“Protection of the Right to a Fair Trial and Civil Jurisdiction: Permitting Delay, Restricting Access and Recognising Incompatible Judgments”. Below is my honours law dissertation together with tips and a very special video from an ex-Cambridge professor at the end.
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How to write a first class legal dissertation: Content and StructureThree tips can be suggested to get you started on the right foot:First, research the subject in which you are most interested in writing about for your dissertation, then choose a sufficiently narrow angle to approach the subject or choose something that hasn’t been discussed much before. Second, collect, or print out or photocopy all relevant materials which discuss that narrow subject.
Third, plan rough headings for sub-topics within the main subject. While the contents below were finalised towards the end of the writing process, the rough structure was formulated at an early point in the writing process.
This is how many academics write their books: they provide themselves with lots of headings and subheadings, then chip away at the work, bit by bit until complete. Examples contents for “Protection of the Right to a Fair Trial and Civil Jurisdiction: Permitting Delay, Restricting Access and Recognising Incompatible Judgments” are as follows:-1.
REASONABLE TIMEWriting your introductionTogether with the conclusion, the introduction is one of the most significant pieces of a dissertation that you have to get right.
A well-written introduction can make all the difference between a first class and an upper second. If you take just one thing away from this series of posts, it is this.
You can develop a better stream of communication with your reader, forming a better relationship, if you tell them what you are going to say (introduction), say it (main body), then tell them what you have said (conclusion). So, to the introduction, set the scene as fast as possible then tell the reader what you are going to say, but don’t be so amateurish as to write “I am going to discuss X, Y and Z”.
Suggest, for instance, that there are problems with the law that need to be resolved.
INTRODUCTIONLong since inevitable initial encounters, human rights concerns, particularly regarding the right to a fair trial under Article 6 of the European Convention of Human Rights (ECHR), have been accelerating in today’s civil jurisdiction and judgments arena in the United Kingdom, a notable consequence of the passing of the Human Rights Act (HRA) 1998.
More than six years from the Act’s coming into force, it is now imperative to reach conclusions which reflect the “importance attaching in today’s world and in current international thinking and jurisprudence to the recognition and effective enforcement of individual human rights,” as Mance LJ (as he then was) has noted. This necessity is reflected in the recent extensive consideration of the right to a fair trial in key works of some of the most authoritative conflict lawyers in the United Kingdom, including Sir Lawrence Collins, Professor Adrian Briggs and, most significantly, Professor James Fawcett.
Methods of protecting the right to a fair trial and thus of avoiding a breach of Article 6 are irrelevant to the European Court of Human Rights (ECtHR); the Court is not concerned with reviewing under the Convention in abstracto the law complained of, but rather the application of that law. There is therefore a large amount of discretion afforded to the courts regarding techniques to avoid infringement of the Convention.
In the context of civil jurisdiction and judgments, various methods of avoiding infringement, or indeed enabling protection, of the right to a fair trial exist. However, the extent to which these have been used in practice, both by the UK courts and the ECJ, has been limited, a result of various factors, the most striking of which being the wrongful application of the ECHR and even the conscious decision to ignore it.
Before analysing specific fair trial concerns in detail, it is necessary to examine the general structure and operation of Article 6 as it applies to civil jurisdiction and judgments. Chapter 1: Setting the sceneDepending on the nature of your dissertation, you may need to set the scene further.
In a legal dissertation, by “scene” is meant the bits of law that are relevant to set up key arguments in the main body of the dissertation. With this example dissertation, the target readership was, for various reasons, international private law experts.
Because human rights law was a key part of the debate, the relevant law had to be set out in such detail that the chapters following it could discuss, for instance, the right to a fair trial and the doctrines of direct and indirect effect without any need for constant repetitive explanation. Substantive ElementsArticle 6(1) ECHR provides inter alia that “ i n the determination of his civil rights and obligations…everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…. ” The ECtHR has reverberated that “the right to a fair administration of justice holds such a prominent place” that Article 6 should not be interpreted restrictively.
Instead, the seemingly distinct provisions of Article 6 are not discrete, but are “rights which are distinct but stem from the same basic idea and which, taken together, make up a single right not specifically defined in the narrower sense of the term. ” This single right is the title of Article 6: the “right to a fair trial.
”This right comprises two particularly significant elements important in the context of civil jurisdiction and judgments. First, the right to a trial within a reasonable time.
Expressly stated in Article 6(1), this right may be pertinent where proceedings are stayed in favour of a foreign court. Second, access to a court, an inherent element of Article 6(1).
This may have relevance where access is denied to the UK courts through, for example, staying proceedings, or restraining foreign proceedings. 2 Procedural Operation: Direct and Indirect EffectArticle 6 can operate through a number of mechanisms in the civil jurisdiction and judgments context, which must be distinguished for analytical purposes. First, through direct effect, where there is direct protection of a party’s right to a fair trial in the domestic courts themselves.
Such protection is strong and somewhat easier to obtain because there is no test for the seriousness of the breach. Such infringement may occur through a refusal of access to the UK courts, which refusal may emanate from, inter alia, an exclusion of jurisdiction or stay of proceedings.
Second, through indirect effect, where a person is transferred to another country where his right to a fair trial may be infringed in that country. In Soering v United Kingdom the ECtHR emphasised that it was for Member States to secure Convention rights of persons within their jurisdiction, but that this obligation did not extend to non-Contracting States, nor should it seek to impose ECHR standards on such States.
Thus, for example, in respect of deportation of a person to the United States of America from England, there may be an indirect breach of Article 6, but only where the transfer creates or risks creating a flagrant breach of the claimant’s right to a fair trial in that other country. In presenting an argument for the creation of such risk, it is axiomatic that a strong compilation of evidence is essential, with reference to the circumstances of both the case and proceedings of the court in question.
