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How can we outline the discussion on the law and practice of international arbitration? What is the legal process for the drafting of the arbitration agreements or the enforcement of arbitral awards? Long-time international arbitrators Constantine Partasides, Alan Redfern, and Martin Hunters — co-authors of Redfern and Hunter on International Arbitration: Fifth Edition with Nigel Blackaby — sat down with the OUPblog to discuss the latest developments in their field. Watch the following videos to learn more about current views on international arbitration and what changes they expect to see in the future.

How did the idea of writing a book come about?

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What challenges are arbitrators facing now?

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How do you view the future of international commercial arbitration? 

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Nigel Blackaby, Constantine Partasides, Alan Redfern, and Martin Hunter are the authors of Redfern and Hunter on International Arbitration: Fifth Edition. Nigel Blackaby is one of the partners of the international arbitration group at Freshfields Bruckhaus Deringer in Washington, DC. Constantine Partasides is a one of the partners of the international arbitration group at Freshfields Bruckhaus Deringer in London. Alan Redfern is the barrister and international arbitrator at One Essex Court Chambers in London. Martin Hunter is currently a barrister and international arbitrator at One Essex Court Chambers.

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By Candida Saunders

What is a false allegation of rape? At first, this might appear to be a daft question. Reflecting the general tendency to think of the truth or otherwise of allegations in reductive terms of being either true or false, the meaning of “false allegation” is commonly taken to be self-evident. A false allegation of rape is an allegation that is false; the rape alleged did not, in fact, occur. In the abstract, this seems a perfectly logical and sensible approach.

In practice, however, there is much more to making a formal rape complaint than the simple and solitary assertion, “I was raped”, or, where the identity of the accused is known, “I was raped by X”. Complainants’ statements comprise multiple assertions of fact detailing when an alleged incident happened, where it happened, how it happened, and at whose hands, as well as giving an account of the events and circumstances leading up to and following the incident. For criminal justice professionals, whose priorities are trial-focussed, the question of veracity extends to each and every statement of fact – the who, what, where, when, how and so forth – contained in a complainant’s account. As complainants may conceal or actively lie about any one or more of these facts, the messy reality is that some rape allegations may be more (or less) true (or false) than others. This raises a conceptual question: is an allegation “false” because it’s not genuine, or because it’s not true?

Of course, there’s a certain degree of overlap between these two approaches. Presumably, we would all agree that the alleged rape which is, in fact, a complete fabrication of something that never happened is a false allegation. But how would you describe the allegations of a complainant who, for example, reports being ambushed at midnight by a knife-wielding stranger, dragged into nearby bushes and raped, when CCTV footage, witness statements, and scientific evidence prove unequivocally that the complainant and accused had, in fact, spent the evening drinking together in various local bars and that sex took place at the accused’s home? Or the allegations of a rape complainant who maintains that she (or he) was stone-cold sober at the material time, when a toxicology report shows that, in fact, the complainant had consumed a significant amount of alcohol and a fair amount of cocaine, and witnesses state that she had done so voluntarily? Clearly, the fact that a complainant has lied about some detail or other in their statement(s) does not mean that there was, in fact, no rape. It does, however, mean that their allegations aren’t (entirely) true. Despite a genuine rape incident at the heart of the allegation, the complainant’s account contains assertions of fact that are demonstrably false. And the falsehoods in a complainant’s statement(s) have potentially catastrophic implications for a prosecution. If the complainant, almost invariably the prosecution’s chief witness in a rape trial, has a documented history of providing evidence which, although sworn on pain of prosecution to be true, is, in fact, false, then a prosecution is unlikely to proceed. There may well have been a rape but, in the absence of compelling prosecution evidence independent of the complainant, the chances of proving beyond reasonable doubt that there was are slim.

