a prerequisite for people and societies to develop, deploy and use AI systems. Without AI systems – and the human beings behind them – being demonstrably worthy of trust, unwanted consequences may ensue and their uptake might be hindered, preventing the realisation of the potentially vast social and economic benefits that they can bring. They wrote, “To help Europe realise those benefits, our vision is to ensure and scale Trustworthy AI.”
The Group identified four ethical principles to which AI should adhere. These are:
(i) Respect for human autonomy
(ii) Prevention of harm
(iii) Fairness
(iv) Explicability
They noted that while many legal obligations reflect ethical principles, adherence to ethical principles goes beyond formal compliance with existing laws. This is a cogent argument.
Ethics is often seen as a bunch of “don’ts”. Certainly, there are unethical threats that need to be countered. But ethics should be seen as a positive. We want to buy from companies that we perceive as ethical. People want to work for ethical employers. Academics want to conduct research in an ethical way. Being ethical should be and increasingly is seen as an important element of an organisation’s stance and strategy. And ethical considerations need to be front of mind in the development and use of AI at every stage, from conception through design and build to deployment.
To conclude, I have considered six ethical issues in relation to AI: Bias, Explainability, Harmlessness, Responsibility for harm, the effect on Employment and Society, and AIs Impersonating Humans. I have argued that ethics really matter if AI is to be trusted and the benefits of AI are to accrue to society.
How does this affect the law? Self-evidently any law, including regulation, should be based on ethical principles. Drafting good regulation is difficult in such a fast-moving domain; excessive regulation runs the risk of inhibiting innovation. But the EU has shown itself to be adept at it and should continue to set the standard.
In this context it is encouraging to note that 42 OECD countries have just signed an accord to support a global governance framework for AI (2) “Recommendations of the Council on Artificial Intelligence – Principles for Responsible Stewardship of Trustworthy AI”. It has no force of law but it’s a good start if the signatories act on it.
So for the lawyers here today, the message is clear, we must consider ethics at every stage, whether advising clients or developing or deploying AI in your practices or in the administration of justice, and that consideration must extend from the Senior Partner or Chief Executive all the way down the organisation. In all matters relating to AI, ethics must come first.
References:
(1) https://arxiv.org/ftp/arxiv/papers/1802/1802.07228.pdf
(2) https://legalinstruments.oecd.org/en/instruments/OECD-LEGAL-0449
Strasbourg: a capital of Europe from Atlantic to Pacific?
Jean-Louis Feuerbach
February 27, 2019
Thirty years ago, the Soviet-American iron curtain collapsed under the impact of the people settled on the Amber Roads. The demackinderisation of the European continent will emerge through the German reunification, the disovietisation and the emancipation of the countries of Central Europe.
Some initial assumptions:
• The market “globalisation” exposes the incapacity of capitalism to hold its hegemony. The planet remains always bigger than them. The post-1945 standard model is disrupted.
• The hyperclass and the peoples are struggling. The capitalism has programmed its obsolescence because the costs of its reign have become exorbitant (Wolfgang Streeck).
• The orgy of the global debts hisses the end of the ball. And with it of those who command by the debt. If the global wealth has been multiplied by 26, the global public debt has been multiplied by 65. Hence the “panic of the world” (Th. Gomart).
• It is the big return of the real, politics and the classic powers. Such as Europe.
• Cuius regio, eius economia.
• At the same time, a transatlantic distance and a disavowal of the level of the Nation State have been notified.
• The political demand of the peoples fluctuates between small size but sovereign political units and political architecture of big space.
Hence these little reflections:
The Euro-Siberian continental space is squared with lines of friendship (amity lines). They correspond to the plural and millenary roads that have names of Amber Roads or Silk Roads. These are both historical and trade routes, routes of spirituality (leylines), of culture and ideas. Nothing, if not, few things hinder it. There are no natural borders. The Ural Mountains are not high enough. The space from the Atlantic Bretagne to the borders of Eastern Siberia is open, easily circulatory. The way from the Rhine to the Pacific is free. Unfortunately, the extra European powers will have ceaselessly accumulated quarrels, barriers and walls to the constitution of a solidarity confederation of peoples. It is high time to end this catastroika. Europe cannot remain an invertebrate space and rump of Globalia. Europe must erase the incapacitating anachronisms, which neutralise and humiliate it. It must think and act on its continental liberation and transcend enmities and lethal hostilities. We must make Europe by reconciling Europeans; it will be from its Eurasian core space. Just follow its rivers or accompany the network of oil and gas pipelines on its landmass and thus recover the raw materials, fossil fuels and necessary ores for the economic, technical, and therefore political project. To reunite and reassemble together the dispersed and separated European Diasporas is the challenge. The Silk Roads will be the giant gateway, which will once again connect the vast shatterbelts between Europe and India and between Europe and China. Across the steppic space and from fluvial Danubian Rhenish axises, without forgetting land communications, the western peninsula of Europe will make the giant leap forward towards Central Europe and Central Asia. From the Baltic Sea to the Black Sea, along the Volga, the Baltic/Pontic axis of the Bosphorus of the Aegean Sea and from the eastern basin of the Mediterranean will be constituted. It aims to unblock the Ukrainian gateway, thus routing the Russian hydrocarbons to the West and opening up whole of Europe. Also by renewing trade relations with India and China, Europe will recover the Middle-Earth. This pacified space from the Atlantic to the Pacific must give rise to a new system of collective security. Of which Strasbourg could be the Lothringian pivot. Thus, the heirs of Charlemagne’s three sons and their brothers from Central Europe will meet again united. And the sharing of Verdun (843) will be revoked. Herewith, the peripheries will be connected again, united, reconnected to the centers. Let us never forget that without energetic supply, Europe would be geopolitically locked, padlocked and neutralised. This disarticulated marionette would only be a piece of Rimland unable to hold its axiological project, economic, societal or legal. Wanting to be at the heart of the world and this heart itself convoques to the mobilisation. Which means starting to move, getting mobilised, getting on the road and having a telos on the horizon. The right itself does not exist without territory. Any civilisation takes place on a specific organisation of space. Europe is first a land, a space, a nomos. The right is its sacred grove. The Nation State idea is no longer operative. The real of balance of power has reduced it to nothing. The rules of the game push the limits and borders. The European space needs room. The future of the political institutions as economic and technical instances passes through the conformation of the momentum to the real. However, Europe is a particular geographical area. Its right or its rights cannot be detached from the history of its Polity, from the imponderables of its geography nor from the aspirations of its peoples. Europeans must lift themselves to the height of these thresholds. To become unified beyond all the old stato-national antagonisms and to live the permanent game of anchorages, re-anchorages and pullings out involves injecting anti-production, that is, coagulating stabilisation jets (G.DeLEUZE) in the flow of flows. May the great instances located in Strasbourg play at the largest scale the role of continental converter of a dynamisor sensor of real, various and plural forces, generous and carnal, living and organic. May the networks of the AEA-EAL associate their skills to such an ethic of responsibility in a collusion of legitimacy and of historical thickness. Professor Walter LEINER considered that the triumph was grounded in a Roman idea of success and historical success, which means, something on which we can build something and on which we must raise a new dimension of adhesion, durability and greatness. Let us establish the Euro-Siberian hemisphere. Let us not forget that the goddess Europe owes its name to its great eyes that see far and wide. To be continued.
