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The Impact of the Human Rights Act on Advocacy

Rabinder Singh

in The United Kingdom's Statutory Bill of Rights: Constitutional and Comparative Perspectives

This chapter reflects on the impact of the Human Rights Act (HRA) in its first 10 years on litigation and, in particular, on advocacy. It suggests that the impact has been important but not ... More

This chapter reflects on the impact of the Human Rights Act (HRA) in its first 10 years on litigation and, in particular, on advocacy. It suggests that the impact has been important but not revolutionary: the HRA has fitted into the existing legal landscape and has not required radical changes to the rules on procedure and evidence. It examines four areas in which its impact can be felt: the nature of the evidence required in human rights cases; disclosure and candour in judicial review proceedings; the increased need for cross-examination of witnesses; and the role of third-party interveners because human rights cases tend to raise issues of importance to the wider public. Finally, it examines the increasing importance of international law in domestic cases, which can be attributed in part to the impact of the HRA.Less

Electricite de France: Moving Toward the National Policy Level

Charles Heckscher, Michael Maccoby, Rafael Ramirez, and Pierre-Eric Tixier

in Agents of Change: Crossing the Post-Industrial Divide

This chapter describes a major transition from monopoly to market at EDF, the French state-owned electricity company that is today's the world's biggest electrical utility firm. It took ten years to ... More

This chapter describes a major transition from monopoly to market at EDF, the French state-owned electricity company that is today's the world's biggest electrical utility firm. It took ten years to persuade managers and unions to sit around a single table to develop a new system of industrial relations. The intervener's role was to help managers understand the effects of their policies towards workers and unions and to help with the negotiation of social agreements.Less

The Continental Doctrine of ‘Negotiorum Gestio’ 1

Jeroen Kortmann

in Altruism in Private Law: Liability for Nonfeasance and Negotiorum Gestio

This chapter contains an introductory account of the basic scope and meaning of the doctrine of negotiorum gestio. It should again be stressed that it is not here intended to describe the doctrine in ... More

This chapter contains an introductory account of the basic scope and meaning of the doctrine of negotiorum gestio. It should again be stressed that it is not here intended to describe the doctrine in all its details, or to give a full report of the ways in which an intervener might recover in the continental systems here discussed. Instead, the purpose of this chapter is merely to illustrate how a general principle allowing necessitous interveners to recover — negotiorum gestio — operates within a modern legal system. Thus, this chapter does not contain any discussion of, for example, the intervener's possible claims in contract or tort, nor of the specific provisions in the German civil code entitling the finder of lost goods to reimbursement of his expenses as well as a reward.Less

The Position in English Law

Jeroen Kortmann

in Altruism in Private Law: Liability for Nonfeasance and Negotiorum Gestio

This chapter contains an introductory account of the position in English law. English Law in principle denies the intervener a claim, be it for reward or for mere reimbursement of his expenses. Yet, ... More

This chapter contains an introductory account of the position in English law. English Law in principle denies the intervener a claim, be it for reward or for mere reimbursement of his expenses. Yet, as with the rule of no liability for nonfeasance, it proves surprisingly difficult to find any authority for this supposed principle. While there seems to be no authority for the supposed principle of denying voluntary interveners a claim, English law does not appear to contain a general principle that does grant interveners a claim. And whilst most of the English doctrines discussed in this chapter merely allow claims for reimbursement of expenses and/or compensation of loss, the salvage cases form an obvious exception, as well as some cases in equity, where trustees were on occasion remunerated for services voluntarily rendered.Less

Towards a General Principle: Using the Existing Doctrines?

