On 16th-17th April 2018, Dr Sophie Turenne kindly organized the annual BACL PhD workshop, at Murray Edwards College (Cambridge), supported by Intersentia and the Centre for European legal studies (CELS). This annual workshop aims to foster constructive and supportive discussions among PhD students who undertake comparative research projects. The workshop benefitted from the experience of senior academics who shared their own experience of the challenges and opportunities offered by comparative projects. Dr Solène Rowan (London School of Economics) explained her thoughts through the lens of comparing contractual remedies in England and France, underlining that “there is a place for everyone’s original contribution to academic debates”. Dr Felix Steffek (Cambridge) discussed the key distinction between the functional method and a normative perspective in comparative research. He illustrated this with examples drawn from his own research on dispute resolution. In his key note presentation, Professor John Bell (Cambridge) revisited his experience by providing several carefully selected examples of a reflexive approach to one’s own legal system and to one’s first research questions, thanks to a comparison with other legal systems and discussions with colleagues from abroad. In this way, comparative law enriches our understanding of the law and the non-legal factors impacting legal solutions and makes us value more highly contextual factors (e.g. the layout of a court room and its influence on judicial proceedings). Finally, Ann-Christin Maak-Scherpe (Intersentia) explained how a book publisher engages with prospective authors and which points are to be considered when turning a successful PhD into a well-received book.
The presentations by the PhD students of their papers led to extremely interesting discussions. Here are summaries of the panel discussions as kindly provided by participants. The full programme is available here (BACL 2018 PROGRAMME WIDE CIRC).
Panel 1 – Students’ presentations [summary by Lewis Graham]
- Emilie Barbin (Lyon 3): “The Regularisation of Administrative Acts. A Comparative Study between French and Brazilian Laws”
- Marie Cirotteau (Paris II): “The Delegation of Public Functions to Private Parties. A Comparison between French and English administrative liability”
- Autumn Ellis (Cambridge): “Counter-Extremism and the Control of Religious Belief in France and Britain
This first group featured three papers which all involved a comparison between France and another jurisdiction.
First, Emilie Barbin presented on the “regularization” of administrative law and the different legal actors involved in France and Brazil. She noted, in particular, that ‘comparative’ research is not as straightforward an endeavour as it may at first seem; the specificities and particularities of legal systems (here, Brazil) must always be accounted for. She noted, in this respect, that the Brazilian system operates as a ‘hybrid’ system, featuring imported mechanisms overlapped with home-grown ones, leading to an amalgam of influences. This adds nuance to the ‘comparative’ aspect of legal scholarship.
Next, Marie Cirotteau spoke about her research concerning the delegation of ‘public functions’ to private parties in two systems: France and England and Wales. She noted that one significant difference between the two jurisdictions is that in the UK, the difference between public law application and private law application ultimately falls to the identity of the parties involved. French law is wider in this respect; when a private actor is delegated a task which involves public works or public purposes, this will fall within the ambit of public law. Marie noted these different frameworks apply across jurisdictions which house both similarities and significant differences: the legal systems of both France and England and Wales are “driven by a social and political desire that a victim gets compensation” and they share “core functions”. However, there are significant differences in both terminology and conceptual underpinnings: “English and French laws do not reflect the same realities”.
Finally, Autumn Ellis spoke on counter-extremism (notably, as opposed to counter-terrorism) policies in education in the French and British contexts. This involved a comparison of underlying normative considerations in both jurisdictions; French Republican values on the one hand (liberty, equality, fraternity, laïcité, non-discrimination and associated concepts) and British constitutional values (democracy, the rule of law, individual liberty, mutual respect and tolerance) on the other. Each country’s approach to its values informs their respective approaches to the specific issue of extremism, how to tackle it, and its application in education. Interestingly, she concluded that despite significant differences between the systems, some common themes emerge: the concepts are amorphous in both contexts, ebbing and flowing with political winds; they foster strong links with national identity, and they both facilitate the rejection of certain ways of life, enforcing a cultural homogenization deemed necessary for social cohesion.
All speakers emphasized the inevitable overlap between the law as it stands and the cultural context that surrounds it. All three agreed that sophisticated comparative research must seek to understand this context or risk producing only a surface-level understanding of the legal reality.