Solemn Reception of the Senegal Bar “Conférence du Stage” (14-18 January 2019)
Jean-Pierre van Cutsem
February 18, 2019
On the invitation of the President of the Bar of Senegal, Mbaye GUEYE, our past President and Member of the Board of Directors of the European Association of Lawyers AEAEAL, Jean-Pierre van Cutsem represented our Association in the Conference of the Senegal Bar on training of lawyers. The program of the Conference included three main parts, not to mention social activities (cocktail dinners, excursions, etc.)
– Monday 14: Welcome of participants and screening of a film about the Senegalese Bar Association
– Tuesday 15 and Wednesday 16 a symposium organized by the Senegalese Bar Association about Regulation No. 5/CM/UEMOA on the new skills for lawyers connected with representing clients under arrest.
– Thursday 17 a Ceremony of “Rentrée Solennelle de La Conférence du Stage“. The Senegal Bar Association is a national bar affiliated at the Constitutional Council, the Supreme Court and the Courts of Appeal. It brings together lawyers from all over Senegal, regardless of the jurisdiction of the Court of Appeal where they are based. The headquarters of the bar is located in the capital city of Dakar. The bar was created by Act No. 84-09 of 4 January 1984, and the President of the Bar, is elected for a two-year term; he heads the bar and is assisted by the bar’s Council. As for the colloquium on Regulation No. 5/CM/UEMOA, it proved to be very informative on the role of the lawyer. First of all, it should be pointed out that UEMOA,
“Union Economique et Monétaire de l’ Ouest Africain “, groups together the countries that use the CFA as their currency, was created in 1994 and currently groups 8 West African countries, namely: Benin, Burkina Fasso, Côte d’Ivoire, Guinea-Bissau, Mali, Niger, Senegal and Togo. The Bars of the UEMOA countries are gathered in the UEMOA Bar Conference currently chaired by the President of the Bar of Senegal. As in the European Union, the Regulations adopted by the WAEMU Council of Ministers are immediately applicable in the national legal systems of the various UEMOA member countries. On 25 September 2014, the UEMOA Council of Ministers adopted Regulation No. 05//CM/ UEMOA on the harmonization of the rules governing the legal profession in the UEMOA region, which entered into force on 1 January 2015. The theme of the colloquium was article 5 of these Regulations, which states: “Lawyers shall assist their clients as soon as they are arrested, during the preliminary investigation,
on police or gendarmerie premises or before the public prosecutor’s office”. It is the notion of arrest that is the subject of debate and a circular from the Minister of Justice of Senegal No. 00179 dated 11 January 2018 specifies that the notion of
arrest would encompass a broader reality than police custody and that it actually extends to all situations in which the suspect is at the disposal of the Judicial Police Officer for the purposes of an interrogation or investigation. In the course of the interventions and debates it emerged that, although the Regulation is indeed directly applicable in the domestic legal order, the implementation of the provisions of the said Regulation is more advanced in some UEMOA countries than in others; but that in any case significant progress has been made since the entry into force of the Regulation. It seems important to note that many judicial police and gendarmerie officers also participated in the seminar and therefore had the opportunity to better understand the rights of lawyers when they intervene alongside their clients from the moment they are arrested. Thursday 16th was devoted to the “Rentrée Solennelle de la Conférence du Stage” and consisted of many speeches, including intervention of the Minister of Justice representing the President of the Republic of Senegal, President of the Bar of Senegal and his successor, Mr Papa Laïty Ndiaye, who will become President of the bar in July as well as many other speeches, including the former President of the Bar of Paris. These speeches were followed by interventions of two Secretaries of the Conference It was well-organized and very successful event. As the AEA-EAL extends to the countries of Eastern Europe and Asia, it would be important for it to also look to Africa and the lawyers of UEMOA, whose values seem very close to those of the lawyers of the European Union.
The publicity of the beneficial owner of the companies will be accentuated soon
Juan Núñez
January 25, 2019
The Fifth Directive of the European Union for the Prevention of Money Laundering and the Financing of Terrorism, of 30 May 2018, echoes the great concern over the recent attacks suffered (Paris, Nice, Berlin, Brussels, London, Barcelona and Cambrils), and is determined to toughen the surveillance measures, and one of them is to improve “the transparency of the companies and other legal entities, trusts (” trust “) and similar instruments”.
For this purpose, it establishes that Public Registries must have “sufficient, accurate and current” information on the beneficial ownership of the companies and allow public access to this information. It is reminded that the beneficial owner is “the individual or individuals who ultimately own or control, directly or indirectly, a percentage greater than 25% of the capital or voting rights of a legal entity or that, through agreements or statutory provisions, exercise a direct or indirect control of a corporation”. If the beneficial owner is also a corporation, the beneficial owner of this corporation shall be consigned, and the chain will continue upwards until reaching the beneficial owners who hold control in more than 25%.
The Directive emphasizes the need for the “legally bound subjects” (the companies themselves -by means of their directors-, financial entities, public registries, notaries, lawyers that provide corporate or real estate advice, real estate agents, among others) to collect and safeguard these data, maintaining them in a “sufficient, accurate and current” way.
For years, this information has already been gathered by companies, affected professionals, financial institutions and notaries.
The novelty lies in the public access to the information contained in the registers, which the Directive concludes that “it allows for greater control of information by civil society, including the press or civil society organizations” since ” The confidence of investors and the public in financial markets depends to a large extent on the existence of a rigorous disclosure regime that provides transparency regarding real ownership and the control structures of companies “.
It is also a novelty that, if there is no real ownership, because the capital is in hand of partners with smaller shareholdings, the data of the directors of the final company will be consigned.
The scope of this publicity remains to be seen, and its collateral effects can be disconcerting (all the citizens to know who is the owner of half of the city, it is a collateral effect that does not have much to do with the fight against terrorism…).
We must remember, however, the misgivings that caused the first company Directives, back in the 70s, which forced to deposit the annual accounts of the companies in the Commercial Registry.
Experience of Polish firms posting employees
Summary of speech during the AEA-EAL conference in Lyon, November 23, 2018
Katarzyna Gospodarowicz
November 27, 2018
With the Poland’s accession to UE in 2004 has opened up new opportunities for Polish entrepreneurs to provide wide range of services for foreign contractors. A key element of the principle of freedom to provide services has proved to be posting of workers. With the new possibilities has also come along new problems concerning among others the legal issues of sending the employees to work abroad. The question of belonging to a particular social security system, applicable law, labor conditions during posting period became a huge challenge, especially since these systems differ significantly from one Member State to another.