The difficulty with such an argument in the civil jurisdiction sphere is that stays of proceedings concern transfers of actions abroad, not persons. Notwithstanding, arguments for the application of the indirect effect doctrine in this context are still applicable because the situations are “essentially the same.
” Indeed, it could be argued that staying proceedings amounts to a transfer of persons through effective compulsion. Nevertheless, no authority exists for this argument and indeed the indirect effect doctrine itself has not been successfully relied upon in an Article 6 context before the (former) Commission or ECtHR.
Third, through indirect effect where enforcement in a Contracting State of a judgment from a foreign State, whether Contracting or non-Contracting, would breach Article 6 because that judgment itself breached Article 6 standards. It has been stated that such a breach by the foreign court must also be a flagrant one.
However, the reasoning underlying this proposition is unclear and, as with many matters in the civil jurisdiction and judgments sphere, there are concerns as to the extent to which the right to a fair trial can be upheld in this respect. 3 The Human Rights Act 1998The Convention rights, including Article 6, now have the force of law in the United Kingdom under the HRA 1998. The Act places two initial express duties on the UK courts: first, the duty to read and give effect to primary and subordinate legislation in a way compatible with the Convention rights, if possible; second, the duty to take into account inter alia any previous judgment of the ECtHR in determining proceedings which have a Convention right element, insofar as it has relevance to those proceedings.
Moreover, under Section 6(1) of the HRA 1998, it is unlawful for a public authority, including a court, to act in a way incompatible with a Convention right. This is a significant duty on the courts, which indeed sparked considerable academic debate as to the Act’s impact on private commercial disputes.
Thus, the courts have a duty to interpret and apply the common law or any exercise of discretion compatibly with the right to a fair trial under Article 6. Ultimately, this may amount to a positive duty to develop the common law, extending beyond mere interpretation of the common law to conform to the Convention principles.
Notwithstanding this rather stringent theoretical framework for the courts upholding the right to a fair trial, there has been a lack of consistency in its practical impact in the field of civil jurisdiction and judgments. Endnotes*Converting c300 footnotes on a Microsoft Word document to a WordPress post is not feasible for this blawgger.
The full dissertation is available in the Juridical Review, vol 1 of 2008 pp15-31Delcourt v Belgium (1979-80) 1 EHRR 355, at 25 ; indeed, the principles of due process and the rule of law are fundamental to the protection of human rights (Clayton and Tomlinson: 2000, p550,) just as a fair trial is a fundamental element of the rule of law (Ovey and White: 2002, p139.
Such cases can be labelled “domestic” ones: Government of the United States of America v Montgomery (No 2) 2004 UKHL 37, at 15 , per Lord Bingham. R (Razgar) v Special Adjudicator 2004 AC 368, at 42 .
, at 113 ; this test has been followed subsequently: e. 71555/01, 16 October 2001) at 32 , Tomic v United Kingdom (no.
Montgomery (n12); Drozd and Janousek v France and Spain (1992) 14 EHRR 745, p795; cf.
, s2(1)(a); such previous decisions are not binding; notwithstanding, as Lord Slynn observed in R (Alconbury Developments Ltd) v Secretary of State for the Environment 2001 2 WLR 1389 at 26 : “ i n the absence of some special circumstances it seems to me that the court should follow any clear and constant jurisprudence of the ECtHR .
Such discretion should be “exercised with great caution and with close regard to the overall fairness of the proceedings”: R v Jones 2003 AC 1, at 6 , per Lord Bingham.
583, p783 (24 November 1997); Grosz, Beatson and Duffy: 2000, para.
Derbyshire CC v Times Newspapers Ltd 1992 QB 770.
Main Body Part 1Next follows the first main chunk discussing and debating the title of the dissertation.
To maintain structure, even this sub-section of the dissertation has its own introduction, some degree of scene-setting with Art 6 in the particular context of the chapter, argument through various levels and conclusions. IntroductionIt has been stated that “excessive delays in the administration of justice constitute an important danger, in particular for the respect of the rule of law” and for the legal certainty of citizens. This importance is reflected in the express protection of the reasonable time requirement in Article 6.
There have been recent challenges in the civil jurisdiction context on this ground, the most significant of which being raised in Erich Gasser GmbH v Misat Srl, concerning conflict with lis pendens. A further instance, the common law doctrine of forum non conveniens has been suggested to be so incompatible, which would therefore have implications for the doctrine in its now very limited common law habitat.
Framework under Article 6In civil cases, time starts to run when the proceedings are instituted and stops when legal uncertainty has been removed, which normally requires that the final appeal decision has been made or the time for making an appeal has expired. It is generally accepted that the correct approach is to decide whether the overall delay is prima facie “unreasonable” for the type of proceedings concerned and thereafter consider whether the State is able to justify each period of delay.
In assessing such justification, the limited guidelines indicate that all the circumstances will be considered, with particular regard to the complexity of the case and the conduct of the applicant and judicial authorities in addition to the behaviour of other parties to the case and what is at stake in the litigation for the applicant. Generally, where proceedings are stayed, there are three stages which must be distinguished for determining delay.
First, the proceedings before the domestic court. Any unjustifiable delay at this point would amount to a direct breach of Article 6.
Second, the transfer of proceedings to the foreign court. Delay at this stage would be less justifiable where, for instance, there was known to be a heavy backlog of cases. Notwithstanding, the “normal lapses of time stemming from the transfer of the cases” are not to be regarded as unjustified.
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Opinion of AG L ger in Owusu v Jackson C-281/02 2005 QB 801 at 270 . A sist by the Scottish courts through forum non conveniens can be made where jurisdiction is founded on Art.