Regardless of one’s conceptual approach, then, referring to the alleged rape that didn’t happen as a “false allegation” is uncontroversial. The issue really is whether the rape that didn’t happen the way the complainant said it did might also be described as false. And that is an issue on which reasonable minds might – and, as I have recently argued, do – reasonably differ. “Well,” you may say, “so the ‘false allegation’ is a contestable concept. Big deal. So what?” Well, it is a big deal because nobody’s really discussing what “false allegations” are and yet people keep trying to count them! There’s a fairly extensive research literature and broader critical debate, spanning several decades, on the prevalence of false rape allegations. The prevailing academic orthodoxy insists that false allegations of rape are rare, or at least no more common than false allegations of other offences, with those claiming otherwise – usually criminal justice professionals with first-hand experience of investigating and prosecuting rape cases – quickly dismissed by the mainstream as misogynists and sceptics. But how one conceptualises and defines the “false allegation” has a direct, and often striking, effect on how many are observed. Despite repeated claims to the contrary, research findings are consistent only in their inconsistency. Estimated prevalence rates for false rape allegations range from the sublime to the ridiculous. So the contestable nature of the concept of the “false allegation” matters because divergent estimates may reflect methodological rather than attitudinal factors. Put simply, the various protagonists may not all be counting the same things.

Dr Candida Saunders is a Lecturer in Law at the University of Nottingham. Her article, The Truth, the Half-truth and Nothing like the Truth: Reconceptualizing False Allegations of Rape, appears in The British Journal of Criminology where you can read it in full and for free via the link above.

The British Journal of Criminology: An International Review of Crime and Society is one of the world’s top criminology journals. It publishes work of the highest quality from around the world and across all areas of criminology.

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Image credit: Police Lantern In England Outside The Station. By Stuart Miles, iStockPhoto.

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By Richard Susskind

The uncharitable might say that I write the same book every four years or so. Some critics certainly accuse me of having said the same thing for many years. I don’t disagree. Since the early 80s, my enduring interest has been in the ways in which technology can modernize and improve the work of the legal profession and the courts. My main underpinning conviction has indeed not changed: that legal work is document and information intensive, and that a whole host of information technologies can and should streamline and sometimes even overhaul traditional methods of practicing law and administering justice.

What have changed, of course, are the enabling technologies. When I started out on what has become a career devoted largely to legal technology, the web had not been invented, nor had tablets, handheld devices, mobile phones, and much else. As new technologies emerge, therefore, I always have a new story to tell and more evidence that suggests the legal world is shifting from being a cottage industry to an IT-enabled information sector.

The evolution of my thinking reflects my own technical interests and career activities over the years. My first work in the field, in the 1980s, focused on artificial intelligence and its potential and limitations in the law. This began in earnest with my doctoral research at Oxford University. I was interested in the possibility of developing computer systems that could solve legal problems and offer legal advice. Many specialists at the time wanted to define expert systems in law in architectural terms (by reference to what underlying technologies were being used, from rule-based systems to neural networks). I took a more pragmatic view and described these systems functionally as computer applications that sought to make scarce legal knowledge and expertise more widely available and easily accessible.

This remains my fundamental aspiration today. I believe there is enormous scope for using technology, especially Internet technology, as a way of providing affordable, practical legal guidance to non-lawyers, especially those who are not able to pay for conventional legal service. These systems may not be expert systems, architecturally-defined. Instead, they are web-based resources (such as online advisory and document drafting systems) and are delivering legal help, on-screen, as envisaged back in the 1980s.

During the first half of the 90s, while I was working in a law firm (Masons, now Pinsent Masons), my work became less academic. I was bowled over by the web and began to form a view of the way it would revolutionize the communication habits of practicing lawyers and transform the information seeking practices of the legal fraternity. I also had some rudimentary ideas about online communities of lawyers and clients; we now call these social networks. My thinking came together in the mid-1990s. I became clear, in my own mind at least, that information technology would definitely challenge and change the world of law. Most people thought I was nuts.

A few years later, to help put my ideas into practice, I developed what I called ‘the grid’ – a simple model that explained the inter-relationships of legal data, legal information, legal knowledge, as found within law firms and shared with clients. I had used this model quite a bit with my clients (by this time, I was working independently) and it seemed to help lawyers think through what they should be doing about IT.