Within the first year’s Polish employers who have sent their employees encounter lot of barriers as requirement of obtaining additional work permits, not recognizing Polish salary as minimum wage and accusations of using social dumping. During these 14 years some rules has been changed, some specified but the Polish companies sending their employees to work abroad has also learned how to handle with those provisions and situation. Unfortunately, in some countries they face the same problems as at the beginning. Still there are some countries that are more open to host the posted employees and some that create a lot of paperwork, discouraging employers from posting.
In order to understand the problems of Polish employers posting their employees, it has to be noted that in Polish labour code there is regulated an institution of business trip. During business trip an employee is supposed to perform specific task on the employer’s request. We have two type of the business trips: domestic and foreign one. At the beginning it was very problematic to understand by Polish employers that the business trip is rather an institution of Polish national system and posting is European one and that during posting different legislation are applicable.
When an employer is trying to establish which exactly provisions are applicable under e.g. German law during posting period, the problem begins. Referring to posting to Germany we have several legal acts that have to be observed. Even, if we find one and appropriate provision, we discover very shortly that it refers to another legal act and another provisions. The problem is also that some obligations, as number of annual leave, minimum remuneration are regulated in collective agreements issued for particular sectors and there is no official list of those collective agreements. They are even not easily accessible. Another problem is that, even if we will find an appropriate legal act, there is very problematic to find its translation. In addition, the authorities of particular country do not provide binding answers to the issues related with the applicable law on posting in their country.
Those are only examples of problems facing by the Polish employers posting their employees to perform services among UE. I assume, that if the obligations of posting employers will be easier accessible, not only in native language of particular country and in each country will be a body that will provide information, we could avoid a bigger amount of cases of irregularities during the posting period.
It is very important to underline that not every posting by Polish employer is at once connected with the term of social dumping. From my experience, the employers are trying to comply with all the provisions on posting of particular legislation, unless they are ambiguous even for employers from host country.
Standard Terms of Chinese Contract Law Practice
Guan Zhengrong
August 28, 2018
Standard terms, which are very common in drawing up contracts, can easily lead to contract disputes. Principles of International Commercial Contracts (hereinafter referred to as PICC) made general provision for standard terms, which could provide reference for the legislation of different countries, and is applicable to judiciary and arbitration. For instance, the definition of Article 2.1.19 in PICC to standard terms is: standard terms are provisions prepared in advance for general and repeated use by one party and are actually used without negotiation with the other party.
Article 2.1.20 stipulates circumstances for surprising terms, namely, invalidity of standard terms: no term contained in standard terms which is of such a character that the other party could not reasonably have expected it, is effective unless it has been expressly accepted by that party.
Contract Law of People’s Republic of China (hereinafter referred to as Contract Law) also provides detailed rules and restrictions on the standard terms. If these rules are violated, the legal consequences of the standard terms are revocable or invalid. Therefore, in the case of Sino-foreign economic and trade activities, the party providing the contract text shall pay full attention to the content of the standard terms.
Standard terms, which are clauses prepared in advance for repeated use by one party, are not negotiated with the other party when the contract is concluded.
Section 1 of Article 39 in Contract Law: where standard terms are adopted in concluding a contract, the party supplying the standard terms shall define the rights and obligations between the parties abiding by the principle of fairness, and shall inform the other party to note the exclusion or restriction of its liabilities in a reasonable way, and shall explain the standard terms upon request by the other party.
Article 40: When standard terms are under the circumstances stipulated in Articles 52 and 53 of this Law, or the party which supplies the standard terms exempts itself from its liabilities, increases the liabilities of the other party, and deprives the material rights of the other party, the terms shall be invalid.
Interpretation II on Issues of the Contract Law Application from Supreme People’s Court (hereinafter referred to as Interpretation II of Contract Law) specify the detailed liability of the party who provides the standard terms and the consequences of violating the legal obligations. These regulations also become important reference in judicial practice.
The party who provide standard terms, shall use special signs such as characters, symbols and fonts which are enough to attract the attention of the other party to those contents which eliminate or limit its responsibility when contract is concluded. And shall, with the request of the other party, specify the terms of the format. Under all the above circumstances, it should be deemed conforming to “taking reasonable method” asserted in Article 39 in the Contract Law by the People’s Court.
The party who provides standard terms violates the clause of Section 1 of Article 39 in Contract Law concerning the obligations of presentation and explanation, resulting in the other party failed to notice the terms that exempt or limit its liability, the claim that the other party apply to revoke the standard terms shall be supported by the People’s Court in law.
The party who provides the standard terms violates the clause of Section 1 of Article 39 in Contract Law and has one of the circumstances specified in Article 40 of the Contract Law, the standard terms shall be deemed invalid by the People’s Court .
Here is a related case which was bulletined by China’s Supreme Court.
The case was judged by the Intermediate People’s Court of Guangzhou, China. Article 10 of Installation Application of Global System for Mobile Communications (GSM) Contract, which was provided by a telecommunications company, stipulated that “after being suspended for three months, the company has the right to transfer the user’s number to someone else without refund any of the network charges.” The court held that this was a form of standard terms only emphasizing their own rights but ignoring the interests of user’s. Thus, this term has damaged the plaintiff’s property rights and interests and violated the fairness principle. Therefore, this standard terms shall be invalid. The telecommunications company shall bear civil liability for its transferring of the plaintiff’s telephone number.
Therefore, as a general rule, when guiding the client to conclude the contract, even though the client does not provide the standard form of contract, for some of clause which may conclude the implication of “exempt its responsibilities, increase the liabilities of the other party and exclude the other party’s main rights”, the clients are suggested to remind the other party in text by means of enlarged font, bold, italic or underline. For major contracts, I would also advice my client to request the other party to autograph contents such as “The terms of the contract have been carefully read and understood without ambiguity. The above contract content is my real intention”, so as to guarantee the validity of the contract.
Irish Rule of Law International activities in Malawi
Norville Connolly
August 27, 2018
Irish Rule of Law International (IRLI) is a joint initiative of the Law Society of Ireland and the Bar of Ireland as well as the Law Society of Northern Ireland and the Bar of Northern Ireland, dedicated to promoting the rule of law in developing countries on a project-oriented, non-profit basis. IRLI seeks to harness the skills of Irish and Northern Irish lawyers in using the law as a means of tackling global injustice and empowering all people to live in a society free from inequality, corruption and conflict
Originally founded in 2007 by the Law Society of Ireland and the Bar of Ireland, the organisation has collaborated with academics, judges, legal practitioners, policy-makers and civil society around the world to advance collective knowledge of the relationship between rule of law, democracy, sustained economic development and human rights. IRLI was joined in 2015 by the Law Society of Northern Ireland and the Bar of Northern Ireland.
IRLI originated in the recognition of the importance of the rule of law for sustainable development and we believe that members of the Irish legal profession have a significant role to play in strengthening the rule of law and shaping the progress of fragile societies. IRLI has worked and is working in a number of countries for example Malawi.
IRLI has been working in Malawi since 2011, to address capacity challenges within the criminal justice sector with the overall aim of improving access to justice for unrepresented vulnerable persons. As part of this programme, Irish volunteer lawyers are seconded to or positioned strategically alongside the principal institutional actors in the criminal justice system: The Legal Aid Bureau, Ministry of Justice, Office of the Director of Public Prosecutions and the Malawi Police Service. Their work is also supplemented by volunteer lawyers based in Ireland, who provide short term intensive training for partner organisations.