4 of the Judgments Regulation or Convention: Collins et al: 2006, para. Moreover, a sist can be made on the ground that the courts of England or Northern Ireland are the forum conveniens, because intra-UK jurisdiction can be so settled: Cumming v Scottish Daily Record and Sunday Mail Ltd, The Times, 8 June 1995; Collins: 1995. fewer than six years for a reparation action (Huseyin Erturk v Turkey 2005 ECHR 630.
) Clayton and Tomlinson: 2000, p654; Harris, O’Boyle and Warbrick: 1995, p229. Eckle v Germany (1983) 5 EHRR 1, at 80 ; an obvious consideration being delay in commencing proceedings.
Zimmermann and Steiner v Switzerland 1983 ECHR 9; Guincho v Portugal 1984 ECHR 9; cf. Buchholz (n36), at 61 , where the backlog was not reasonably foreseeable; exceptional circumstances were taken into account in Foti (n37) as a result of troubles in Reggio Calabria, which impacted proceedings in the courts in Potenza, to which cases had been transferred.
ArgumentHaving set the scene, it is time to delve straight into comment and opinion, drawing on relevant facts and law where required.
Where possible, suggest ways in which events or decisions could have been improved and do not be afraid to say that commentators, judges or even powerful institutions, like the ECJ, got it wrong. Conflict with Lis Pendens: Erich GasserErich Gasser v MISAT concerned the validity of a choice-of-court agreement in favour of the Austrian courts where one party had first seised the Italian courts by way of negative declaration.
Second seised, the Austrian Court sought a reference from the ECJ on, inter alia, whether it must stay its proceedings under lis pendens where the proceedings in the court first seised generally take an unreasonably long time, such that there may be a breach of Article 6. Both the claimant and the intervening UK Government invoked the ECHR, arguing that Article 21 of the Brussels Convention should be interpreted in conformity with Article 6 ECHR to avoid excessively protracted proceedings, given that proceedings in Italy were likely to take an unreasonably long time.
Through this interpretation, it was argued that Article 21 should not be applied if the court first seised had not determined its jurisdiction within a reasonable time. In a very short response, the ECJ effectively said that the ECHR did not apply because first, it is not expressly mentioned in the Brussels Convention and second, there is no room for it in a collection of mandatory rules underpinned by mutual trust between Contracting States.
Delay in the Italian CourtHowever, it may be seen that the stay de facto risked at least a standard breach in the Italian court.
The Italian courts have been held in breach of Article 6 a staggering number of times because of unreasonable slowness. The existence of these breaches amounted to a practice incompatible with the ECHR and produced the notoriety of the Italian legal system as “the land that time forgot.
” Indeed, the practice of seising the Italian courts first by way of negative declaration has become known as instituting an “Italian torpedo,” which may succeed in delaying proceedings substantially even where the Italian courts have no jurisdiction. It has already been noted that evidence is crucial in determining a real risk of a breach of Article 6.
Instead, in Gasser, human rights arguments were based upon a general breach of the reasonable time requirement in Italian courts. Moreover, no ECtHR case law was relied upon when so arguing, nor was mention made of previous breaches.
Therefore, a very weak argument, if any, was laid before the ECJ in respect of a risk of a breach. In effect, the ECJ was being asked something tantamount to whether there should be an exception to Article 21 in respect of certain Member States, a question justifiably answered in the negative.
However, if the arguments had been more focussed, concentrating on the present case, with evidence to show the likelihood of breach in the Tribunale civile e penale di Roma, then the ECJ may have been more persuaded by Article 6 considerations, as Fawcett suggests. Notwithstanding previous delays, efforts have been made to reduce the backlog of cases.
This is somewhat owing to Article 13 ECHR, which requires Contracting States to provide persons with an effective national remedy for breach of a Convention right. Such domestic remedies assist in reducing further breaches and ultimately reduce the need for the indirect effect doctrine.
Thus, the Italian “Pinto Act” was passed, providing a domestic legal remedy for excessive length-of-proceedings cases. The existence of this remedy may have gone towards justifying application of Article 21, which indeed was one of the questions referred to the ECJ by the Austrian Court, although unanswered.
A Clash of TreatiesNevertheless, given that the ECJ so held that Article 6 considerations were irrelevant, there may be further legal implications, particularly for the Austrian Court which was required to stay its proceedings under the Brussels Convention.
If this stay created or risked creating a flagrant breach of the reasonable time requirement in the Italian Court, Austria may itself have breached Article 6 indirectly. Such an indirect breach is clearly not justifiable on the ground that Austria is party to the Brussels Convention or Regulation made under the European Treaties.
Hence, the judgment may lead to a clash between the ECHR and Brussels Convention or Regulation. This in turn raises the questions of how and to what extent the Brussels Convention or Regulation could have been interpreted to give effect to Article 6.
Formerly Article 57 of the Brussels Convention, Article 71 of the Brussels Regulation provides inter alia that “(1) t his Regulation shall not affect any conventions to which the Member States are parties and which in relation to particular matters, govern jurisdiction or the recognition of judgments. ” Although the ECHR is not prima facie a Convention governing jurisdiction, all Member States are party to it and Article 6 contains the inherent right of access to a court.
Thus, as Briggs and Rees argue, this may have application where a court with jurisdiction is prevented from exercising that jurisdiction in a manner compatible with the ECHR. Therefore, in Gasser Article 71 may have been applied to allow Austria to act in accordance with its obligations under the ECHR.
This approach is complemented by Article 307 (ex 234) EC such that Article 21 or 27 of the Brussels Convention or Regulation respectively can be overridden by a Convention previously entered into, including the ECHR. Further, this conclusion is even more realistic in light of the jurisprudence of the ECJ, which is peppered with notions of protection for fundamental rights, and the express protection of these rights in Article 6(2) EC.
Instead of even contemplating such an outcome, the ECJ showed that it was prepared to ignore a significant international convention. Perhaps, in addition to mutual trust between Contracting States, mutual recognition of international conventions should have been considered, especially due to the express provisions permitting such consideration.