In the years that followed, however, I became even more confident that the Internet was destined to change the legal sector not incrementally and peripherally but radically, pervasively, and irreversibly. But I felt that, in the early 2000s, most lawyers were complacent. Times were good, business was brisk, and the majority of practitioners could not really imagine that legal practice and the court system would be thrown into upheaval by disruptive technologies.

Then came the global recession and, in turn, lawyers became more receptive than they had been in boom times when there had been no obvious reason why they might change course. Dreadful economic conditions convinced lawyers that tomorrow would look little like yesterday.

With many senior lawyers now recognizing that we are on the brink of major change, my current preoccupation is that most law schools around the world are ignoring this future. They continue to teach law much as I was taught in the late 1970s. They are equipping tomorrow’s lawyers to be twentieth century not twenty-first century lawyers. My mission now is to help law teachers to prepare the next generation of lawyers for the new legal world.

Richard Susskind OBE is an author, speaker, and independent adviser to international professional firms and national governments. He is president of the Society for Computers and law IT adviser to the lord chief justice. Tomorrow’s Lawyers is his eighth book.

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Image Credit: ‘The Grid’ courtesy of Richard Susskind. Used with permission. Do not reproduce without explicit permission of Richard Susskind.

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Learned Hand (1872-1961) served on the United States District Court and is commonly thought to be the most influential justice never to serve on the Supreme Court. He corresponded with people in different walks of life, some who were among his friends and acquaintances, others who were strangers to him. In the letter below, Hand writes to Mary McKeon, a New Yorker troubled by Hand’s decision to invalidate the warrantless search and consequent arrest of the Soviet spy, Judith Coplon.

To Mary McKeon

December 28, 1950

Dear Miss McKeon:

I have your letter about the Coplon case and I can understand why you are troubled about the result; and because you were not abusive, I am going to try to explain it to you. 

It is a rule — well settled by the decisions of the Supreme Court — that evidence which the Government secures by its own violation of law it may not use against the person whose rights have been invaded. An extreme example of this would be in case a United States marshal were to break into the house of an accused person and seize his papers; the Government would not be allowed to use the papers against the person whose house had been entered. The same thing is true of documents found upon the person of one who is unlawfully arrested as was Judith Coplon. That was one ground for the reversal. The other was that during the trial it became necessary for the Government to depend upon evidence which it was unwilling to let her see. The Constitution provides that a person accused of crime is entitled to have all witnesses, who are called against him, brought into court at the trial.

Thus in these two instances the rights of the accused were violated, which is entirely consistent with her guilt. Perhaps, if you reflect, you will agree that it is not desirable to convict people, even though guilty, if to do so it is necessary to violate those rules on which the liberty of all of us depends.

Truly yours,

Learned Hand

The letter above was excerpted from Reason and Imagination: The Selected Letters of Learned Hand, edited by Constance Jordan, a retired professor of comparative literature and also Hand’s granddaughter. In 1944, Coplon, who worked for the Foreign Agents Registration section, was recruited as a spy by the NKGB, i.e., the People’s Commissariat for State Security. In 1949, FBI agents detained Coplon as she met with Valentin Gubitchev, a KGB official employed by the United Nations, while carrying what she thought were secret U.S. government documents; in actuality, they were fakes, planted in her purse at the order of J. Edgar Hoover. Declared guilty of espionage by the United States District Court for the Southern District of New York in 1949, Coplon appealed to the United States Court of Appeals for the Second Circuit. In United States v. Coplon, in an opinion authored by Hand and announced on December 5th, her conviction was overturned.

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Image credit: Judge Learned Hand circa 1910. Public domain via Wikimedia Commons.

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By Grahame Thompson

Have we seen a potentially new form of global governance quietly emerging over the last decade or so, one that is establishing a surrogate and informal process of the constitutionalization of global economic and political relationships, something that is creeping up on us almost unnoticed?  This issue of ‘global constitutionalization’ has become an important topic of analysis over recent years. Its development is most obvious in the case of business and corporate activity but I suggest it has a much wider provenance and is threatening to encompass many other aspects of global governance like human rights, security and warfare, environmental regulation, and more besides. One difficulty in analyzing this trend is to define its characteristics and parameters since it represents a rather loose configuration, one that is not easy to pin down.