The Malawi team is currently made up of Programme Manager Fran Flood, Programme Lawyers Macdara O Drisceoil, Tyler Holmes, Maya Linstrum Newman and Programme Officer Jolene Quinn. Two further volunteers are currently being recruited to support the team there.
In Malawi there is excessive use of pre-trial detention and the lack of a comprehensive legal aid system, amongst other factors, have resulted in overcrowding in Malawi’s prisons as well as considerably long detention times for prisoners being held on remand. Overcrowding in prisons is a prevailing problem across many nations in Africa, with the practice of holding prisoners on remand compounding the issue. As a result, in some countries a good majority of the prison population is made up of those awaiting trial. By reducing overcrowding, conditions for prisoners improve thus enhancing Malawi’s observance of the human rights of prisoners and remandees.
The poor of Malawi also face physical, financial and language barriers to legal aid. Most live in remote rural areas, live on an income of $1 per day, and do not speak English – the language of the court. With no representation vulnerable Malawians are often held in custody for months, or years, until a trial court acquits or sentences him/her.
In tackling access to justice for the poor, IRLI has sought to implement mechanisms in partnership with local actors to remove obstacles to free legal aid in the short-term (such as capacity constraints and shortage of lawyers) in order to bring about direct change at beneficiary level, while developing systemic, sustainable interventions aimed at providing long-term benefits to the wider criminal justice sector.
IRLI works to build capacity in the criminal justice sector and provide access to justice in the following ways:
Working closely with advocates and officials in the Legal Aid Bureau to progress cases of remandees and juveniles, with a focus on children, women, the sick, and the elderly.
Training of magistrates, police officers, social workers, advocates and paralegals in human rights and due process, restorative justice and diversion, case management and client care, as well as the protection of children and young offenders who come in conflict with the law;
Supporting the Office of the Director of Public Prosecutions to improve case management systems, processing of homicide cases and writing of legal opinions.
Working with the Malawi Police Service to strengthen diversion programmes in police stations in Lilongwe so that juveniles and first-time offenders of minor crimes are diverted from the already over-burdened prison system;
Facilitating a Child Diversion Programme in partnership with Chisomo’s Children Club and the Ministry of Gender, Children, Disability and Social Welfare with a focus on reducing recidivism through correctional education;
Engaging with local Traditional leaders, with the support of the Malawi Police Service and Legal Aid Bureau, to facilitate community legal education workshops to sensitise the broader community about bail rights, diversion, child protection and human rights.
The Malawi programme is funded by Irish Aid and the European Union.
New Brussels International Business Court (BIBC)
Sabine Perquy-Forke
August 10, 2018
On Jun 26th 2018, the new coming Brussels International Business Court (BIBC) has been presented by the Belgian Minister of Justice and other very prominent speakers at the town hall in Brussels. The BIBC, which should be operational by January 1st 2020, aims to be a real alternative to the existing dispute resolution methods in the international B2B sector.
The most important characteristics to be pointed out are:
(1) the combination of important advantages known from the arbitration procedure (based on the UNCITRAL Model Law, agreement of the parties necessary, 2 specialised lay judges, no appeal, …) with several advantages from the public court procedure (State Court chaired by a professional magistrate, lesser cost of procedure, ‘pourvoi en cassation’ possible before the Supreme Court, …) and
(2) the language: the BIBC will be the first and only English speaking state court in Belgium.
This combination bears advantages and disadvantages depending on the concrete dispute:
– as any judgement rendered by a Belgian state court, the enforcement will be simplified within the EU thanks to the existing regulations, but more complicated outside the EU as the 1958 New York Convention will not be applicable,
– contrary to arbitration, there will be no confidentiality of procedure and judgement nor any active influence by the parties on the identity of the judges who will hear the dispute.
Similar courts are already existing or in project in other important international places such as UK, NL, FR, Singapore, Dubai. Given the central geographical place of Brussels, known as international crossroads of culture and business, heart of the EU, the creation of a specialised English-speaking court with jurisdiction over international commercial disputes is a logic response to a real need.
Independence of Advocates and Bars
Intervention for the AEA-EAL conference in Almaty, June 15 – 16, 2020
All conference presentations and interventions may be found here
Ph. D. Elisabeth Hoffmann
June 11, 2018
Introduction
Lawyers play many vital roles in democratic systems by preserving, protecting and perpetuating the rights of citizens. In order to accomplish their mission, lawyers have essential rights but also significant duties such as.:
– independence of the public authorities
– freedom of speech
– the right not to be identified with their clients or their clients’ causes ;
– the right to legal privilege (professional secrecy) and the duty to safeguard it.
I. The principle of independence
In an impartial and balanced judicial system, lawyers play a vital role as a genuine auxiliary of justice. Their independence defined and protected by ethical rules of the profession, is indeed in the heart of an impartial justice. In their position as auxiliary of justice, lawyers do not organically belong to the public service of justice. They need to be independent . This independence has several aspects:
a) it is an intellectual first: lawyers must remain responsible of the legal arguments and the advices they give. They also need the right to refuse cases contrary to their conscience or likely to impair their independence
b) In order to maintain their independence, they have to keep a financial distance from their clients. For this reason, contingency fees are for example prohibited in the EU and there is a ban on participation in commercial activities.
The code of Conduct of European Lawyers enacted by the European Council of Bars and Law Societies (CCBE), formerly presided by Ms. Maria Slazak, describes under article 2.1 as follows the various implications of the principle of independence :
« The many duties to which a lawyer is subject require the lawyer’s absolute independence, free from all other influence, especially such as may arise from his or her personal interests or external pressure. Such independence is as necessary to trust in the process of justice as the impartiality of the judge. A lawyer must therefore avoid any impairment of his or her independence and be careful not to compromise his or her professional standards in order to please the client, the court or third parties. ».
II. Lawyer’s independence in the European approach
a) Freedom of expression and its limits
There is no justice if the lawyer is not free to speak without constraint and guaranteed by a strong immunity. This freedom of expression is an essential guarantee for the defense of citizen’s rights. In the case Morice v / France, the European Court of Human Rights stated that:
‚Being the cornerstone of a democratic society, freedom of expression had a particular characteristic as regards lawyers, who had to be able to carry on their profession without hindrance; if the use of their speech were to be censored or restricted, the real and effective defense of the citizen would not be guaranteed [ECHR case Morice v / France, 23 April 2015, application n° 29369/10 of 7 May 2010). If necessary in a democratic society, freedom of expression of the lawyer may only be exceptionally limited, in order namely to impede the disclosure of information received in confidence (professional secrecy), to prevent the attempts to the reputation or rights of other persons or to the authority and impartiality of the judiciary.
b) Independence of the lawyer vis-a-vis his client
A reference to this kind of independence is made in the Code of Conduct for European Lawyers enacted by CCBE when it states that: ‚A lawyer must therefore avoid any impairment of his or her independence and be careful not to compromise his or her professional standards in order to please the client. (Article2.1.).