Jeroen Kortmann

in Altruism in Private Law: Liability for Nonfeasance and Negotiorum Gestio

Throughout the centuries, the courts' attitude towards necessitous interveners has been ambiguous. There are numerous obiter dicta that oppose the granting of a claim to the intervener. Yet, there is ... More

Throughout the centuries, the courts' attitude towards necessitous interveners has been ambiguous. There are numerous obiter dicta that oppose the granting of a claim to the intervener. Yet, there is an ever-growing list of cases in which the courts have granted a claim to the voluntary intervener. Regrettably, in granting such claims, the courts have resorted to a variety of doctrines. It is here suggested that the law ought to work towards a general principle allowing voluntary interveners to recover. The logical first step in this process is to investigate whether any of the existing doctrines can be extended so as to incorporate such a general principle. Some of these doctrines can be dismissed out of hand. The law of contract is the first amongst these. Of course, the implied contract theory could have been employed to develop a general principle.Less

Towards a New General Principle

Jeroen Kortmann

in Altruism in Private Law: Liability for Nonfeasance and Negotiorum Gestio

It is seen that none of the existing doctrines possess the right tools for the development of a general principle that allow the intervener to recover. This chapter discusses the alternative to this, ... More

It is seen that none of the existing doctrines possess the right tools for the development of a general principle that allow the intervener to recover. This chapter discusses the alternative to this, which is to develop a separate doctrine. In doing so, the doctrine to be developed must first of all succeed in removing the existing disincentives against voluntary intervention. To the potential intervener, the intervention must therefore at least appear cost-neutral. Furthermore, whether or not success should be required largely depends on the measure of recovery that is allowed to the intervener. Then to allow the intervening roof contractor full remuneration even where no success has been achieved, would be to grant him more rights than he would have had if he had had the opportunity to negotiate with the defendant. Most contracts for professional services, however, require the application of best endeavours, not results.Less

Conclusion: One Problem among Many? An Integrated Response to Sexual Exploitation and Abuse

Jasmine-Kim Westendorf

in Violating Peace: Sex, Aid, and Peacekeeping

This concluding chapter discusses how intervener cultures interact with the broad range of factors that challenge and undermine the effectiveness of peace operations, including by giving rise to the ... More

This concluding chapter discusses how intervener cultures interact with the broad range of factors that challenge and undermine the effectiveness of peace operations, including by giving rise to the perpetration of sexual misconduct against local communities. In light of this, it details the key insights this book has revealed about the nature and impacts of sexual misconduct by interveners in peace operations and suggests how the international community might better address this issue and its complex, interlinked implications in the future. The chapter also reflects on the major shortcomings of policy on sexual exploitation and abuse to date, including the individualization of sexual exploitation and abuse, which relegates responses primarily to conduct and discipline policies rather than addressing the broader and systemic issues at play. It then considers the extent to which recent policy shifts might avoid replicating past mistakes in terms of sexual exploitation and abuse policy. Ultimately, recognizing the mutually reinforcing ways in which sexual exploitation and abuse by interveners undermines peacekeeping and peacebuilding outcomes and developing an effective and robust response to such misconduct and other interlinked peacekeeping challenges based on that understanding is crucial to the pursuit of global peace, order, and justice.Less

Theoretical Arguments against Granting a Remedy to the Intervener

Jeroen Kortmann

in Altruism in Private Law: Liability for Nonfeasance and Negotiorum Gestio

This chapter explores the theoretical arguments against granting a remedy to the intervener. Here, one can distinguish the following main arguments against the imposition of a duty to reward or ... More

This chapter explores the theoretical arguments against granting a remedy to the intervener. Here, one can distinguish the following main arguments against the imposition of a duty to reward or remunerate the good Samaritan or even to merely reimburse his expenses: granting a claim would lead to ‘ruinous litigation’, it would lead to ‘the overthrow of personal rights and civil freedom’, and it would do ‘violence to some of the kindest and best effusions of the heart’. This chapter discusses each of these arguments separately. In addition, it also investigates whether a change in the law might lead to abuse by meddlesome interveners looking to make a profit. Furthermore, if justice requires the introduction of a general right, the mere possibility of abuse should not be enough to reverse it. There are many existing doctrines that are open to abuse.Less