Quasi-constitutionalization is a surrogate process of constitutionalization, not a coherent program with a rounded set of outcomes but full of contradictory half-finished currents and projects: an ‘assemblage’ of many disparate advances and often directionless moves – almost an accidental coming together of elements. So it does not amount to a ‘system’ in any conventional sense. This means it marshals together a complex bricolage of resources: material techniques and devices like models, documents, court decisions, legal statutes and treaties; institutional orders like legal apparatuses, bodies  and governance organizations; and discursive expertise, theoretical knowledges and instruments. But it is a process nonetheless: it is building norms of conduct, rule-making, and a distribution of powers in a ‘global polity’.

I call this a quasi-constitutional process because while it resembles a constitution in many respects it is difficult to transpose constitutionality directly into an international environment where there is no single competent authority that might foster or enforce such a constitution.

In turn, this connects to various senses of the juridicalization of international corporate and other affairs, where new or revitalized types of law are increasingly being brought into play as the mechanisms for resolving disputes or organizing governance. This involves new forms of public law, private law, customary law, regulatory and administrative law, all of which are rapidly evolving in the international arena alongside traditional international law. Institutions that embody such a process are the WTO, various agencies of the UN, the OECD, Bilateral Trade and Investment treaties, and a huge number of standard setting and benchmarking organization many of which are private in character but which both claim and exercise a public power at the global level. This is the site of a reinvigorated private law and private authority operating in the international domain. In the case of companies, they are increasingly adopting the language of global corporate citizenship to characterize their activity as civic actors in this evolving quasi-constitutional environment, and they are being addressed as such by bodies like the World Economic Forum and the UN’s Global Compact. Bilateral trade and investment treaties have mushroomed over recent years. Investment treaties are an example of global private administrative law in action.

On the other hand we have the OECD in its capacity as sponsor of socially responsible conduct by multinational companies (Guidelines for Multinational Enterprises) which has become an instrument of global public administrative law. John Ruggie’s recent attempt to introduce a comprehensive regime of human rights into the business world (the UNs Protect, Respect and Remedy Framework) is another case in point of the creeping quasi-constitutionalizing process.

But a major issue of concern is whether quasi-constitutionalization leads to the Rule by Laws (RbLs) rather than the Rule of Law (RoL) in the international system? The RoL may be being given away as RbLs replace a comprehensive system of democratically constituted judicial review, which cannot happen in the case of global quasi-constitutionality.

Thus in this evolving environment, instead of the rule by elected and accountable political officials we are seeing the emergence of rule by lawyers and by aged judges and law professors in international commercial and other matters. These are the actors that are leading the process of institutional rule-making. Public and particularly private elites are making-up the rules as they go along, arbitrarily and on an ad hoc basis. I call this a rule by a new self-appointed Guild of Lawyers on the one hand and a new Clerisy of the Law on the other. In effect, we are giving up any form of democratic legitimacy and accountability with this introduction of global quasi-constitutionalization.

Grahame F. Thompson is Professor of Political Economy at the Copenhagen Business School (Denmark), and Emeritus Professor at the Open University (England). His research and teaching interests have been in international political economy matters, and globalization; with a recent focus on the role of business organization in the context of international economic matters. He is the author of The Constitutionalization of the Global Corporate Sphere? (OUP, 2012).

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Unless you’ve been sleeping under a rock (under Iraq? Unforgiveable pun?), yesterday’s Supreme Court decision to uphold the majority of the Patient Protection and Affordable Care Act (PPACA), ruled in the National Federation of Independent Businesses v. Sebelius, likely caught your attention. Despite attempts to repeal the act by both the 111th and 112th Congresses, the Court determined that the government mandate for health care was a tax, and thus fell under Congress’s taxing authority, with the caveat that the federal government could not withhold Medicaid funds in their entirety to states that refused to comply with Medicaid expansion. The Washington Post has a helpful electronic cheat sheet that explains how the legislation will affect you directly in the months and year to come, based on the type of insurance you do or do not carry, your income, and household status. With that in mind, we asked scholar Beatrix Hoffman, author of Health Care for Some: Rights and Rationing in the United States since 1930, to weigh in on Court’s ruling in light of her own research on America’s long tradition of unequal access to health care. Her thoughts follow below.