As qualified and trained professionals, lawyers will first of all advise their clients in consideration of applicable laws and become logically ‚the first judge of the case’. Furthermore, their necessary professional and intellectual independence implies that they should never be identified with their client’s causes. This consideration is extremely important due to the tendency, in certain countries, especially in non-democratic systems, to assimilate clients’ causes with their lawyers in order to jeopardize lawyers’ independence and freedom of speech.
c) Independence in front of the state authorities
In criminal proceedings, lawyers ensure the balance between defendants’ rights and their mission of maintaining public order. They must have the means to oppose the state authorities in order to assure the defense and representation of their clients, without fear for the latter or for themselves. A lawyer should never be subordinated to a political power and may only be controlled by independent self-regulating bodies i.e. Bars and/or the Law Societies. This independence from the State increases indeed substantially the necessary confidence of the client. The client’s rights are, of course, much better protected if he his is represented by a qualified professional who is not submitted to public authorities. Moreover, the respect of the ethical rules enacted by Bars and Law Societies independent from States contributes to reinforce the lawyer’s relationship of trust with his client. In many Member States of the EU, the legal profession successfully defends its ethical rules by letting them recognize by the States. Indeed, self regulation (fixing freely their professional rules and ability to organize and manage the profession) has to be considered as a corollary to the core value of independence.
d) Professional secrecy, a basic element of client’s trust and lawyer’s independence
By combining Articles 8 (right to privacy) and 6 (right to a fair trial) of the European Convention on Human Rights, the European Court of Human Rights offers an adequate protection of the duty of confidentiality – a principle which is not defined in the texts.
In the case Michaud v / France (ECHR 6 December 2012, application n° 12323/111 of 19 January 2011) the European Court of Human Rights stated that the licit fight against money laundering may not justify the deletion of the lawyers’ right to professional secrecy. It stressed that this right is essential in a democratic system and that the obligation for a lawyer to inform and cooperate with the authorities responsible for the fight against money laundering has to be executed in due consideration of the necessities of the protection of lawyers’ professional secrecy. The 4th EU directive No. 2015/849 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing applies this jurisprudence by providing that the delivery of the concerned information to the public authorities must be previously submitted to the approval of the competent Bar or Law Society which will decide if this disclosure could jeopardize the protection of professional secrecy.
e) The recent jurisprudence of the EHCR
In a judgment rendered on April 4, 2018 (ECHR, Correia de Matos v / Portugal, 4 April 2018, application n° 56402/12 of 4 August 2012), the European Court of Human Rights has resumed its vision of the essential role played by independent and competent lawyers in the administration of justice. „139. The Court reiterates the most important role played by lawyers in the administration of justice. It has frequently referred to the fact that the specific status of lawyers gives them a central position in the administration of justice as intermediaries between the public and the courts and has pointed to the fact that, for members of the public to have confidence in the administration of justice, they must have confidence in the ability of the legal profession to provide effective representation (…); 140. That special role of lawyers, as independent professionals, in the administration of justice entails a number of duties, particularly with regard to their conduct, which must be discreet, honest and dignified (…) 141 . In Recommendation No. R(2000)21 on the freedom of exercise of the profession of lawyer, the Committee of Ministers of the Council of Europe emphasized that the profession of an advocate must be exercised in such a way that it strengthens the rule of law. Furthermore, the principles applicable to the profession of advocate contain such values as the dignity and honour of the legal profession, the integrity and good standing of the individual advocate, respect towards professional colleagues as well as respect for the fair administration of justice;” Ill No independent lawyer without independent bar. In the context of the legal profession, in addition to „independence of lawyers”, the democratic societies necessarily accept the necessity of the establishment of independent bodies self-regulating the legal profession, i.e. of the „independence of the Bar(s)”.
In a recommendation to Member States, the Committee of Ministers of the Council of Europe has namely stated that:
„Bar associations or other professional lawyers’ associations should be encouraged to ensure the independence of lawyers and, inter alia, to:
a. promote and uphold the cause of justice, without fear;
b. defend the role of lawyers in society and, in particular, to maintain their honour, dignity and integrity;
c. promote the participation by lawyers in schemes to ensure the access to justice of persons in an economically weak position, in particular the provision of legal aid and advice;
d. promote and support law reform and discussion on existing and proposed legislation;
e. promote the welfare of members of the profession and assist them or their families if circumstances so require;
f. cooperate with lawyers of other countries in order to promote the role of lawyers, in particular by considering the work of international organizations of lawyers and international intergovernmental and non-governmental organizations;
g. promote the highest possible standards of competence of lawyers and maintain respect by lawyers for the standards of conduct and discipline.” [Recommendation R(2000)21, art.V § 4].
IV. The relations between lawyers and courts
The actual vision of a valuable relationship between lawyers and courts in a democratic society is properly expressed in the Opinion no. (2013) 16 on the relations between judges and lawyers, issued by the Consultative Council of European Judges (CCJE) on 13-15 November 2013 :
7. Judges and lawyers must be independent in the exercise of their duties, and must also be, and be seen to be, independent from each other. This independence is affirmed by the statute and ethical principles adopted by each profession. The CCJE considers such independence vital for the proper functioning of justice.
21. The CCJE considers that the „relations between judges and lawyers should be based on the mutual understanding of each other’s role, on mutual respect and on independence vis-a-vis each other. The CCJE accordingly considers it necessary to develop dialogues and exchanges between judges and lawyers at a national and European institutional level on the issue of their mutual relations. The ethical principles of both judges and lawyers should be taken into account. In this regard, the CCJE encourages the identification of common ethical principles, such as the duty of independence, the duty to sustain the rule of law at all times, co-operation to ensure a fair and swift conduct of the proceedings and permanent professional training. Professional associations and independent governing bodies of both judges and lawyers should be responsible for this process.”
V. Conclusions
Lawyers and their professional organizations have a crucial role in a democratic society founded on the respect of the Rule of the Law and the protection of human rights and fundamental freedoms. Lawyers must be able to work independently and without fear and they deserve therefore special attention by everyone interested in a fair and impartial system of justice. Furthermore, the lawyers’ independence is not conceivable without the establishment of professional independent associations. In every country, lawyers should consequently be entitled to form and join self-governing bodies to represent their interests and protect their professional integrity. These bodies shall cooperate closely with governments and courts to ensure that everyone has effective and equal access to legal services. They should also guarantee that the lawyers may counsel and assist their clients in accordance with law and recognized professional standards and ethics, without improper interference of public authorities. These core values of the profession are strongly linked and interdependent. They are the basic conditions of democratic society where citizens are entitled to confidence in their political and judicial system in order to ensure their fundamental rights and freedoms.