Theoretical Arguments in Favour of Granting a Remedy to the Intervener

Jeroen Kortmann

in Altruism in Private Law: Liability for Nonfeasance and Negotiorum Gestio

This chapter explores the theoretical arguments in favour of granting a remedy to the intervener in Continental Europe. One of the main arguments that have been used to justify the granting of a ... More

This chapter explores the theoretical arguments in favour of granting a remedy to the intervener in Continental Europe. One of the main arguments that have been used to justify the granting of a claim to the intervener has been that the law ought not to discourage interveners. Amongst English and American scholars, too, those who argue in favour of granting a remedy to the intervener usually invoke this policy argument. Under the present policy argument, it is assumed, potential good Samaritans are discouraged because their intervention might prove to be a costly affair if the beneficiary refuses to reimburse their expenses and compensate them for their losses. The solution, it is argued, is to introduce a right to be compensated for the loss incurred during the intervention — to ‘offset pre-legal countervailing disincentives’ — or even a right to a positive reward in order to actively encourage intervention.Less

Full Circle

Julian Petley

in Film and Video Censorship in Contemporary Britain

This chapter explores why the Video Recordings Act (VRA) looks set to be a permanent feature on the statute book. A draft Video Recordings Bill was notified to the EC on 10 September 2009. The ... More

This chapter explores why the Video Recordings Act (VRA) looks set to be a permanent feature on the statute book. A draft Video Recordings Bill was notified to the EC on 10 September 2009. The British Video Association urged its members to continue submitting DVDs as normal to the British Board of Film Classification (BBFC). The Secretary of State for Culture, Media and Sport played the role of ‘intervener’ with the result that the Obscene Publications Act is abolished. ‘Harm’ is defined in the context of media legislation. It is argued in this chapter that the VRA should simply be abolished hook, line and sinker. As far as film and video censorship in contemporary Britain is concerned, the message from the political class continues to ring out loud and clear: there is no alternative.Less

Interventions in Judicial Review Proceedings

Nathalie Lieven

in The Civil Procedure Rules at 20

This chapter examines the growth and value of interventions in judicial proceedings. It argues the exponential growth in interventions is largely attributable not to the CPR, but the introduction of ... More

This chapter examines the growth and value of interventions in judicial proceedings. It argues the exponential growth in interventions is largely attributable not to the CPR, but the introduction of the Human Rights Act. The decision whether or not to allow an intervention, and then whether to give any weight to its content is wholly discretionary. Interventions are part of a wider trend to an increasingly inquisitorial jurisdiction, beyond the adversarial contest between the parties. Two reasons for the growth in interventions are courts’ willingness to take into account broader policy considerations in judicial review proceedings, and relatedly the willingness of the courts to hear international law and comparative law arguments and place weight on them. The Supreme Court, in particular, has encouraged interventions in recent years, and Baroness Hale has made clear in writing how useful she finds them. Although interveners are now subject to the risk of adverse costs orders under the Criminal Justice and Courts Act 2015 for interventions deemed to be unhelpful, to date these provisions do not appear to have been applied, which suggests that that this part of the Government’s efforts to discourage interveners has been unsuccessful.Less

Introduction

in Foreign Powers and Intervention in Armed Conflicts

This book presents a theoretical and empirical effort to bring external interveners back into the study of armed conflict. It builds a coherent research program of intervention based on the economic ... More

This book presents a theoretical and empirical effort to bring external interveners back into the study of armed conflict. It builds a coherent research program of intervention based on the economic liberalism variant of the liberal paradigm. It argues that intervener states' security considerations and economic interests in the belligerents drive their decisions. External stimuli are viewed as agents of intervention that downplays state preferences and domestic imperatives in decision making. Moreover, the book develops a causal framework that explicitly considers the domestic dimension of economic interests and the institutional environment in which privately organized groups, individuals, and firms that carry out trade interact with their government. Finally, an overview of the chapters included in this book is given.Less