***

A Historic Ruling for Health Care

The Supreme Court shocker that (mostly) saved the Affordable Care Act adds a new chapter to the history of health-care reform in the United States. As we heard frequently throughout the debates, several presidents and numerous politicians have proposed national health-care plans in the past. Over the course of nearly 100 years, only Lyndon Johnson was successful, with the creation of Medicare and Medicaid in 1965. Then, when Congress passed the Affordable Care Act (ACA) in March 2010, Barack Obama achieved the most sweeping reform in history. Yesterday, just a single vote by Chief Justice John Roberts saved the entire law from being declared unconstitutional.

This was the first time that national health-care reform faced a constitutional challenge. Medicare was funded through a payroll deduction, which (the Supreme Court just reminded us) was fully within Congress’s power to tax. Medicare’s framers deliberately grafted their new health-insurance program for the elderly onto a popular, efficient, payroll-tax-based system that already existed and was fully constitutional: Social Security.

President Obama and the members of Congress who wrote the Affordable Care Act broke with this successful reform tradition by rejecting the option of expanding Medicare or otherwise building on existing tax-based social insurance programs. Believing such an approach to be politically unfeasible, they instead opted for the “individual mandate,” which requires the uninsured to purchase private health insurance, an idea that originated in a conservative think-tank and was first applied in Massachusetts under then-Governor Mitt Romney. Despite this dramatic political compromise, the individual mandate did not succeed in capturing the votes of the Congressional opposition—not a single Republican voted for the Affordable

Wait. I’ve got one—

“A lawyer walks into a bar”—oh, you’ve already heard it. “A one-legged lawyer walks into a bar”—no? That, too?

How about this one? I’m working on my timing. “What’s the difference between a good lawyer and a great lawyer?” Give up? “A good lawyer knows the law. A great lawyer knows the judge.” Is that funny?

n 1873, Robert Vischer coined the term Einfühlung in “On an Optical Sense of Form: A Contribution to Aesthetics” in order to designate a sort of personification—the projection of human feelings on the natural world. Vischer was concerned with our ability to feel ‘into’ nature and art, and Einfühlung picks up from the German Romantic tradition of Johann Gottfried Herder and Georg Philipp Friedrich Freiherr von Hardernberg (Novalis) as a process of poetic identification with the natural world and its underlying spiritual relationship with man. Part of Vischer’s interest laid in the fact his father Friedrich Theodor Vischer had, a generation earlier, written the monumental Aesthetik and attempted the use of Einfühlen in order to describe architectural form in congruence with German Idealist philosophy and the rebellions of 1848–49.

Vischer relegated empathy to the place between purely responsive and intellectual feeling, stating “like the immediate feeling, empathy leaves the self in a certain sense solitary. The outward appearance remains a source of unconscious enticement and subjection.” Part of the argument formed here is the processional nature of Einfühlung: it’s only through projection, exchange, and return that the distinctions between internal and external, outward appearance and inner emotion, can be resolved. The first relation of empathy is to one’s self. It’s between the rise of Vischer’s text in the late nineteenth century and the construction of philosophical aesthetics as a dominant category of the discipline that psychologist Edward Titchener translates the term Einfühlung as empathy for the first time, in 1909—four years after Freud’s publication of The Joke and Its Relation to the Unconscious.

By this point, the concept of empathy had been transformed by Theodor Lipps, who altered the usage of the term from the domain of aesthetic appreciation to the social and human sciences—ultimately linking our aesthetic perception with our perception of another embodied person as a “minded creature.” The risk here is extrapolating empathy from a metaphoric engagement with optics, perception, and aesthetics and shifting it to our earliest understandings of motor mimicry (advanced already by Adam Smith, as early as 1853), anticipating work with imitation, mirror neurons, and physiological response by as much as 150 years. Though Lipps’ argument is grounded in facial expressions (if we see an angry face on another person, we have a tendency to “imitate” it), he extends this concern with empathy to all mental activities requiring “human effort,” including self-reflection.