Court of Justice of the European Union 31 January 2018 – C-106/17
Sibylle Calabresi-Scholz
June 28, 2018
Article 13(2) Brussels Ia Regulation, read in conjunction with Article 11(1)(b) of that regulation, must be interpreted as meaning that it may not be relied on by a natural person, whose professional activity consists, inter alia, in recovering claims for damages from insurers and who relies on a contract for the assignment of a claim concluded with the victim of a road accident, to bring a civil liability action against the insurer of the person responsible for that accident, which has its registered office in a Member State other than the Member State of the place of domicile of the injured party, before a court of the Member State in which the injured party is domiciled.
1. Facts underlying the Decision
On 4 July 2014, a vehicle belonging to a natural person domiciled in Poland was damaged in a traffic accident in Germany caused by a German national insured with LVM Landwirtschaftlicher Versicherungsverein Münster AG (‘LVM’), established in Münster (Germany).
On 12 July 2014, the owner of that vehicle entered into a rental contract for a replacement vehicle for an indefinite period; as the rate was 200 Polish zlotys (PLN) (approximately EUR 47.50) per day and the rental period extended until 22 September 2014, the rental cost amounted to PLN 14 600 (approximately EUR 3 465).
However, the owner has only been compensated for PLN 2 800 (approximately EUR 665) by a company representing LVM in Poland.
On 22 September 2014, in order to receive the remaining PLN 11 800 (approximately EUR 2 800), the owner of the vehicle concluded a contract for the assignment of a claim, whereby he transferred his right to damages to Mr Hofsoe, who exercises his commercial activity in Szczecin (Poland).
In relation to that activity, on the basis of a contractual assignment of a claim, Mr Hofsoe assumes responsibility for securing compensation from insurers to which an injured party may be entitled.
On 2 February 2015, on the basis of the contract for the assignment of a claim as referred to in paragraph 19 of the present judgment, Mr Hofsoe brought an action before the Sąd Rejonowy Szczecin-Centrum w Szczecinie seeking, principally, the amount of PLN 11 800 (approximately EUR 2 800) from LVM by way of compensation corresponding to the rental cost of a replacement vehicle.
For the purposes of establishing the jurisdiction of that court as that of the injured party’s place of domicile, Mr Hofsoe relied on Article 20 of the Law on compulsory insurance, the Insurance Guarantee Fund and the Polish Motor Vehicle Insurance Office of 22 May 2003 and the judgment of the Court of 13 December 2007, FBTO Schadeverzekeringen .
However, relying on Article 9(1) Brussels I Regulation 44/2001, read in conjunction with Article 11(2) of that regulation, LVM disputed the jurisdiction of that Polish court. It maintained that the concept of ‘injured party’ within the meaning of Article 11(2) of that regulation should be interpreted literally so that Mr Hofsoe could not sue it before a Polish court in his capacity as assignee of the injured party’s claim.
However, the Sąd Rejonowy Szczecin-Centrum w Szczecinie declared itself to have jurisdiction by a decision of 13 May 2015.
In support of the appeal which it brought against that decision before the referring court, the Sąd Okręgowy w Szczecinie , LVM primarily contends that the court of first instance misinterpreted Article 13(2) Brussels Ia Regulation 1215/2012, read in conjunction with Article 11(1)(b) of that regulation, by holding, contrary to the guidance to be derived from recitals 15 and 18 of that regulation and from the case-law of the Court, that Mr Hofsoe should have been regarded as the weaker party in the dispute. According to LVM, Mr Hofsoe is not the injured party as such, but a professional engaged in obtaining damages from insurance companies. Furthermore, as a derogation from the general rule of jurisdiction laid down in Article 4(1) of Regulation No 1215/2012, Article 13(2) of that regulation should be interpreted strictly.
Mr Hofsoe maintains that the attribution of jurisdiction to the courts for the place where thepolicyholder, the insured or a beneficiary is domiciled, as provided in Article 9(1)(b) of Regulation No 44/2001, which has been replaced by Article 11(1)(b) of Regulation No 1215/2012, (‘the forum actoris’) is not reserved exclusively for the party directly injured, so that the assignee of the injured party’s claim should also be entitled to rely on it.
The referring court considers it necessary to make a reference to the Court in so far as the field of application ratione personae of the attribution of jurisdiction provided for in Article 11(1)(b) of Regulation No 1215/2012 depends, in this instance, on the interpretation of the concept of ‘injured party’, within the meaning of Article 13(2) of that regulation. The jurisdiction of the referring court is established only if it were considered that the concept of ‘injured party’ includes a professional in the insurance sector, assignee of the claim for damages held by the person directly injured against the insurer of the vehicle which caused a traffic accident.
In that regard, the referring court points out, under Article 509(2) of the Civil Code, ‘all rights associated with the claim (…) shall be transferred with the claim’. In those circumstances, the assignment of the claim should include that of the benefit of jurisdiction. Such an interpretation would contribute towards achieving the purpose of protecting the weaker party, which underlies the special rules of jurisdiction applicable in insurance matters.
The referring court takes the view that the concept of ‘injured party’, within the meaning of Article 11(2) of Regulation No 44/2001 and consequently, of Article 13(2) of Regulation No 1215/2012, refers both to the person who suffered the damage directly as well as to a person who only suffered that damage indirectly. Therefore, that concept should cover the person who carries out, as a natural person, a professional activity of claims recovery in order to obtain compensation for damages against insurance companies, on the basis of a contract for the assignment of a claim concluded with the directly injured party. According to the referring court, that solution is all the more applicable as, in this case, there is a clear imbalance, from an economic and organisational point of view, between Mr Hofsoe’s position and that of an insurer as legal person, whose capacities, in that regard, are significantly larger.
That specific comparison of the respective situations of the parties to the main proceedings also highlights the difference between the underlying facts of the dispute in the main proceedings and those giving rise to the judgments of 17 September 2009, Vorarlberger Gebietskrankenkasse , and of 26 May 2005, GIE Réunion européenne and Others .
The referring court observes, however, that the interpretation which it suggests of Article 13(2) of Regulation No 1215/2012, read in conjunction with Article 11(1)(b) of that regulation, conflicts with the principle of strict interpretation of exceptions and, more particularly, Article 5(1) of that regulation, read in the light of recital 15 thereof.
In those circumstances, the Sąd Okręgowy w Szczecinie decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:
Must the reference, in Article 13(2) [Brussels Ia Regulation] to Article 11(1)(b) thereof be interpreted as meaning that a natural person, a businessman, who is engaged in, inter alia, obtaining damages from insurers, and who relies on the acquisition by contract of a claim from the party directly injured may bring an action for that claim against the civil-liability insurer of the person responsible for a road accident, which has its registered office in a Member State other than the Member State of the place of domicile of the injured party, before a court of the Member State in which the injured party is domiciled?
2. Findings of the Court
(1) Direct action under national law
As the CJEU notes, Article 822(4) of the Polish Civil Code makes it possible, for the person entitled to compensation, to bring a direct action against the insurer, which, under Article 13(2) Brussels Ia Regulation, results in Articles 10 to 12 of that regulation being applicable.
