European Circuit Blog

“Mediation: Extrajudicial solutions for cross-border disputes” – 14th March 2019

LOCATION: BAR LIBRARY AT THE INN OF COURT OF NORTHERN IRELAND, BELFAST

by Abigail Holt
   

On 14th March, as Westminster writhed with conflict and Stormont was silent, the European Circuit of the Bar was generously hosted by the Bar of Northern Ireland in their elegant Bar Library HQ in Belfast on the topic of the use of mediation in public law cases and the benefits of mediating cross-border litigation.

John Larkin QC (Attorney General of Northern Ireland) and Sir Paul Girvan PC (Lord Justice of Appeal of the Court of Judicature of Northern Ireland – retired) kicked off the debate by setting out the particular sensitivities around the appropriateness of mediation for resolving public law cases, which included issues such: that the public interest is not something which lends itself to a form of negotiation; that there is a perceived culture of Government and State bodies being slow to admit fault; and an understandable reluctance of Judges to be involved in mediating disputes whilst they are also charged with giving anxious scrutiny to evidence in the same dispute, or a similar one or one involving the same parties.

Juxtaposed, Administrative Judge Friedrich-Joachim Mehmel (Administrative Judge and President of the Hamburg Higher Administrative and Constitutional Courts) gave a fascinating and contrasting insight into the approach in Germany, in his area at least. Having apologised for attending in his (very smart) jeans (after a long and weary journey) he focussed first on communication and the failures and limits of the adversarial system to resolve legal disputes in a holistic way. Prima facie, it seemed counter-intuitive to a room full of Solicitors, Barristers and very senior ex-advocate Judges to say that the judicial process embodies and is constantly limited by communication failures, but he pointed out the blindingly obvious, namely that: disputes resulting in litigation are often caused or maintained by communication failures; ego conflict is often at the heart of disputes; that decisions to litigate are so often founded on failures to acknowledge and respect others; and that legal process was pressurised by time-constraints. He opined that litigation often embodied emotional problems and that attempts to apply cool rational legal principles to “fix” emotional situations was unsatisfactory. He highlighted that public law matters were often highly emotionally charged. He then went on to describe how in the German system there was the facility for a Judge managing a case to refer an issue within that case to another judicial colleague to deal with (a) discrete issue(s) which was amenable to mediation in a private satellite “bubble” outside the “main” litigation track. The mediator-hat-wearing-judge seemed to me to be very intellectually attractive route to justice. However, it was also noteworthy that the German system was prepared to prioritise this new culture and approach to the extent of providing the “in house” mediation service free of charge to the litigants.

Hugh Mercer QC (Chair of the Brexit Working Group of the Bar and Chair of the CCBE European Lawyers’ Committee), Brian Fee QC (of the Bar of Northern Ireland and of the Bar of Ireland), John Sturrock QC (Distinguished Fellow of the International Academy of Mediators) who practices, inter alia, Scotland, and Colm Ó hOisín SC (Bar of Ireland) then shared their vast experience of mediation, particularly bringing out the adaptability of mediation as a tool in different cultural contexts. They also enunciated the advantages of mediation over arbitration for certain cases and gave examples of experiences of practicalities regarding the use of mediation in particular jurisdictions. Switzerland, Ireland and the Middle East were cited in examples. UN Singapore, New York and CEDR were referred to as different mediation models. Enforcement and notarised agreements were discussed.

As we live through huge political and social turbulence on a global scale, it was encouraging and a privilege to learn from those going with the flow of globalisation and evolving new skills to adapt. I was reminded of Professor Ronald Dworkin and his thoughts on law as technique. People talk about mediation being a further “weapon” in the competent lawyer’s “armoury”. However, given, that we are saturated with conflict we could do no better than to heed Judge Mehmel and make greater use of mediation to address the emotional dimension which so often provides the rocket fuel behind disputes.

The Circuit would like to thank Michael Bready of the Belfast Bar in particular for setting up and organising this event.

  

Credit photo: Abigail Holt. We are grateful to all speakers for allowing publication.