It’s this sort of empathy-as-simulation that Freud will pick up on, opening The Joke and Its Relation to the Unconscious with a d

The law is based on reasoned analysis, devoid of ideological biases or unconscious influences. Judges frame their decisions as straightforward applications of an established set of legal doctrines, principles, and mandates to a given set of facts. Or so we think.

As the Supreme Court debates President Barack Obama’s landmark health care law — sometimes dubbed ObamaCare — it’s important to remember that unreasoned, impartial law is largely an illusion. As far back as 1881, Oliver Wendell Holmes, Jr. wrote that “the felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have a good deal more to do than the syllogism in determining the rules by which men should be governed.”

We sat down with Director of the Project on Law and Mind Sciences at Harvard Law School (PLMS) and editor of Ideology, Psychology, and Law, Professor Jon Hanson, to discuss the interaction of psychology and the law, and how they form ideologies by which we all must live.

What sparked your interest in the study of mind sciences and the law?

My interest has evolved through several stages. Although I studied economics in college, I did so with special interest in health care policy, where the life-and-death decisions have little in common with the consumption choices imagined in neoclassical economics. Purchasing an appendectomy through insurance has little in common with buying a fruit at the market.

After college, I spent a year studying the provision of neonatal intensive care in Britain’s National Health Service, attending weekly rounds with neonatologists at London hospitals, meeting with pediatricians in rural English hospitals, interviewing nurses who were providing daily care for the infants, some of whom were not viable, and speaking with parents about the profound challenges they were confronting. Those experiences strengthened my doubts regarding the real-world relevance of basic economic models for certain types of decisions.

In law school, I studied law and economics, but tended to focus on informational problems and externalities that had been given short shrift by some legal economists at the time. After attending a talk by, and then meeting with, the late Amos Tversky, I became an early fan of the nascent behavioral economics movement.

It wasn’t, however, until I spent a couple of years immersed in cigarette-industry documents in the early and mid 1990s that I felt the need to make a clean break from the law’s implied psychological models and to turn the mind sciences for a more realistic alternative.

What was it about the cigarette documents that had that effect?

Well, they made clear that the tobacco industry articulated two views of their consumers – an inaccurate public portrayal, and a more accurate private view.

The first, which the industry conveyed to their consumers and to lawmakers, was of smokers who are independent, rational, and deliberate. Smokers smoke cigarettes because they choose to, because smoking makes them happier, even considering the risks. The industry thus gave consumers a flattering view of themselves as autonomous, liberated actors while assuring would-be regulators that there was no need to be concerned about the harmful consequences of smoking. Smokers were, after all, just getting what they wanted.

The second view of the consumer, which was evident in the industry’s internal documents, was of consumers as irrational, malleable, and manipulable. The industry’s confidential marketing strategy documents, for instance, made clear that the manufacturers theorized and experimented to discover how to target, persuade, lure, and chemically hook young consumers to take up and maintain the smoking habit. That internal understanding of consumers had no

By Duncan Calow

It is only March, but 2012 has already seen a series of contract disputes over digital media and technology hit the headlines.

First, rock star Peter Frampton announced he had filed a lawsuit against his record label for half a million pounds worth of unpaid music royalties and other damages. Frampton claimed he was contracted with A&M Records to receive a 50% royalty for the use of “licensed” music but had not received payment on any digital sales.

Then there was news that book publisher HarperCollins had filed a lawsuit against digital publisher Open Road for copyright infringement in relation to e-versions of the children’s book, “Julie of the Wolves”. HarperCollins claims its author contract gave it the exclusive ability to publish the work in any format but Open Road claims to have been granted the e-book rights.

And even ‘new media’ companies have their problems too. PhoneDog.com, an interactive mobile news and review website, was reported to have sued a former employee for £217,000 after he  converted a Twitter account, which it was claimed was originally set up on behalf of the employer, for his own use after leaving the company.

Each of the cases involve very different parties with very different facts and very different contracts.