Ferrari (n46), at 21 ; Article 6 imposes on the Contracting States the duty to organise their judicial systems in such a way that their courts can meet the requirements of the provision (Salesi v Italy 1993 ECHR 14, at 24 . ) Briggs and Rees: 2005, Preface to the Fourth Edition, p.
When Gasser came before the ECJ, there was already a delay in Italian proceedings of 3 years in determining jurisdiction.
However, even this has breached Article 6(1): Riccardo Pizzati v Italy 2006 ECHR 275, at 66 ; Mance suggests that the Act only partially solved if not repatriated the ECtHR’s overwhelming number of claims in this respect (Mance: 2004b, p357. ) Notwithstanding, since 1999, there has been a trend of continuous breach, the ECtHR having adopted more than 1,000 judgments against Italy (Riccardo Pizzati, at 66 .
) As Briggs and Rees note, the ECHR “might as well have been part of the law of Mars for all the impact it had. Hartley: 2005b, p821 n35; the most important example of a conflict of treaties: Hartley: 2001, p26. An approach recognised by both Mance (Mance: 2004a, paras. ) ERT v DEP C-260/89 1991 ECR I-2925, at 41 ; “Bosphorus Airways” v Ireland (2006) 42 EHRR 1,at 73 ; particularly for Article 6: Philip Morris International Inc v Commission of the European Communities 2003 ECR II-1, at 121 . Tip: Suggest Improvements for the FutureIt may be that, in the course of the research for your dissertation, you discover previous decisions and actions that may happen again in the future.
You may want to suggest that there is such a risk in the future and that there are ways in which that risk can be guarded against. You may also want to state challenges with implementing such safeguards.
For instance, in the below section, there is comment that the ECJ is, sometimes, so myopic that its stance won’t budge. Future ApplicationThe ECtHR has held that a failure by a national court to make a preliminary reference to the ECJ could be a breach of Article 6 ECHR in certain circumstances. Thus, it is arguable that where similar facts to Gasser arise again, the domestic court may have to make a reference to the ECJ, and in doing so, show cogent evidence of the risk of a flagrant breach, unlike that presented to the ECJ in Gasser.
In this context, the ECJ will have another chance to take human rights seriously, with the opportunity to apply Article 307 EC complementing Article 71 of the Brussels Regulation and jurisprudence both of the ECJ and ECtHR. Notwithstanding, given the ECJ’s swift dismissal of human rights concerns in Gasser in favour of the inflexible system of lis pendens, it appears unlikely that it would permit exception in the future.
For the ECJ legal certainty under the Brussels regime is clearly more significant than legal certainty either through party autonomy under jurisdiction agreements or through the right to a fair hearing within a reasonable time. As Merrett notes, “ t he ECJ simply does not see questions of jurisdiction as being concerned with private rights at all,” a stance which will need to change, particularly in light of the pressing atmosphere of today’s human rights culture.
Legal certainty is perhaps more significant under the Brussels Regulation, particularly illustrated by the addition of Article 30.
Hartley notes that this is perhaps not surprising given that the ECJ is more concerned with public law, and as such, should be expected to give more weight to State interests, rather than the interests of private parties (Hartley: 2005b, pp814-815.
)Take a proposition that has never been discussed and debate itAnother thing that truly separates a first class dissertation from a second class one is discussion of ideas and issues that have never before been discussed. The following is an example of such a proposition and discussion, all of which stemmed from one footnote in an academic article that said a certain proposition “had never been discussed before in the courts of the UK”.
Finding this loophole was essential to the dissertation’s success. Conflict with Forum non Conveniens An export of Scots law, forum non conveniens was accepted into English law in Spiliada Maritime Corporation v Cansulex Ltd, becoming indistinguishable from Scots law.
Under the Spiliada test, there are two stages: first, the defendant must show that there is some other available forum which is clearly more appropriate for the trial of the action, upon which a stay will ordinarily be granted; second, upon the first stage being satisfied, it is for the claimant to show, through cogent evidence, that justice requires that a stay should not be granted. Advocate General L ger has suggested explicitly that the forum non conveniens doctrine, as operating under this Spiliada test, may be incompatible with Article 6, given that the steps involved for the claimant in its application “have a cost and are likely considerably to prolong the time spent in the conduct of proceedings before the claimant finally has his case heard.
” Although the UK courts have never discussed this proposition, there is a potential that forum non conveniens is indeed incompatible with the reasonable time requirement in Article 6.
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” Notwithstanding, given that the same forum will rarely be in the best interests of all parties, particularly highlighted by different choice of law rules, choice of forum is of crucial importance and rightfully so contested 18 Feb 2016 - Get Best law assignment help & taxation assignment help by law Help, Homework help, Assignment & Dissertation writing service in Australia, where in the assignment, Tony writer of this website have good knowledge on .
In this respect alone, the time and cost involved may be justified.
Moreover, it should be noted that it is the defendant who asks for a stay, thus incurring additional expenses, which expenses he might be expected to pay. Application for a stay is usually, and perhaps ought to be, made early.
Procedural time-limits are set for such an application, despite the court retaining its discretionary power to stay proceedings. Notwithstanding, the longer an application is left, the greater the threat of the proceedings not being aborted as a matter of judicial reluctance.
Moreover, if Lord Templeman’s view that submissions should be measured in hours not days with the rarity of appeals holds true, such time and expense should be contained to a minimum. This can be contrasted with the American experience of the doctrine, where forum non conveniens can produce forum battles that can last for years, such that the doctrine may even be labelled a “delaying tactic.
First Limb of SpiliadaAs noted, there are various circumstances which can justify delay under Article 6.