Posted by: Cécile Perrault

“Brexit: Lessons from the Court” – 24th January 2019, Edinburgh

Event hosted by the Faculty of Advocates and the European Circuit.

by Abigail Holt

The best laid schemes o’ mice an’ men…. 

On Thursday 24th, as Edinburgh was gearing up for Burns Night 2019, the European Circuit of the Bar had the privilege of being hosted at the Faculty of Advocates for a fascinating legal supper of Wightman [C-621/18] haggis and Brexit neeps, along with the lyrical highlights of the UK Withdrawal from the European Union (Legal Continuity)(Scotland) Bill – a reference by the attorney general and the advocate general for Scotland (2018) [2018] UKSC64.

Hugh Mercer QC provided the starter. With remarkable clarity and simplicity he condensed the essential ingredients of: the EU Referendum Act 2015;Shindler v Chancellor of the Duchy of Lancaster [2016] EWCA Civ 469; Shindler v Council [T-458/17]; Miller [2017] UKSC5; R (Webster) v SoS for exiting the EU [2018] EWHC 1543 (Admin); R (the Good Law Project) v Electoral Commission, Vote Leave Ltd, Darren Grimes [2018] EWHC 2553 (Admin); R (Good Law Project, Moly Scott Cato MEP) v SoS for exiting the EU [2018] EWHC 719 (Admin); District Court Amsterdam: Does UK Exit automatically deprive UK citizens of EU citizenship and conditions/restrictions/retention of rights. In any other circumstances’ Hugh’s offering would have been a meal in itself. The audience did not complain of legal indigestion and were quite prepared for further jurisprudential nourishment.

Morag Ross QC then treated us to the main course; a comprehensive explanation of Wightman and the adventure of bringing this axiomatic case before the Court of Session and then the Court of Justice in Luxembourg. Given that this case might just save the UK’s social and economic bacon, against the threat of the more extreme Brexit regimes contemplated in some quarters, it was also important to listen to Morag’s analysis of the legal gaps, silences and further questions raised by Wightman.

Finally James Mure QC managed the near impossible feat of spicing up and making entirely palatable the intricacies of the UK Withdrawal from the European Union (Legal Continuity)(Scotland) Bill. He illuminated the problems for devolution and what it meant in the context of Brexit, especially when the Scottish attitude to European law and values as demonstrated by the 2016 referendum result were decisively remain. (Oh the irony the UK government argued against Scottish independence in 2014 on the basis that such independence would mean loss of member state status).

Afterwards we enjoyed hospitality and lively conversation with colleagues grappling to understand the consequences of Brexit for their practices, their communities and the rule of law. However, Robert Burns in “To A Mouse” might prove to be the last word on Brexit: The best laid schemes o’ mice an’ men Gang aft a-gley, An’ lea’e us nought but grief an’ pain For promis’d joy.

Credit photo: Abigail Holt and the Faculty of Advocates. We are grateful to all speakers for allowing publication.

Posted by: Cécile Perrault

 

 

Annual Conference 2018 – Stockholm

This year the European Circuit hosted its Annual Conference in Stockholm on the 20th – 21st of September 2018, with our key conference focus being e-Justice.

For the first time this year we offered an additional add on option for Thursday 20th of September, which was an Arbitration event with a fantastic panel of speakers & moderators. This event was hosted by Arbitration Ireland, the Stockholm Chamber of Commerce & The European Circuit.

As per tradition, our annual conference began with a drinks reception at the British Ambassador’s residence, which were generously sponsored by Vinge.

THURSDAY 20TH SEPTEMBER 2018

Arbitration Event Hosted by the Stockholm Chamber of Commerce, Arbitration Ireland & The European Circuit

The stimulating discussion covered various themes, including “The future of European investment disputes” and “Cross cultural teamwork in international disputes.”  Judge Christopher Vajda, Judge of the European Court of Justice was one of the moderators, as was Mr Justice David Barniville SC, Designated Arbitration Judge of the High Court of Ireland. They were joined by an impressive panel of speakers, as our programme outlines below.