The first is just one of many cases over how revenue in sales of digital music should be split between artists and labels, often with a focus on how physical distribution terms can apply to digital delivery. The second case raises, once again, the crucial question over how far fundamental expectations within a contract about how a work can be exploited can change as technology develops. The final dispute highlights the need for all businesses to keep employment contract and policies up to date to reflect the way in which social media and other technology is adopted in the workplace.

It remains to be seen how successful any of the claims will be as the full circumstances of these cases emerge over time or as the parties reach settlements.

What is clear, however, is that keeping contractual arrangements up-to-date with an ever evolving media and technology landscape continues to be a challenge.  It is also a form of challenge that existed well before digital. Legal text books recount the disputes that arose as theatre plays were first filmed for cinema – or when cinema films were first shown on television and released on video.

The pace of change is of course faster now and the inherent nature of digital technology allows greater opportunities for re-use. Accordingly, it is commonly suggested that the best solution is to work with technology-neutral contracts that reflect a ‘converged’ digital media. Yet in practice there is often still a need to main sector specifics and capture particular technical details.

In fact, dealing with digital successfully in a contract is often a balancing act between maintaining familiar structures and form alongside sufficient further foresight and flexibility.  Future developments may not always be predictable but contracts can still try to provide for that uncertainty.

Meanwhile, it’s a pretty s

By Nigel Boardman

The new UK Bribery Act 2010 (“the Bribery Act”) came into force on 1 July 2011, and, according to the guidance issued by the UK Government (“the Government Guidance”; see The Bribery Act 2010: Guidance), is intended to contribute to wider international efforts to combat bribery.

While targeting all forms of bribery, the Bribery Act has significant implications for commercial organisations. In addition to the general offences of bribing another (section 1) and being bribed (section 2) (both of which may be committed by a company), the Bribery Act created two offences which target commercial bribery: under section 6, it is an offence to bribe a foreign public official with the intention of obtaining or retaining business or a business advantage; and section 7 makes it an offence for a “relevant commercial organisation” to fail to prevent an “associated person” from bribing another with the intention of obtaining or retaining business or a business advantage for the organisation.

Importantly, the Bribery Act has extra-territorial effect. Liability is imposed irrespective of whether the act or omission which forms part of the offence took place in the UK or elsewhere. Furthermore, the provisions of section 7 are not limited to companies and partnerships which are incorporated or formed in the UK, but extend to foreign companies and partnerships which carry on a business, or any part of a business, in any part of the UK.

The consequences of conviction for an offence under the Bribery Act are severe, and may include the payment of unlimited fines, debarment from EU government contracts and (for individuals) imprisonment for up to 14 years.

In his introduction to the Government Guidance, the UK Secretary of State for Justice, Kenneth Clarke, states that the Bribery Act’s provisions are aimed at “making life difficult for the mavericks responsible for corruption, not unduly burdening the vast majority of decent, law-abiding firms.” Nevertheless, any organisation which considers that it may be a “relevant commercial organisation” for the purposes of the Bribery Act would be well-advised to introduce internal anti-bribery procedures. If nothing else, the existence within an organisation of adequate procedures designed to combat bribery may serve as a defence to liability under section 7, which is otherwise strict.

The Government Guidance is focussed, in large part, on advising organisations on appropriate anti-bribery procedures. It expounds six key principles which are not prescriptive, but which, it is suggested, should form the basis of any business’ anti-bribery policy.

A rigorous anti-bribery policy, devised in accordance with the Government Guidance, will be imperative for those participating in M&A transactions, which can present considerable risks from bribery. Such transactions generally result in a commercial organisation acquiring new associated persons whose conduct may expose the acquirer to liability under the Bribery Act. In addition, joint venture partners are likely to fall within the meaning of “associated persons”, and thus each participant in the venture could be prosecuted for an offence committed by its partner.

As part of such a policy, due diligence should be carried out throughout the M&A procedure, in which the risks of bribery are identified and addressed, and parties to transactions may wish to negotiate additional contractual protections in the form of warranties and indemnities to reduce their exposure to liability under the Bribery Act for the conduct of their associates.