Intervention

Gennaro Chierchia

in Logic in Grammar: Polarity, Free Choice, and Intervention

It has been noted in the literature that NPIs are degraded if there is an intervening element (typically, a non weakest member of a scale) between them and, in traditional terms, their licensor (in ... More

It has been noted in the literature that NPIs are degraded if there is an intervening element (typically, a non weakest member of a scale) between them and, in traditional terms, their licensor (in our terms, the exhaustifying operator). This chapter discusses this phenomenon and investigates several arguably related cases of intervention by presupposition triggers. The proposal is that this effect follows as a case of minimality. If. in probing for a Polarity Sentitive item, O finds along its path a closer alternative bearer (i.e. a scalar term), it is forced to activate the alternatives of the scalar term. In negative contexts, this brings about a positive implicature that makes exhaustification fail. Relativized minimality explains why phrasal interveners (e.g. strong quantified NPs) are generally more disruptive than heads (e.g. modals). This approach is extended to presuppositional intervention (diagnosed by V. Homer) in two ways. Some presuppositional triggers (most prominently factives) turn out to be a special case of scalar triggers (as argued by J. Romoli). Others are argued to take on the behavior (and featural make up) of strong NPIs. In all three major cases of intervention considered in this chapter, syntactic locality plays a crucial role exposing the interconnected nature of the syntax and semantics of exhaustification.Less

The History and Nature of Sexual Misconduct in Peace Operations

Jasmine-Kim Westendorf

in Violating Peace: Sex, Aid, and Peacekeeping

This chapter traces the history of sexual exploitation and abuse in peace operations globally, including the various forms it takes (only some of which are criminal) and the range of international ... More

This chapter traces the history of sexual exploitation and abuse in peace operations globally, including the various forms it takes (only some of which are criminal) and the range of international interveners who perpetrate it. Sexual exploitation and abuse first emerged as an issue in peace operations during the United Nations Transitional Authority in Cambodia (UNTAC) in 1993, when the number of prostitutes in the country grew from six thousand before the United Nations arrived to more than twenty-five thousand in 1993. The data available on sexual exploitation and abuse perpetrated by interveners suggests that the range of misconduct is diverse, encompassing opportunistic sexual abuse, transactional sex, networked sexual exploitation, and extremely violent or sadistic attacks. The chapter presents an account of how and why these behaviors occur in peace operations by investigating the local, international, normative, systemic, and structural factors that give rise to them. It also addresses the connections between sexual misconduct by interveners, conflict-related sexual violence perpetrated during wars, and the sexual harassment and abuse that is perpetrated by interveners against their colleagues in peace operations.Less

Sexual Exploitation and Abuse in Bosnia and Timor-Leste

Jasmine-Kim Westendorf

in Violating Peace: Sex, Aid, and Peacekeeping

This chapter presents the case studies that underpin the analysis of the long-term impacts of sexual exploitation and abuse. It develops a detailed account of the context, nature, and scale of sexual ... More

This chapter presents the case studies that underpin the analysis of the long-term impacts of sexual exploitation and abuse. It develops a detailed account of the context, nature, and scale of sexual misconduct during peace operations in Bosnia and Timor-Leste, drawing extensively on primary research in the two countries. The behaviors spanned all four types of misconduct and were perpetrated by a variety of uniformed and civilian interveners, including peacekeepers and non-UN personnel associated with the international community's presence in each country. They confirm many of the trends identified in the previous chapter about patterns of perpetration and contributing factors. However, this analysis also demonstrates that the ways in which local communities experience sexual exploitation and abuse is grounded in historical experience, cultural norms, and, in many ways, the particular forms of material deprivation and conflict-related sexual violence experienced, with significant variation between what was considered inappropriate behavior in the two countries.Less