In assessing the complexity of a case, consideration is given to the number of witnesses , the need for obtaining expert evidence and the later intervention of other parties. It can be seen that these factors mirror the appropriateness factors considered under the first limb of the Spiliada test.
Thus, in Lubbe v Cape Industries Plc the emergence of over 3,000 new claimants gave greater significance to the personal injury issues, the investigation of which would involve a cumbersome factual inquiry and potentially a large body of expert evidence, such that South Africa was rightfully identified as the most appropriate forum under the first limb of Spiliada. Moreover, in Spiliada, similar litigation had already taken place over another vessel, the Cambridgeshire, such that the proceedings would be more appropriate in England.
Termed the “Cambridgeshire factor,” it is persuasive where advantages of “efficiency, expedition and economy” would flow naturally from the specialist knowledge gained by the lawyers, experts and judges in the related proceedings. However, successful use of this factor has been extremely rare.
Although conveniens means “appropriate”, not “convenient”, considerations of convenience and expense are still relevant. Thus, in both The Lakhta and The Polessk , a stay was granted because the dispute could be resolved more appropriately in the Russian Court at far less expense and far greater convenience for those involved, in light of, inter alia, the availability of witnesses and other evidence.
Further, speed of a trial itself may be decisive in balancing appropriateness factors. For example, in Irish Shipping Ltd v Commercial Union, although the courts of both England and Belgium were appropriate, the dispute could be resolved more quickly in the English court given the more complex position of the plaintiff’s title to sue under the governing law in Belgium; therefore a stay of the English proceedings was refused.
Moreover, the availability of an early trial date is material in determining the most appropriate forum ; indeed, “speedy justice is usually better justice. ”It can therefore be seen that the factors considered in the first limb of the Spiliada test reflect the justifications for delay under the reasonable time requirement of Article 6(1) and indeed consideration of these factors may result in an overall speedier trial.
Hence, determining whether or not to apply the forum non conveniens doctrine is more than justifiable. Further, it is worth considering whether delay by the foreign court itself can be avoided.
Hare perceives that paragraph 42 of Owusu is “strangely reminiscent” of A.
, at 14 Develop that new debate and get creativeAs noted in the previous post, one of the most important breakthroughs in writing your dissertation can come from spotting a gap where something has not yet been discussed.
Once writing to fill that gap, it may be helpful to ask yourself what other angles there are to the debate. Or think about if the matter went to an official debate or, for law dissertations, to court.
Think about creative arguments that an advocate might run and try to develop them yourself. Such development can lead to your getting a first rather than a 2:1.
Second Limb of SpiliadaDelay in the foreign forum is a fundamental consideration when determining the interests of justice at the second limb of the Spiliada test and may even be decisive if the anticipated delay is excessive.
An example pertinent to justification under Article 6(1) is The Jalakrishna, where a delay of five years was anticipated if the case was tried in India, such that the claimant would be prejudiced given his need for financial assistance in light of his critical injuries in an accident. Thus, a stay was not granted, showing respect for both a potential delay itself and what was at stake for the claimant.
For example, in Konamaneni v Rolls-Royce Industrial Power (India) Ltd, Collins J (as he then was) recognised that the Indian legal system had made attempts to reduce its backlog of cases, such that in the absence of sufficient evidence of an anticipated delay, it would indeed be a “substantial breach of comity to stigmatise the Indian legal system in that way,” somewhat reflecting the principle that the claimant must “take the appropriate forum as he finds it.
”Indeed, one of the major advantages of the forum non conveniens doctrine is that it offsets the judge’s tendency to grab as many cases as he can and it respects the valuable international private law principle of comity. As Lord Diplock stated in The Abidin Daver, “judicial chauvinism has been replaced by judicial comity.
” However, the interests of States cannot always be reconciled with private party rights. When considering whether to stay proceedings, in light of Article 6, the interests of States should yield to the interests of private parties.
Thus, if evidence is sufficient to show a real risk of a flagrant breach in the foreign forum, as was not presented in Gasser, a stay should not be permitted. Again mirroring reasonable time justifications under Article 6, additional considerations of what is at stake in the litigation may arise and authorities may have to exercise exceptional diligence in the conduct of certain cases.
An ECtHR case, X v France shows that where a person sought compensation following infection with the AIDS virus, what was at stake was of crucial importance in determining the reasonableness of the length of proceedings. What is at stake will be relevant and probably decisive following a stay of proceedings under forum non conveniens, as The Jalakrishna shows.
Notably, in Owusu v Jackson, where forum non conveniens was not permitted, what was at stake for Owusu was significant as he was rendered tetraplegic through his accident. It can therefore be seen that forum non conveniens takes a pragmatic approach to preventing foreseeable unreasonable delays under the second limb of Spiliada.
Not only does this further justify operation of the doctrine under Article 6(1) through direct effect, it also greatly restricts, if not eliminates, the possibility of an indirect breach by the domestic court, given that the risk of a flagrant breach of the right to a fair trial is a fundamental factor of the interests of justice. Notwithstanding, herein there are still concerns in light of Professor Fawcett’s suggestion that a hybrid human rights/international private law approach should be taken such that Article 6 concerns should be identified first, taking into account ECtHR jurisprudence, and thereafter it should be for the flexible second limb of Spiliada to apply to resolve these issues.
Fawcett concedes that the same result will be achieved in most cases, yet suggests that there may be borderline cases where this solution would work better and human rights concerns will have been taken more seriously. However, this need for procedural restructuring of judicial reasoning is arguably not wholly convincing, particularly given that the indirect effect doctrine under Soering requires a flagrant breach of Article 6, not merely a standard breach; it is therefore difficult to imagine the existence of any “borderline” cases as such.
Moreover, in the cases of potential flagrant breaches, the interests of justice principle has been shown to be flexible enough to prevent stays which may breach Article 6 indirectly, regardless of the classification of the delay as a breach of human rights or otherwise. In this respect, it is arguable that the international private law case law could be adequately relied upon.