(2) Extension of the forum actoris to assignees of the rights of the directly injured party
The Court recalls that it has held in MMA IARD that the purpose of the reference in Article 13(2) Brussels Ia Regulation is to add injured parties to the list of claimants contained in Article 11(1)(b), without restricting the category of persons having suffered damage to those suffering it directly. Thus, the forum actoris must be extended respectively to the heirs of an insured party and to the employer who continued to pay the salary of an employee injured in a road accident while he is on sick leave after that accident. Those decisions are based on the reasoning that, first, the purpose of the provisions listed in Section 3 of Chapter II Brussels Ia Regulation is to protect the weaker party by rules of jurisdiction more favourable to his interests than the general rules and, second, an assignee of the rights of the directly injured party, who may himself be considered to be a weaker party, should be able to benefit from the special rules on the jurisdiction of courts laid down in the combined provisions of Article 11(1)(b) and of Article 13(2).
(3) No extension of protection to persons for whom that protection is not justified
As the CJEU has already held, the special rules of jurisdiction for the protection of insured are to be interpreted strictly and not to be extended to persons for whom that protection is not justified. That is the case for example where the parties concerned are professionals in the insurance sector, neither of whom may be presumed to be in a weaker position than the other. The Court follows that, therefore, a person such as Mr Hofsoe, who carries out a professional activity recovering insurance indemnity claims against insurance companies, in his capacity as contractual assignee of such claims, should not benefit from the special protection constituted by the forum actoris. The fact that he carries out his business on a small scale cannot lead to the conclusion that he is deemed to be a weaker party than the insurer. According to the Court, a case-by-case assessment of the question whether such a professional may be considered as a ‘weaker party’ in order to be covered by the definition of ‘injured party’, within the meaning of Article 13(2) Brussels Ia Regulation, would give rise to the risk of legal uncertainty and would be contrary to the objective of that regulation, laid down in recital 15 thereof, according to which the rules of jurisdiction must be highly predictable.
Decrease in Belgian corporate tax rates
Ph.D. Elisabeth Hoffmann
February 25, 2018
The new Belgian corporate income tax reform was recently enacted by the law of 25 December 2017 (hereafter: “Law”), as published in the Belgian State Gazette of 27 December 2017. As from tax assessment year 2019 (i.e. income 2018 if the accounting year matches the calendar year), the Law decreases the standard corporate income tax rate from 33.99% to 29.58%.For small and medium-sized enterprises (hereafter: “SMEs”) a reduced corporate income tax rate of 20.40% will be applicable with respect to the first tranche of EUR 100,000. Any taxable income exceeding EUR 100,000 will be subject to the standard corporate income tax rate of 29.58%. This reduced tax rate of 20, 40% on the first tranche of EUR 100,000 is however subject to the condition that a minimum annual remuneration is paid to at least one of the company’s directors. The annual remuneration should at least be EUR 45,000 (if the company’s taxable base exceeds EUR 45,000) or an amount equal to the company’s taxable base (if the company’s taxable base is below EUR 45,000). The minimum remuneration is not required during the first four years for SMEs in order to benefit from the reduced corporate income tax rate. As from tax assessment year 2021 (i.e. income 2020 if the accounting year matches the calendar year), the standard corporate income tax rate will be further reduced to 25%. For SMEs, the reduced tax rate will be further reduced to 20% on the first tranche of EUR 100,000, provided the above- mentioned minimum annual remuneration is paid to at least one of the company’s directors.
Digital revolution : What about lawyers?
Patrick Conrads
December 15, 2017
Like many other professions, lawyers are affected by the digital revolution. Technological tools and artificial intelligence lead to simplified and automated procedures that upset/subvert/shake our traditional ways of working. In addition, lawyers no longer have a monopoly of knowledge, which is now open, free and available to all. By opening up knowledge, the digital revolution with its portability tools is pushing for transparency, responsiveness and collaborative mode.
The profession is now faced with multiple challenges: economic sluggishness, globalized competition, artificial intelligence, the emergence of an increasingly sophisticated outsourcing, transformation of some of its know-how into commodities. It is also competing with other professions, that is why it is now essential to focus our efforts on driving change.
Although the brand „lawyers” carries many guarantees of quality of service (strong ethics, demanding discipline, guaranteed competence), these essential elements are not sufficient to allow the profession to build its attractiveness and profitability model without holding account of the expectations expressed by consumers.
Lawyers must therefore question the value of changing the way they work, interacting with their clients and with their various partners (jurisdictions, administrations, other professionals). Innovation requires to increase the risk culture and also requires phases of implementation and adaptation that are not always compatible with the profitability requirements of firms.
Despite this, digital electroshock must be seen as a real opportunity for lawyers, the challenge being to think about how to take advantage of it.
Indeed, advances in new technologies offer many advantages: saving time, money, quality and efficiency in the collection and pre-processing of legal information, for example.
1.
New tools of work develop as well as predictive justice. With softwares, it is possible to calculate the probabilities of success in court and to predict the amount of compensation that clients are likely to receive. These softwares recover a maximum of rendered decisions and allow a quantification of the legal risk. Predictive justice is a step forward for litigants because they can have an idea of the chances of success of their action, but the software remains only tools.
However, the use of simple technologies makes it possible to increase accessibility without weighing on the lawyer’s agenda, for example by setting up extranets (Internet tools allowing the storage and the sharing of documents: contracts, procedure, company documents, or calendar sharing). Technology can therefore be a source, under certain conditions, of increased proximity and better service (doctrine.be, droitbelge.be).
In addition, new tools that are now financially accessible make it easier to generate simplified legal documents and platforms for linking lawyers and litigants (my-lawer.be). Platforms also appear for mediation or amicable dispute resolution with reasonable stakes in a diversion perspective.
Other tools exist only at a rudimentary stage but should multiply rapidly, like chatbots. It is a program that incorporates an algorithm to establish short conversations between a user and the website. Also known as „conversational agents”, these programs will develop an increasingly sophisticated language and draw on an increasingly rich mass of information (associated with the recurrence of certain frequently asked questions) to allow a first sorting in the questions asked by the litigants: the user asks a question „in natural language” and gets an answer as soon as the machine has identified the question.
Computer programs of artificial intelligence are also developing. The best known in the legal world is Watson, a program developed by the IBM company, which responds to the questions asked in natural language. A specific version of Watson has been developed specifically to answer legal questions: Ross40, which has been „hired” by a dozen law firms. This program is not only able to find among millions of documents a legal answer to a question asked, but also has a system of learning: It self-improves as it works.
These Artificial Intelligence tools will eventually replace the lawyer in his job as a legal technician to extract relevant references to the case. The lawyer will focus on the strategy and the human aspect of the case, which is at the heart of his job.
2.
On the other hand, the digital revolution has also changed the requirements of customers who are better informed, Google being their first consultant. They want simple answers in fast deadlines. Clients’ legal needs are evolving into turnkey solutions, which forces us to reinvent our services and the relationship with our clients. Two major implications are to be taken into account:
The first one concerns the standardization of some of our services: Regular products such as general sales conditions, company statutes, a rather simple work contract are now „standardizable”. Faced with the already active presence of online platforms with more standardized services, we can see that the client now accepts the idea of reducing some of his expectations (especially the „tailor-made” dimension) to satisfy an immediate need or constraint budget. The lawyer will have to accept this phenomenon of standardization of some of its services, because of the appearance of the digital.