Making Matters Worse: The Long-Term Impacts of Sexual Exploitation and Abuse

Jasmine-Kim Westendorf

in Violating Peace: Sex, Aid, and Peacekeeping

This chapter investigates the micro- and mission-level impacts of sexual exploitation and abuse perpetrated by interveners in peace operations on the international community's capacity to fulfill its ... More

This chapter investigates the micro- and mission-level impacts of sexual exploitation and abuse perpetrated by interveners in peace operations on the international community's capacity to fulfill its goals related to security, stability, and peacebuilding in postconflict contexts. These impacts operate on three levels: the individual and community level, the structural level, and the operational level. One fairly obvious conclusion arising from this analysis is that, in perpetrating sexual exploitation and abuse, interveners commit human rights violations, consolidate structures and processes that facilitate further exploitation and abuse, and spark conflict with actors who object to such behaviors. Thus, these outcomes are not in line with general expectations of the impacts peacekeepers should have on local populations and host states. Sexual exploitation and abuse is a significant source of mistrust between local communities and the international intervention, particularly as it intersected with other behaviors that amplified and exploited the power imbalance between international interveners and local communities.Less

Presuppositional Islands*

Márta Abrusán

in Weak Island Semantics

This chapter proposes a semantic account for factive and other presuppositional islands. The central claim made is that these islands arise because they trigger contradictory presuppositions. The ... More

This chapter proposes a semantic account for factive and other presuppositional islands. The central claim made is that these islands arise because they trigger contradictory presuppositions. The reason a contradictory presupposition arises in the case of manner and degree islands is based on two independently motivated assumptions about the domain of manners and degrees. The first is that the domain of manners contains contraries. The second is that degree predicates relate individuals to intervals (cf. Schwarzschild and Wilkinson 2002, Heim 2006). Because of these particular properties of the domains of manners and degrees, there will always be at least two mutually incompatible propositions that are part of the set of presuppositions of the question. But since no context can entail two mutually exclusive propositions, there is no context in which an answer to manner or degree questions containing the above-mentioned presuppositional items can be asserted.Less

The Influence of the Parties on Judges: Accuracy or Affiliation?

Benjamin Alarie and Andrew J. Green

in Commitment and Cooperation on High Courts: A Cross-Country Examination of Institutional Constraints on Judges

High courts differ in the processes for choosing who sits on the court, the size and composition of panels, and the cases the court hears. Once the case is before the court, a judge may also be ... More

High courts differ in the processes for choosing who sits on the court, the size and composition of panels, and the cases the court hears. Once the case is before the court, a judge may also be influenced by the parties that appear in the appeal. This chapter examines this influence. The government, for example, tends to be more successful in many cases than other parties. This success may be due, for example, to the government having more resources than other parties or being a repeat player in front of the court. Further, judges seem to at least be modestly influenced by interveners, who are not actually the parties to the appeal but seek to provide additional information. Judges appear to consider the information provided by the interveners in some contexts, though the presence of interveners also appears connected to an increase in the probability of a judge dissenting.Less

Responsibility and the Actual Sequence

John Martin Fischer

in Oxford Studies in Agency and Responsibility: Volume 3

The Frankfurt cases motivate the notion that we should adopt an “actual-sequence” approach to moral responsibility. On this sort of view, moral responsibility does not require freedom to do ... More

The Frankfurt cases motivate the notion that we should adopt an “actual-sequence” approach to moral responsibility. On this sort of view, moral responsibility does not require freedom to do otherwise; rather, it is a function of (possibly modal) characteristics of the actual sequence leading to the behavior in question. This chapter addresses a significant challenge to the actual-sequence approach; the challenge has it that we cannot extrapolate from classical Frankfurt-style cases to a conclusion about the compatibility of causal determinism and moral responsibility, since the Frankfurt-style cases feature “counterfactual interveners,” whereas causal determination is a property of the way the actual sequence unfolds.Less