SPEAKERS FOR THURSDAY INCLUDED:
  • MARLEN ESTÉVEZ (PARTNER WITHIN THE LITIGATION AND ARBITRATION LAW DEPARTMENT AT ROCA JUNYENT)
  • GORDON MARDELL QC, 20 ESSEX STREET, SPECIALIST IN INTERNATIONAL LITIGATION AND ARBITRATION
  • BARBARA DOHMANN QC, BLACKSTONE CHAMBERS, SPECIALIST IN INTERNATIONAL ARBITRATION.
  • COLM Ó HOISÍN SC, BAR OF IRELAND, ARBITRATION IRELAND
  • PHILIPPA CHARLES, HEAD OF INTERNATIONAL ARBITRATION AT STEWARTS LAW LLP
  • COLLEEN HANLEY, 20 ESSEX STREET, BARRISTER WITH PARTICULAR FOCUS ON SHIPPING, COMMODITIES AND INTERNATIONAL ARBITRATION
  • JAMES HOPE, HEAD OF DISPUTE RESOLUTION AT VINGE
  • PATRICIA SHAUGHNESSY, STOCKHOLM UNIVERSITY
PROGRAMME

13:45 – REGISTRATION

14:00 – OPENING ADDRESS – Kristin Campbell Wilson, Deputy Secretary General, Swedish Chamber of Commerce Arbitration Institute

 

 

 

 

(Credit photo: Arbitration Institute of the Stockholm Chamber)

14:30 – 14:45 – THE FUTURE OF EUROPEAN INVESTMENT DISPUTES

Moderator – Judge Christopher Vajda, Judge of the European Court of Justice

SPECIFIC DISCUSSIONS INCLUDED: Post Brexit dispute resolution mechanism; ongoing work of UNCITRAL in relation to the EU proposal for a Multilateral Investment Court; Relationship of FTA and BIT/MIT law with EU law – where are we now?

16:15 – 17:45 THE ARBITRATION MELTING POT: CROSS CULTURAL TEAMWORK IN INTERNATIONAL DISPUTES

Moderator: Mr Justice David Barniville SC, Designated Arbitration Judge of the High Court of Ireland

SPECIFIC TOPICS INCLUDED: Arbitrator perspective; Practitioner perspective; The Institution: Stockholm Chamber of Commerce

18:15 Drinks reception at British Ambassador’s residence, generously sponsored by Vinge.

FRIDAY 21ST SEPTEMBER 2018 –  EUROPEAN CIRCUIT ANNUAL CONFERENCE

Hosted by The European Circuit at the Swedish Bar Association

The Friday morning began with a Court Visit before registration followed by a variety of topics including “Litigating Big Data” and “Digital Justice: Tools & Challenges”, with speakers including Sir Ernest Ryder (Senior President of Tribunals), AG Eleanor Sharpston (Advocate General at the European Court of Justice), David Cairns (British Ambassador to Sweden) and Seamus Woulfe SC (Attorney General in Ireland)

We closed the conference with drinks, dinner & discussion at Grodan Restaurant.

SPEAKERS & MODERATORS FOR FRIDAY INCLUDE:
  • AG ELEANOR SHARPSTON, ADVOCATE GENERAL AT THE EUROPEAN COURT OF JUSTICE
  • SIR ERNEST RYDER, SENIOR PRESIDENT OF TRIBUNALS
  • ROBERT O’DONOGHUE QC, BRICK COURT CHAMBERS
  • MICHAEL COLLINS SC, BAR OF IRELAND
  • JAANUS TEHVER, VICE CHAIRMAN OF THE ESTONIAN BAR ASSOCIATION
  • CHARLES CIUMEI QC, ESSEX COURT CHAMBERS
  • RUPERT PAINES, 11KBW
  • EILEEN BARRINGTON SC, BAR OF IRELAND
  • FERGUS RANDOLPH QC, BRICK COURT CHAMBERS
PROGRAMME

08:45 – 10:30 – COURT VISIT, SVEA COURT OF APPEAL

  

11:00 – 11:40AM REGISTRATION & OPENING ADDRESS – Seamus Woulfe SC, Attorney General in Ireland