The second implication relates to the phenomenon of rating benefits: It is not unlikely that in the long run, there will be indications on lawyers in relation to defined criteria as its efficiency or the respect of the budget. This notation can be unfounded, unfair or simply artificial, but it is a phenomenon inherent to the Digital. If we do not accept this phenomenon of „desecration” of certain aspects of our profession, then we will undergo this digital change rather than accompany it.
Customers have become digital consumers and are looking for more agile solutions for communication, pricing, listening and content. They are more and more demanding which has consequences on the valuation of the service, on the prices practiced and on the way the right is approached as product. The client wants to become an actor of his file and the lawyer becomes neither guide nor companion of road.
The challenge is to learn how to serve them the way they want. The need for legal advice is immense in our complex society, and machines can offer us more resources and time to put the human in the center. Too many lawyers today perceive innovation as a threat rather than an opportunity. However, it is by developing a prospective vision of its activity and refocusing on its added value that the lawyer of tomorrow will be the winner of the digital revolution. The client will no longer come to his lawyer to obtain an obscure or abstract legal answer. He will come to share a common experience with his lawyer and together they will work out the best practical solution to adopt.
3.
Therefore, the lawyer will have to change his practice. He will have to have the tools of Artificial Intelligence while remaining focused on his primary role, that of consulting. Also, measuring risks, listening, empathy, pedagogy, ethics, deontology and creativity will remain constant. Explaining the issues to the client, diagnose, and find solutions cannot be done only through a machine, the lawyer will always use his skills to know whether it is advisable to follow or not the opinion of the machine given as an indication.
Artificial Intelligence should not be seen as competing with human intelligence, but as complementary. It will always take humans to think the rules, to elaborate them, to do justice and to apply the law. Even though people have access to information, they do not have the skills to understand it. The lawyer will always be indispensable to interpret the rules of law. He also has an increasingly important role to play regarding the psychological, social and human support of his clients. An innovative lawyer does not see justice as an end but as a way to do his job better. He uses technology to rethink and improve the key elements of his business and his added value.
In France, the process of change is already well underway. Lawyers expand their field of action: they collaborate with other regulated professions, manage transversal projects, and develop innovative tools.
Emmanuel Macron initiated the movement by passing a bill in 2015 that opens the door to interprofessionality, external financing and authorization to market related goods and services on an ancillary basis. „These adaptations are at the origin of a remarkable dynamic of creation of new structures and new technological solutions „. (Stanislas van Wassenhove, Lawyer And Initiator Of The Digital Electro-Choc Conference)
In Belgium, the Bars (Avocats.be and the OVB) have created in 2016 a digital platform to put lawyers in touch with the courts and tribunals. A year later, young lawyers launched the Incubateur.legal to educate lawyers about new technologies and innovation;
In addition, the European Incubator of the Brussels Bar (INCUEBRUX), which aims to complement the incubator of the O.B.F.G, has just been created. This incubator, which wanted to be mixed and international, has for mission to ensure the training and the information of the lawyers of the bar of Brussels on the technological developments which concern them, to be a place of exchanges and debates on the modernization and the reform of the legal profession, to act to ensure that the bar is committed to the digital revolution in accordance with its values and to federate European initiatives on technological innovation and its implications for the profession. Several projects are already in preparation (http://www.incubateur.brussels).
4.
In conclusion, the developments in artificial intelligence offer the lawyer new perspectives to manage knowledge, organize data, and anticipate the outcome of litigation through predictive tools and thus free up time to accentuate its advisory role.
Beyond certain prerequisites (finance, IT, communication, project management), the lawyer will open by developing his human and relational skills: listening, empathy, acceptance of failure, creativity, agility, adaptability, management of emotions, letting go and sharing experience. Emphasis will be on well-being rather than know-how.
For lawyers, being interested in innovation, not only technological but also economic, managerial and societal is a prerequisite for the necessary transformation to ensure the sustainability of the essence of the legal profession: to defend and advise the human.
Some people think that the technique is neutral and that everything depends on the way users control it. Others, highlight the dangers of any technical progress, including digital. Without wanting to be able to decide this debate, we can highlight the following certainties:
• Digital technology can make people aware of their legal needs and contribute to the knowledge of the law, which is an essential element of the rule of law.
• For professionals, the eruption of digital is a threat because the benefits become interchangeable, and are judged by customers only in terms of price, which becomes the main criterion of choice.
• Digital represents a world of opportunities: by breaking down the barrier of inaccessibility, it makes it possible to come into contact with non-consumers and thus gain a lot in productivity. Similarly, getting rid of tedious, non-value-added tasks also increases productivity.
As an indication, here are the digital proposals from the report by Kami Haeri, a lawyer at the Paris Bar, on „the future of the legal profession”:
• Develop a culture of innovation, integrating the concept of entrepreneurial risk into the lawyer’s learning;
• Sensitize law firms to new offers for their clients, including the provision of „intelligent forms”, general legal information („freemium” offers);
• Sensitize law firms to develop a branding strategy that goes beyond the name of the founders and ensures the firm’s outreach through other forms of brand expression;
• Introduce in the management of firms, new practices and new tools borrowed from the world of business: develop work in project mode, assign assignments to younger employees in the development of the firm, set regular interviews and, in any event bi-annual;
• Professionalize the management of firms, favoring the management of non-lawyer firms, such as secretaries general.
In short, lawyers are experts at controlling the risks of their clients and they have developed sharp specializations. The skills of excellence must today be coupled with the skills identified as those of the future by the last Davos Economic Forum: an entrepreneurial attitude, a listening posture, open to project management and multidisciplinarity as well as collaborative methods.
INTERNET SOURCES :
http://www.justice.gouv.fr/publication/rapport_kami_haeri.pdf https://www.lecho.be/actualite/archive/L-avocat-3-0-augmente-par-la-technologie-libere-descarcans-du-passe-et-forme-a-l-humain/9961894 https://revuedesjuristesdesciencespo.com/2017/03/07/lavenir-de-la-profession-davocat-entretienavec-maitre-kami-haeri/
http://www.lalibre.be/economie/digital/la-french-tech-veut-rayonner-a-bruxelles588e24bacd70e747fb663703
http://openlaw.fr/index.php?title=Open_Law,_le_Droit_Ouvert https://blockchainfrance.net/2016/01/28/applications‐smart‐contracts/ http://www.coindesk.com/ipo‐and‐insurance‐projects‐win2000‐at‐blockchain‐hackathon/ http://www.rossintelligence.com/
http://www.lemonde.fr/pixels/article/2016/05/27/une-intelligence-artificielle-fait-son-entree-dansun-cabinet-davocats_4927806_4408996.html
http://www.dayone-consulting.com/fr-actualites-paris/etude-lpo-lexternalisation-des-prestationsjuridiques-2/