Panel 2: Students’ presentations [summary provided by Professor John Bell]
- Marco Cappelletti (Oxford): “Comparative Legal Reasoning in Strict Liability”
- Nuhu Yidana (Hull) : “Protecting Consumers in Ghana: A comparative analysis of the Quality Obligations of Suppliers of goods and Consumer Remedies in Ghana and the UK”
Marco Cappelletti’s research looks at the substantive reasons offered for strict liability in French, Italian, English and US laws. The kinds of justifications offered include moral, economic, insurance, risk or injury to human health. The locus of the reasoning is in both judicial decisions (including the arguments of the advocate-general or equivalent) and in scholarly writing, ministerial and law reform commission reports. The aim is to provide understanding of the different approaches of the systems to strict liability.
The method is indebted to functionalism, but goes beyond it. Functionalism identifies types of outcome, but not the reasons. Because of the different understandings of fault in the relevant systems, there is a need to go beyond the terminology used by judges and scholars. He prefers a legal structuralist approach, treating the statements in legal texts and treatises as formants (Sacco). The aim is to look at the formants in relation to each other.
Discussion raised the issue of why four systems. The response was that this provided symmetry of common law and civil law systems. Marco recognised that the US material was large, but he considered that arguments tended to be repeated in relation to different areas of liability. In terms of principles of organisation, Marco thought he would organise by different types of argument, rather than by different contexts in which they were deployed (product liability, vicarious liability, nuisance, liability for things etc.).
Nuhu Yidana is comparing the protection of the quality of goods in consumer law in Ghana and England. He is focusing on two standards of quality: that goods are without defect and are of merchantable quality. These are found in the Ghana Sale of Goods Act 1962 and in the various pieces of English legislation. His concern is where the lack of clarity about terms in the Ghanaian legislation gives lesser protection to consumers.
The legislation provides exceptions where defecs have been disclosed or where the goods are only seen after sale (credence goods) or on use (experience). In relation to fitness for purpose, thre is the question of what purposes have to be declared and what to do about multipurpose goods.
The overall purpose is to identify areas in which Ghanaian law might benefit from improvement. The comparison shows how the law on the sale of goods, which was originally common in both countries has diverged. On the one hand, there has been a move to create specific consumer legislation within the English common law. On the other hand, English law has been subject in this area to European influences. Ghana has been looking at neighbouring African countries for solutions. Reforms in 2006/7 for consumers related to practical problems which were encountered in the Ghanaian market
Panel 3: Students’ presentations [summary provided by Ikram Ayari]
- Geleite Xu (Essex): “Legal Study on the Improvement of China’s Crisis Management and Market Exit Mechanism of Insurers: A Comparative Study between China, the UK and the US”
- Felix Hempel (UEA) : “IPSO, Press Regulation, and the Right of Reply – A Comparative Analysis of the United Kingdom and Germany”
- Rieneke Stelma-Roorda (VU Amsterdam): “The living will, a secure road?”
First, Gleite Xu discussed his thesis on Crisis Management and Market Exit Mechanism and how the existing legislation deals with this (especially regulatory proactive intervention / resolution of Regim and insolvency system). His thesis includes a comparison of the UK and US as they have more developed insurance systems, although the UK lacks a resolution regime. The main research question of the thesis turns around the reasons why China lacks a resolution regime, and why the bankruptcy regime does not apply to insurance companies. Questions of comparability of the three systems appear as the economic context within which the research question arises differs strongly: China operates a system underpinned by a state economy model, while the UK and the USA operate within a free market logic. These differences need to be included in the research design and presented in the thesis so that the reasons underpinning the choice of countries are well identified and presented for discussions.
Next, Felix Hempel presented his paper on IPSO, press regulation and the right to reply (i.e. the right to answer in the press in the same form as the comment made against a person, thus providing a possibility for a person to defend herself) in the UK and Germany. The legal situation is very different in both countries and the UK and Germany have their own specificities in addressing this legal issue. Felix explained why using a functional method for his research project would be beneficial. He stressed that the functional method allows for the development of a more factual comparison than a conceptual one. In looking for reasons for the different systems in the UK and Germany, Felix found that some reasons are historical while others relate to the ways in which the press is regulated in general (i.e. press has been largely self-regulated until recently in the UK, which is not the case in Germany).
Finally, Rieneke Stelma-Roorda discussed the “living will”, i.e. a technique by which an adult can appoint someone else to take care of their financial, personal and medical matters. This technique has become very successful in The Netherlands because the person is appointed by an act of free will and is not imposed externally by judges. Rieneke’s research seeks to understand the issues arising from the living will, for example when the person can no longer supervise the situation. A comparative approach would start with the work undertaken by the Council of Europe (e.g. Committee of Ministers of the Council of Europe, Recommendation CM/Rec(2009)11. Principles concerning continuing powers of attorney and advance directives for incapacity, 2009’) and then select four to five countries to compare based on pre-identified relevant criteria for comparison (such as unilateral or bilateral, content, legal basis or not, autonomy vs. Protection, accessibility). Thereafter a functional method and a “law in the context approach” will be combined to map the legal issues arising from living wills.