11:40 – 12:00PM – KEYNOTE ADDRESS – “MAINTAINING & DEVELOPING JUSTICE IN EUROPE” – AG Eleanor Sharpston, Advocate General at the European Court of Justice

12:00 – 13:30 – DIGITAL JUSTICE: TOOLS & CHALLENGES

13:30 – 14:30PM – LUNCH

14:30 – 15:45 – LITIGATING BIG DATA

16:15 – 17:15 – GDPR & E-PRIVACY – TOP TIPS FOR ADVOCATES

17:15 –  AGM

19:00PM – DINNER & DISCUSSION – GRODAN, GREV TUREGATAN 16, STOCKHOLM

If you are interested in becoming a member of the European Circuit, please do not hesitate to contact us at [email protected] .The next annual conference will take place in Rome – look out for details on our website.

Credit photo: Abigail Holt, Amy Scollan and Michael Wilkinson. We are grateful to all speakers for allowing publication.

Posted by: Cécile Perrault

 

 

“OPPORTUNITIES FOR LAWYERS POST-BREXIT” – 5th July 2018, Manchester

by Abigail Holt

On a sweltering evening when, thankfully, we were not competing with the World Cup, the European Circuit came to Manchester chaired by Hugh Mercer QC in order to discuss whether Brexit would bring legal practitioners more opportunities; more happy Mondays or whether we’d be wailing “heaven knows I’m miserable now” after Brexit.

Fergus Randolph QC (Brick Court Chambers) kicked off explaining where the Brexit process was up to in terms of the European Union (Withdrawal) Bill 2018 and the fault lines, if not chasm, running between it and the EU’s formal Article 50 negotiating position.

Sarah Crowther QC (Outer Temple Chambers) gave a concise explanation of Henry VIII powers, and the use to which they would be put by government as part of the Brexit process to enable ministers to amend or repeal primary legislation (which has already been agreed by Parliament) using secondary legislation which may not be subject to parliamentary scrutiny. Sarah emphasised the volume of legislation that was going to need to be filtered through government post-Brexit and noted that Henry VIII powers was a mechanism whereby government could have a massive “spring clean”. However, as was emphasised by questions from the audience, the potential danger was that sheer size of the task of the housekeeping exercise and which would mean that significant legal changes would be brought about without being properly scrutinised by Parliament.

Manchester barrister Abigail Holt talked about EU citizens’ rights. She explained that immigration law in relation to EU citizens’ rights had gone down a completely different track to domestic immigration law ever since the UK joined the European Community. She also noted that, whilst on the face of it, the proposed immediate changes and proposals for EU citizens already in the country during the transitional period did not appear to be too controversial, the proposed changes would double the work of the Home Office overnight and significant logistical problems had already been noted by the Home Affairs Select Committee in their report on delivering Brexit.

Alex Batesmith barrister and academic at Liverpool University spoke about the importance of instilling in the next generation of legal students and practitioners proper respect for evidence, experts and empiricism. He also said that the opinions of lawyers and the legal profession would be better taken into account if legal practitioners were perceived to be closer to the wider community rather than being seen as simply motivated by commercial considerations.

Hugh Mercer QC (Essex Court Chambers) spoke about the loss of rights which Brexit envisaged. He listed some of the most glaring potential losses, so that the question whether Brexit would be worthwhile and resulting in a potential net gain of legal rights effectively asked itself. The overall conclusion seemed to be that it was not t all clear what the final outcome would be from the perspective of legal rights and how what would come after exit day would compare with our current arrangements.

As to the issue of whether Brexit would provide opportunities for lawyers, Fergus Randolph perhaps best summed the situation up when he said that there “was gold in them there hills”. However, so far as he was concerned, it was tainted.

  

Credit photo: Abigail Holt. We are grateful to all speakers for allowing publication.

Posted by: Cécile Perrault

 

 

“Written Constitutions – experiences and challenges.”

by Abigail Holt & Athena Markides 

Brenda from Bristol may have put it best: “not another one” is perhaps the only reaction to a forthcoming general election ever to have gone viral.