Nevertheless, initial consideration of ECtHR jurisprudence may have more importance than in providing a mere procedurally attractive measure; it may guide and influence those who fail to see the pressing importance of human rights today and will at least effect compliance with the Section 2 of the HRA 1998 which demands that such jurisprudence be considered wherever Convention rights are in issue. EndnotesThe Vishva Ajay 1989 2 Lloyd’s Rep 558, p560; Chellaram v Chellaram 1985 1 Ch 409, pp435-436; cf.
The Nile Rhapsody 1992 2 Lloyd’s Rep 399,pp413-414, where Hirst J gave “minimal weight to the delay factor” upon direction by the appellate courts. Notwithstanding, the ECJ’s taking 2 years to produce its judgment did not go towards acknowledging the express request by the English Court of Appeal to provide reasonably quick compensation.
Of course, time taken for a required preliminary reference from the ECJ is entirely justified under Article 6 (Pafitis v Greece (1999) 27 EHRR 566, at 95 . Put your foot in the icy water: Don’t be afraid to come to powerful conclusionsA dissertation that is written with balanced conclusions is a boring one.
Nothing would get done in this world if we said “X is right, but Y is equally right, so let’s just leave things the way they are”.
Sitting on the fence may well get you a good upper second class award but there is little chance of it getting you a first. A certain English teacher, Sandra MacCallum, at Kyle Academy once taught that, sometimes, “you’ve got to put your foot into the icy water”.
Hopefully the below example, with a reasonable, opinionated attack on the ECJ’s lack of respect for the common law principles of the Scottish export doctrine forum non conveniens, illustrates the significance of this suggestion.
ConclusionsIt is perplexing that in Owusu Advocate General L ger, and perhaps indirectly the ECJ, suggested that applying forum non conveniens may be incompatible with the “reasonable time” requirement of the right to a fair trial under Article 6(1), whereas analysis of its proper operation shows that it is compatible and may even be a useful tool in providing faster and more economic litigation. Although it is at least somewhat refreshing to see ECHR arguments being acknowledged in an international private law context without encouragement, it is nevertheless peculiar that Article 6 concerns have been identified in relation to forum non conveniens, “one of the most civilised of legal principles” as Lord Goff of Chieveley put it, when the ECJ did not properly apply or even consider Article 6 in Gasser, where the need for its recognition was much more significant.
The ECHR is not an optional instrument that can be applied to justify a course of reasoning, however misguided, on the one hand and dismissed when apparently greater considerations require it on the other; careful legal analysis is required for its operation, which analysis does not appear to have been applied or even respected by the ECJ. A fresh perspectiveSeparating a dissertation into manageable chunks from the initial stages of structural planning gives you freedom to start afresh to write about a different but related topic once concluding another section.
Access to a court, for instance, is a separate right from the right for a trial to be heard and decided within a reasonable time. It, thus, merits a separate chapter with its own introduction, subsections and conclusions.
Operation in Article 6The fair, public and expeditious characteristics of judicial proceedings expressed in Article 6 would be of no value at all if there were no judicial proceedings.
Thus, referring to the rule of law and avoidance of arbitrary power, principles which underlie much of the ECHR, the ECtHR has held that the right of access to a court is an element inherent in Article 6(1). Although this right is not absolute, any limitation must not restrict access to such an extent that the very essence of the right is impaired, provided that a legitimate aim is pursued with proportionality between the limitation and that aim.
The potential for this right to arise in the civil jurisdiction context is high, given the intrinsic nature of the operation of jurisdiction rules. Anti-Suit InjunctionsA denial of access to a foreign court and, therefore, a potential Article 6 violation will occur through the grant of an anti-suit injunction, which seeks to restrain foreign proceedings.
This issue arose in The Kribi, where the claimants sought an anti-suit injunction to restrain Belgian proceedings brought in contravention of an exclusive jurisdiction agreement. Aikens J held that “Article 6…does not provide that a person is to have an unfettered choice of tribunal in which to pursue or defend his civil rights” .
Moreover, “Article 6…does not deal at all with where the right to a fair trial is to be exercised by a litigant. The crucial point is that civil rights must be determined somewhere by a hearing and before a tribunal in accordance with the provisions of Article 6.
”Therefore, a court granting an anti-suit injunction, in the very limited circumstances in which it can now do so, would not be in breach of Section 6 of the HRA 1988 where another available forum exists. Contrastingly, Article 6 challenges remain for the “single forum” cases, where there is only one forum of competent jurisdiction to determine the merits of the claim, despite the cases already being treated differently.
In such a case, the exemplary approach of Aikens J would easily resolve such human rights issues. Ultimately, in a commercially welcome judgment, human rights arguments were made and received properly.
Moreover, Aikens J “logically” dealt with the human rights points first. Hence the case is a working model for Fawcett’s hybrid approach where human rights should be considered first before international private law principles. Contrasting with stays producing concerns of unreasonable delays, in this context of access to a court there is more impetus to follow Fawcett’s model, particularly given that such denial of access can constitute a direct breach of Article 6, thus producing a more realistic threat of contravention of Section 6 of the HRA 1998.
Exclusive Jurisdiction Agreements and Waiving Convention RightsAnother instance pertinent to Article 6 is where a person has no access to the courts of the UK because of the enforcement of an exclusive jurisdiction agreement. Convention rights can, in general, be waived, including the right of access to a court under Article 6, which can occur where a jurisdiction agreement or agreement to arbitrate is valid and enforceable, but not where a person entered into the agreement without voluntary consensus.
Generally, rights will be waived under a jurisdiction agreement meeting the requirements of Article 23 of the Brussels Regulation. However, as Briggs and Rees note, there may be instances, somewhat unattractive, where a party is bound by such a jurisdiction agreement without voluntary consensus as such, such that his right of access to a court may not have been waived, reflecting the more prudent stance taken towards compulsory alternative dispute resolution.