Panel 4: Students’ presentations [summary by Rieneke Stelma-Roorda]
- Cédric Bernard (Lyon 3 and Laval (Québec)): “A Comparative Approach to Public Procurement Law in France and Quebec: Harmonisation or Legal Transplant?”
- Sergio Chemas (Externado University of Colombia and Paris I): “The value of the democratic mechanism of popular consultation with regards to natural resource extraction projects. A Comparative Law perspective based on the Colombian Example”
- Aristi Volou (Leicester): “A Conceptual Framework on the Phenomenon of ‘Engagement’ in the Area of Human Rights Law”
The first speaker of this session, Cédric Bernard talked about his research on the existence of public procurement harmonization in France and Quebec (Canada) focussing on two methodological difficulties and the approach to deal with these. The first difficulty concerned the comparison of concepts that might be similar in substance but different as to their essence. According to Cédric, both the functional and conceptual methods could be used to identify a degree of similarity of the concepts that are to be analysed. A second difficulty concerned the specific characteristics of the legal cultures of France and Quebec, in particular the difference as to the areas of law dealing with public procurement. Cédric proposed a comparative study between private and public law, in particular in France. He argued that these two difficulties should not be seen as an obstacle to the harmonization of public procurement law beyond Europe.
With the second presentation the attention shifted from the public procurement law of France and Canada to a study of popular consultations mechanisms in Columbia. Sergio Chemas is looking at the popular consultations on projects of extraction of natural resources (mining) in Columbia and, in particular, the effectiveness of these mechanisms in terms of what is done with the outcome. A comparative approach is adopted to study the democratic mechanisms used in other countries to ensure effective inclusion of the local community. Sergio has found that the context in which the legal rules operate, in particular the economic context, plays an important role in determining which countries should be included in the comparison.
In the final presentation of this session, Aristi Volou discussed the phenomenon of ‘engagement’ in the area of human rights. The word ‘engagement’ is used to describe a situation where a legislative or (quasi-)judicial body at the national, regional or international level considers the relevance of legal texts, jurisprudence or ideas which do not belong to their own jurisdiction. Aristi has used examples of engagement from different legal orders to further explore this concept and has developed a new typology, distinguishing the level, degree, type, function and effect of engagement. Future research plans include the development of a set of criteria that can be used to determine in which situations engagement should or should not be used.
Panel 5: Students’ presentations [summary by Marco Cappelletti]
- Luca E. Perriello (Roma Tre): “Polyfunctionality of Civil Liability and Punitive Damages after the 2017 Italian Decision no 16601”
- Virginie H.L. Kuoch (Paris I): “The Hybrid Nature of the Constitutional Law of Hong Kong”
The first speaker, Luca Perriello, presented his paper dealing with punitive damages and the polyfunctionality of Italian tort law. The main points discussed included:
- The relationship between compensatory and punitive damages
- The normative desirability of punitive damages in light of the legal and economic contexts of different countries
- Whether or not a variety of legal systems, e.g. France, do include punitive elements in civil awards while not formally recognising punitive damages
- Whether or not punitive damages should go to the claimant or to the state
- Whether courts can award punitive damages in a discretionary way or if there needs to be a legislative provision authorising the award of punitive damages
- The relationship between punitive damages and attorneys’ fees and whether the latter influence the recognition of punitive damages (e.g. in the USA or in England)
The second speaker, Virginie Kuoch, presented her paper about Hong Kong constitutional law, and how different legal systems such as Hong Kong and Chinese laws can coexist under a common constitutional framework. The main points discussed included:
- The relevance of comparative arguments made by the Hong Kong courts. How are they used by the judges and for what purpose? They are usually used in a way that affects the outcome of the case being tried
- The differences between mechanisms for judicial review of the constitutionality of laws in China as opposed to Hong Kong
- In case of conflicts between Chinese and Hong Kong’s basic laws, the Chinese law prevails. This issue is explored in the paper to see whether this arrangement undermines Hong Kong’s autonomy
- Would it make sense to see Hong Kong as a Hybrid legal system and compare it to other hybrid systems across the world?