This is a nation ostensibly tired of politics. Tired of experts. Tired of being made to make difficult decisions. So is this is a sign that we need a written constitution? And if we do, is now the right time for one?

These are complicated and highly charged questions, and on the 4th May the European Circuit was privileged to hear these points addressed by some of Europe’s foremost authorities on the topic.

Lord Mance chaired a panel comprised of Sir Jeffrey Jowell QC, Professor Stefan Vogenauer, Professor Eoin Carolan and Professor Alison Young, each of whom spoke on the subject “Written Constitution – Experiences and Challenges” before taking questions from the audience. In the best legal tradition, the speakers were split and individually persuasive in their views.

It was hard not to sympathise with Sir Jeffrey Jowell’s assessment that a written constitution could offer a form of clarity, authority and accessibility which our current system does not.  UK lawyers, let alone the public at large remain unfortunately but understandably ignorant of the jurisprudence of constitutional law. This might be otherwise if the starting point were a slim paperback with which every school child – and indeed every politician, newspaper columnist and lawyer – could be provided.

Sir Jeffrey Jowell also emphasised that a written constitution could be used to entrench and safeguard commonly held values and those rights which we consider to be inalienable. It would provide a framework for decision-making, rather than being an instrument of decision making itself, and thereby subject to political imperatives. In this regard, Sir Jeffrey characterized a written constitution as “a tie imposed by Peter when sober on Peter when drunk.” At a time when Peter appears to be poking at his left ear and proclaiming that he has found his nose, it is tempting to lock the fine china out of his reach.

Professor Vogenauer offered his insights regarding the German constitution. He noted that the German consensus was that their written constitution was a source of national pride and a “good thing”. Professor Vogenauer acknowledged, however, that a written constitution is not a panacea. It can only ever be as good as its contents and those who preserve and apply them. It is easier to protect human rights by restricting those actions which undermine them than to legislate for the provision of social rights. A successful written constitution might therefore disappoint the aspirations of its proponents. Professor Vogenauer concluded that a cost-benefit analysis ought properly to be incorporated within a written constitution to ensure that it was able to change and remain flexible and responsive, whilst simultaneous safeguarding those rights which were contemporaneously considered sacred.

Professor Carolan adopted the theme of practicality, emphasizing the limits of language as a tool to uphold uplifting public values and reiterating that drafting in loose language can be expensive for governments. In so doing, he reminded the room that language alters over time, often unpredictably; a written constitution would need to be sufficiently flexible to avoid it becoming a tool of oppression. Professor Carolan also highlighted the perceived lack of trust in experts, elites and public authority figures in the UK at present. As perhaps the most natural proponents of a written constitution, these figures would be unlikely to receive a welcome reception. A written constitution perceived as illegitimate by the majority- or even a significant minority of, say, 48% – is arguably even worse than the current system. There are significant logistical challenges in organizing the consultations which would be a necessary precursor to a written constitution: enshrining the status quo is not a rallying cry for concentrated political action. The possibility of fomenting change might garner more support, but it is far from clear that that those competing objectives could solidify into support for any single set of proposals.

Professor Young reinforced the view that “elites” are a damaged currency at present. National divisions create the real risk that advocates for constitutional change will find their views discounted on the basis that they are either a “Leaver” or a “Remainer”. As campaigning becomes increasingly partisan and the electorate is asked to define itself as much by who it opposes as by who it supports, it is hard to define the fundamental values which might form the basis of a written constitution. It was also easy to sympathise with Professor Young’s view that Parliament is rather preoccupied at present, and would be unlikely to welcome significant constitutional debate with the care, time or investment it deserves.

I could not help but share in Sir Jeffrey’s enthusiasm for the benefits of a written constitution. But as the talks progressed, I found myself increasingly convinced that at this precise moment in time, we would be unlikely to reach agreement on any constitution worth having.

It was a recurrent theme amongst the speakers that countries adopt written constitutions following a tipping point: some moment of fundamental change, typically war or revolution. No one can deny that the United Kingdom is facing significant constitutional upheaval. No one can deny that there are advantages to a written constitution. The question is whether we should wait for Peter to sober up, or whether we need to act now before he finishes the bottle.