Clearly the nature and extent of an organisation’s exposure to bribery-related offences will depend on the form and circumstances of the deal in question. By way of example, an organisation should be cautious in respect of transactions in a country in which there is a high level of co

“

If you’re out to make a great app or better hammer, there will be copy cats galore. As for nice artists looking to do something with your own characters… what I really must warn you about are crafters who rip IP. Boy do I hate them. I’ll take giant corporate entities ripping on us over crafters any day.

See, when it’s the giant companies, it’s always some young new in-house designer getting lazy and throwing existing IP into the mix, figuring nobody will know. It’s an easy fix, they pay your legal fees and remove the product, done deal.

But crafters? They don’t have the $ to pay legal fees. But you will always have to pay yours, and you will always always have to stop every single one of them.

By Victor Tadros When an offender commits a crime most of us think that the state is justified, and perhaps also required, to punish him or her. But punishment causes offenders a great deal of harm, it costs a lot of money, and it not only harms offenders, it also harms their family and friends. What could possibly justify doing these things?

By Dennis Baron English on business signs? It's the law in New York City. According to the "true name law," passed back in 1933, the name of any store must "be publicly revealed and prominently and legibly displayed in the English language either upon a window . . . or upon a sign conspicuously placed upon the exterior of the building" (General Business Laws, Sec. 9-b, Art. 131). Failure to comply is technically a misdemeanor, but violations

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By David Fisher

There has been much recent debate about whether the 2003 Iraq War was legal, with both Tony Blair and his Attorney General summoned before the Chilcot enquiry to give evidence on this. But a more fundamental question is whether the war was moral.

On this question the Chilcot enquiry has been silent, perhaps reflecting a more general scepticism in society about whether moral questions can have objective answers. But there is a way of thinking going back to Aquinas, Aristotle and beyond that insists that there are rationally based ways to answer moral questions.

A key contribution to this is furnished by the just war tradition. This sets a number of tests which have to be met if a war is to be just. It has to be undertaken: for a just cause, with right intention, with competent authority, as a last resort, and the harm judged likely to result should not outweigh the good achieved, taking into account the probability of success; while in its conduct the principles of proportion and non-combatant immunity have to met; and the war end in a just peace.

This may appear over-prescriptive: erecting so many hurdles that war would become impossible. But the just war tradition recognises that wars can be just and may sometimes be necessary. What the tradition insists on are two fundamental requirements, as simple as they are rationally compelling: is there a just cause and will the harm likely to be caused by military action outweigh the good to be achieved by that cause? In other words, is war likely to bring about more good than harm?

So how does the Iraq War fare against these criteria?

Different reasons were adduced at different times for the war. But the declared grounds common to both the US and UK Governments was to rid Iraq of its weapons of mass destruction, so enforcing UN Security Council Resolutions.

We now know that Iraq did not have weapons of mass destruction. But even that startling disclosure by the Iraq Survey Group would not necessarily invalidate the coalition’s disarmament objective as just cause if there had been strong grounds for believing that Saddam had such weapons.

The problem is that the evidence for such weapons was ‘sporadic and patchy’ in the words of the official Butler report. The Governments’ claim that they were acting on behalf of the UN was also weakened by the lack of substantial international support for military operations, evidenced by the reluctance of the Security Council explicitly to endorse such action through a second resolution. This, in turn, reflected concern that military action was not being undertaken as a last resort: that Saddam should have been given more time to convince the inspectors he had abandoned WMD.  Doubt over whether each of these just war conditions was met did not amount to a knock-down argument against war. But the doubts taken together mutually reinforced each other and so strengthened concern that there was not a sufficient just cause. 

It is, moreover, the single most serious charge against those who planned the Iraq War that they massively under-estimated the harm that would be likely to be caused by military action. Coalition leaders could not reasonably be expected to have forecast the precise casualty levels that would follow military action. But the coalition leaders can be criticised for failing to give sufficient consideration to what would be the effects of regime change and for not formulating robust plans promptly to re-establish civil governance in its wake and ensure a peaceful transition to democracy. They thus acted with a degree of recklessness. Just as they had undertaken worst case assessments of Saddam’s WMD capability, so they had undertaken best case assessments of what would happen after the regime had been changed.

The Iraq War was, like most wars, fought from a mixture of