Notwithstanding, Article 6 will be upheld provided there is another available court. Limitations on JurisdictionIt is axiomatic that limitations on jurisdiction may restrict access to a court.
The ECtHR has held that limitation periods are generally compatible with Article 6, particularly for reasons of legal certainty, provided that they are not applied inflexibly. This compatibility should encompass a stay under forum non conveniens for a forum barred by limitation, which is granted only where the claimant was at fault by acting unreasonably in failing to commence proceedings in the foreign court within the applicable limitation period.
Contrastingly, blanket limitations are a more difficult species. An example of a blanket exclusion on jurisdiction is the English common law Mo ambique rule, which provides that title to foreign land should be determined only at the situs of the land.
This may conflict with Article 6 because of a denial of access to an English court. Although this proposition may be unfounded, particularly where access to a court is available somewhere, the exclusion on jurisdiction may still be challenged on Article 6 grounds if disproportionate its aim.
Such proportionality concerns were considered in Jones v Ministry of the Interior of the Kingdom of Saudi Arabia. Following Al-Adsani v United Kingdom , a blanket limitation on jurisdiction was accepted because the grant of sovereign immunity, which restricted access to a court, pursued the legitimate aim of comity through compliance with international law and was proportionate.
Notwithstanding, underpinning this reasoning is an inevitable tension between the interests of States and private parties, such that Mance LJ (as he then was) in the Court of Appeal produced his judgment in light of ECHR considerations, taking a more flexible approach supportive of human rights. Mark v Mark also illustrates such inflexibility and proportionality considerations.
The limitation in that case prevented access to the English courts, which may have been the only available courts, through a particular rule of public policy. This rule was therefore seen by Thorpe LJ to be incompatible with Article 6 and hence the HRA 1998.
Contrastingly, in the House of Lords, Baroness Hale affirmed the decision on different grounds, dismissing ECHR considerations, such that she perhaps did not take human rights concerns entirely seriously. Although access to some court will be available following most limitations, the few cases where access would be denied to the only available court under a limitation warrant special attention in light of protection of the right to a fair trial.
Such attention has been properly given on occasion, as demonstrated by both Mance and Thorpe LJJ. However, this approach is not consistently followed, shown by the dangerous approach of Baroness Hale.
Interaction with Forum non ConveniensIn Lubbe v Cape Industries Plc, the defendant asked for a stay of proceedings. After identifying South Africa as the natural forum, the Court was faced with the argument that the stay would breach Article 6 because the complexity of the case and lack of funding were such that the claimant could not sue in that foreign court.
After applying the Spiliada principles, which provided that a stay should be refused because the claimant could not obtain justice in the foreign court, Lord Bingham then turned to the Article 6 arguments and noted simply that “I do not think article 6 supports any conclusion which is not already reached on application of Spiliada principles. ” Although the right to a fair trial was acknowledged and indeed protected under the refusal to grant a stay, the procedure in reasoning lowered the importance of human rights as the Spiliada principles took precedence to application of Article 6.
Thus, if the Lubbe approach was followed in the future and a stay was granted to a foreign court in which there was a risk of a flagrant breach, the court may indirectly breach Article 6 in addition to Sections 2 and 6 of the HRA 1998. Similar techniques to that employed by Lord Bingham have been used in other forum non conveniens cases.
For example, in The Polessk, the extent to which evidence showed the right to a fair trial in the St. Petersberg Court was considered under the second limb of the Spiliada test.
Moreover, as discussed, reasonable delay has been considered consistently, although somewhat effectively, within this second stage of Spiliada. As noted, these latter instances show a sufficient degree of reconciliation with at least the indirect effect of Article 6, regardless of the characterisation of the breach as one of Article 6 or otherwise, particularly because it is difficult to imagine “borderline” cases amounting to flagrant breaches of Article 6, as Fawcett suggests.
This analysis can be applied equally to the facts of Lubbe where access to the foreign court clearly did not exist, such that a stay would unequivocally produce a flagrant breach. It may be suggested that other cases are not so easy to evaluate, such as in determining whether access to a court exists through lack of legal aid, as Santambrogio v Italy illustrates.
Nevertheless, surely if the decision is a difficult one to make, then the breach cannot be flagrant and, as such, there cannot be an indirect breach of Article 6. However, as noted, a procedural shift in judicial reasoning will have undoubted procedural benefits, if at the very least it effects compliance with Section 2 of the HRA 1998.
, at 36 ; this includes the right to a determination of proceedings on the merits (Gorbachev v Russia, No.
Ashingdane v United Kingdom 1985 ECHR 8, at 57 .
OT Africa Line Ltd v Hijazy (The Kribi) 2001 Lloyd’s Rep 76; now overruled on the specific point for decision (Turner v Grovit and Others 2005 AC 101). Following Turner v Grovit (n131), a court cannot grant an anti-suit injunction against a party who has commenced an action in a Brussels Convention State. British Airways v Laker Airways 1983 AC 58,at 80 .
Pfeiffer and Plankl v Austria (1992) 14 EHRR 692; cf. Deweer v Belgium (1979-80) 2 EHRR 439; indeed, this is a “natural consequence of the parties’ right to regulate their mutual relations as they see fit. under the common law (The Pioneer Container 1994 2 AC 324); Briggs and Rees: 2005, p19. a person not party to a bill of lading bound by a jurisdiction agreement between shipper and carrier.
Stubbings v United Kingdom 1996 ECHR 44, at 51 .
British South Africa Co v Companhia de Mo ambique 1893 AC 602; for Scotland, Hewit’s Trs v Lawson (1891) 18 R 793.