- The direct/indirect effect of constitutional provisions on the relationships between private parties
Panel 6: Students’ presentations [summary by Felix Hempel]
- Federica Giordano (Oxford): “Platform Intermediary Services: a New Liability Challenge for European Contract Law”
- Luigi Lonardo (King’s College London): “Institutional interpretation of European Union Common Foreign and Security Policy”
- Marteen Stremler (Tilburg): “Constitutional Oversight of the EU”
Federica Giordano’s presentation outlined the aims, methodology, and challenges of her doctoral research. The main purpose of her thesis is to ascertain whether a claim for the existence of a contract between Uber and the rider is valid under traditional doctrines of contract law. In her paper, she put forward an argument for why it is significant to compare the English and Italian legal systems on this issue. Most importantly, her research seeks to investigate whether the assumption that Italian law appears to enforce a much wider range of promises can be discredited. After outlining potential challenges to her study, Federica was pleased to receive helpful feedback and comments from the audience.
The second speaker of this panel, Luigi Lonardo, explored how EU institutions and actors interpret the rules of primary law on common foreign and security policy. His presentation was focused on the differences and similarities of the EU’s diplomatic networks compared to those in the US. Further, he reviewed how the EU’s defence and security missions fit into this network in comparison to the military and civilian personnel deployed by the US. This was followed by a very fruitful debate, led by Professor John Bell, Dr Sophie Turenne, and Claudina Richards.
Last but not least, Maarten Stremler, presented his work on the emergence of legal and political mechanisms at EU level aimed at safeguarding a particular constitutional profile in the member states. His thesis conducts a comparative analysis, which aims to explore the variability and range of institutional implementations of constitutional oversight in federal states and international organisations. As comparators, he chose the US, Germany, the Organization of American States, and the Common Market of the South. After outlining his arguments for the questions of why compare and what to compare, as well as the benefits of the functional method for his study, Marteen also received feedback from his peers and senior researchers.
Panel 7: Students’ presentations [summary by Sergio Chemas]
- Lewis Graham (Cambridge): “Quantification of judicial decision-making in the USA and the rest of the world”
- Ondrej Kadlec (Oxford): “The Role of Grand Panels at Multi-Panel Supreme Courts”
Closing the workshop, we had the opportunity to witness an analytical approach to comparative law with these two final presentations. Upon reading the titles of their presentations, it seemed that they had little in common, however, the fact that they are both analyzing judicial bodies and share similar methods of conducting their research, gave us a spectrum of common ground which enabled a unique and stimulating discussion.
In the first presentation, Lewis Graham takes on the challenge of analyzing whether a quantified judicial decision-making study could be achieved in the UK, assessing if the lack of scholarship in this area is justified and if it is tenable. He focused his presentation on countering and disproving some of the abstract arguments that have been used to discredit this type of academic analysis in the UK. In a way he is focused on looking beyond the simple “generalized differences”, for example, the different legal cultures or collegiate systems, and rather focusing on the details which enable a true comparative exercise. He then stated that he believes such a study is viable in the UK, and that as a part of his thesis work he intends to analyze judicial decisions made by 25 judges of the Supreme Court over the last 10 years, to see what the results will demonstrate about how judges judge in the UK.
Sharing the status of being a pioneer subject, Ondrej Kadlec’s presentation gave way to an issue which contrary to Lewis’s subject, has not been talked about enough to acquire “generalizations”. His thesis studies the influence that the Grand Panels have on the other chambers both in the European Court of Human Rights and the European Court of Justice. The premise being that Grand Panels should for the most part have an effect in their multi-panel courts. The nature of their composition and their functioning allows for there to be considerable differences to the point where finding relatable key factors from which to collect data can become very difficult. Thus, for his presentation, Ondrej shared with the audience some of the challenges with which he has had to deal with, such as the uncertainty of deciding what the methodological organization for his data analysis would be, the unavoidable language barrier that exists in these Courts because of their multilingual decision making and finally, the difficulty behind finding overlapping subjects in both jurisdictions worth comparing.
Throughout both the presentations similar methodological issues arose: How to develop the analytical method to go along with your criteria? How to choose the key elements of your analytics? The importance of a pilot study. How to remain objective with your approach? The importance of being adaptable while maintaining a scientific base. Not getting discouraged with your results and remembering that if they are representative they can be useful, so long as “you read through it with a fine comb”.
As a final note, these final presentations displayed a lot of inspiring “why not do it” research, along with a touch of bold comparative law instinct. Both subjects can be deemed a feat for the brave, for the patterns and the answers to their questions will only manifest themselves at the very end of the long research tunnel that still lays ahead.
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BACL hopes to hear more from these stimulating research projects in the future and looks forward to organizing the next workshop in 2019 – in Lancaster. Do sign up to this blog to hear more about it in due time!