 

 

Annual Conference 2017 – Brussels

By ATHENA MARKIDES

Earlier this year, I was asked whether I would like to attend the European Circuit’s annual conference on behalf of the Young Barristers’ Committee.

It was a tempting prospect.

I have long had an interest in EU law. The opportunity to visit Dublin and watch a line-up of EU law heavyweights discussing the most important developments of the day (or indeed of the decade) seemed too good to miss. Plus, attendees were being offered the opportunity to tour local courts, with the entire conference being rounded off with dinner at the Honourable Society of King’s Inns. I had never been to Dublin before, and this seemed as good a time as any to head over. So I agreed.

“Great,” I was told. “Oh and by the way, we want you to give a short talk. Something about the challenges for juniors looking to develop an international practice. That’s all right, isn’t it?”

As a very junior barrister with a common law and commercial practice, I felt well equipped to discuss those challenges. More difficult, however, would be any discussion regarding achievements. Yes, I have an LLM and a keen interest in EU law. Like many others, my practice includes some elements of ‘proper’ international work – advising on conflicts of laws and involvement in a couple of international arbitrations – but I’d still be an obvious outsider, wouldn’t I?

I needn’t have worried – I had a fantastic time.

Conference organiser, Gerard McDermott QC, was the first to put me at ease, telling me how he had successfully incorporated international elements into his personal injury practice. This wasn’t something which had been handed to him on a plate by his Chambers (in fact it hadn’t even been on the menu); he had identified this as an area of particular interest and then worked solidly to turn it into a cornerstone of his practice.

This was a theme which resonated throughout the conference. Covering an enormous range of topics – from court reform across Europe, to cross-border traffic accidents, appellate advocacy in the US, and a perspective from the Irish judiciary – the conference well-illustrated the international elements relevant to a range of practice areas. The conference organisers also had at least one eye firmly on the future, with talks about the online court and the increasing use of technology in dispute resolution.

But above all, this conference stood out because of the community which attended it: friendly, welcoming and very interesting. In common with the best smaller conferences, attendees left buzzing with ideas and information (and probably champagne too…) but also with the sense that foundations had been laid for potential future friendships as well as working relationships.

The European Circuit aims to support and facilitate the exchange of experience among lawyers with a cross-border practice. And the conference absolutely achieved that aim. It was fascinating to compare my own experiences as a junior barrister with those of juniors from the Northern Irish and Republic of Ireland bars. My contemporaries and I may have concerns about attracting work, pleasing our clerks and getting paid on time, but this is nothing to the experience of our self-clerking counterparts across the Irish Sea.

The conference was also attended by a contingent from the American Counsel Association and I had a great time learning more about US insurance law, the American judiciary and how juries are used to set damages in civil trials in Connecticut.

And this fed into yet another broad theme: that of openness, awareness and of a willingness to embrace progress. Our domestic legal system is on the brink of significant change. Brexit is an obvious but not exclusive harbinger of a new order: the Joint Vision Statement produced by the Lord Chancellor, Lord Chief Justice and Senior President of Tribunals this September is a radical manifesto on any account.

It is at times like these that I think all practitioners benefit from an appreciation of the range of dispute resolution mechanisms which are out there and operational across the world. In terms of personal and career development it is obviously vital to be open-minded but also well-informed. For the young practitioner, conferences like this one offer a great chance to meet like-minded (and often better-minded) people, to hear about their experiences in work and in life more generally and to gain a broader perspective.

All in all, the conference was a terrific two-day event. It has galvanised me to get more involved with the Circuit and to keep developing the international elements of my practice. I also found the conference happily uplifting. At a time when people may be feeling less international and more divided, it was a striking reminder that we can and do benefit from an international outlook.

If you are interested in becoming a member of the European Circuit, please do not hesitate to contact me at [email protected]  The next annual conference will take place in Brussels – look out for details on the European Circuit’s website http://www.europeancircuit.com/

 

 

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