Markovic v Italy 2006 ECHR 1141, which held that although there was no blanket limitation on jurisdiction through sovereign immunity and that access to a court had been afforded, access was nevertheless limited in scope, such that the applicants could not receive a decision on the merits. Get creative!Creative argument is essential if you’re going to get a first.
Perhaps only unless your tutor or professor doesn’t know the topic well can you get away rehashing old argument and ideas that have been discussed thousands of times before. Having worked with academia in trying to commercialise intellectual property rights (IP), through, for instance, spin-off companies, it is clear that innovation is crucial for the business models of universities.
It goes something like this: University teaches its students; Students produce research in which they and/or the university have IP, such as copyrights or patents; Student and/or university commercialises that IP by selling or licensing it to journals or other entities, such as companies. Money, then, gets reinvested into the system or society, which gets to work with the new innovation or improvement.
The below argument is example of how such creativity can light up your dissertation, add value to your University and get you a better mark overall. Owusu v JacksonFurther relevance of Article 6 can be seen in the context of the ECJ’s analysis of forum non conveniens in Owusu v Jackson.
Fundamentally wrong, the ECJ believed that a defendant “would not be able…reasonably to foresee before which other court he may be sued. ” However, it is the defendant who asks for a stay and thus his foreseeability of a stay in this respect is secured.
Article 6 is underpinned by the principle of legal certainty. Although legal certainty has specific provision in some articles of the ECHR, it is not confined to those articles; the specific provisions require domestic law “to be compatible with the rule of law, a concept inherent in all the articles of the Convention.
” Legal certainty comprises the particularly significant aspect of foreseeability. In this regard, the ECtHR has noted that: “a norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able…to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.
” It is at least arguable that this would encompass procedural certainty emanating from rules of jurisdiction. If the forum non conveniens doctrine permitted stays without the defendant’s asking, the defendant would have such little legal certainty that there may even be an arguable infringement of his right to a fair trial under Article 6, not only incompatible with the higher test of legal certainty of jurisdictional rules under the Brussels regime.
This would result from the defendant’s lack of foreseeability as to where proceedings against him would take place. Contrastingly, cogent arguments can be made against forum non conveniens, inter alia, because of the uncertainty for the claimant.
Notwithstanding, it could be said that his rights under Article 6(1) are upheld through his right of access to a court somewhere else. Moreover, he would have much more legal certainty than that of the defendant under the ECJ’s interpretation of forum non conveniens because stays under proper operation of forum non conveniens are granted, to some extent, within the confines of regulated and foreseeable discretion.
It can therefore be seen that the ECJ had analysed something which would be incompatible not only with Scottish and English law, but also with the ECHR and HRA 1998. Although a proper analysis of forum non conveniens would probably not have altered the outcome of Owusu, it would have been much more respectable to the common law, already set to be dismantled through an inevitable course of Europeanization, not to knock down, to some extent, a “straw man.
ConclusionsIt is clear that there are disparate approaches to the right of access to a court, perhaps emanating in part from varying attitudes to the importance of human rights. Most civil jurisdiction cases will involve access being denied to one court, while access to another is still available.
These will generally not breach Article 6 since there is no right of preference of court under Article 6 as Aikens J held in The Kribi, a judgment fully respectable of human rights. Contrastingly, in the limited number of cases which do yield Article 6 concerns, respect for human rights has been inconsistent, a worrying position particularly in light of the recognition of new, potential Article 6 challenges, such as in the areas of exclusive jurisdiction agreements and limitations on jurisdiction.
Notwithstanding, such concerns may be unfounded, given the flexibility of international private law rules, such as the demands of justice under the second limb of Spiliada, which can effectively prevent indirect breaches of Article 6. Sunday Times (No1) v United Kingdom 1979 ECHR 1, at 49 . Harris: 2005, p939; despite a lack of express mention by the ECJ in Owusu (n29); cf.
RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS5.
Recognition of Contracting State JudgmentsAn indirect breach of Article 6 may occur where a court recognises and thus enforces a judgment obtained in foreign proceedings contrary to the requirements of Article 6.
Little challenge is presented where that judgment is obtained in a court of a State party to the ECHR; in such a case, recognition can be refused through Article 6 which is a facet of public policy under Article 27(1) of the Brussels Convention. Notably, Article 34(1) of the Brussels Regulation provides that the recognition must be “manifestly” contrary to public policy, implying a higher threshold than in Article 27(1).
The difference in wording is uncertain, but it is hoped that it will not be used to “sweep mere procedural defects under the rug. ” Indeed, the importance of the right to a fair trial to the rule of law cannot be underestimated and thus it is arguable that any breach of Article 6 will be manifestly contrary to public policy.
Notwithstanding, if the phrases “manifestly contrary to public policy” and a “flagrant breach of the ECHR” were to be compared, it may be just as arguable that a manifest breach of Article 6, not a standard one, is required for the operation of Article 34(1) of the Brussels Regulation. However, this may not be unwarranted in the context of judgments of Contracting States, as noted.
Through Krombach v Bamberski , the housing of Article 6 under public policy effectively creates a hierarchical system, whereby EC rules have precedence over human rights rules, particularly because of the ignorance of the indirect effect doctrine. However, this may not be wholly unwelcome in light of the potential existence of a common EC public policy, somewhat emanating from the harmonisation through the ECHR in 1950.
Moreover, as Meidanis suggests, the ECJ appears to see the protection of human rights as the common core of the European public policy and is prepared to sacrifice the basic principle of the free movement of judgments of the Brussels Convention to ensure protection of human rights. Notwithstanding, as noted, in other contexts, the ECJ does not so respect human rights, particularly highlighted by its emphatic rejection of Article 6 in Gasser.
Although the flexibility through the public policy exception does not extend to the rules relating to jurisdiction, there are other mechanisms for protecting human rights within the Brussels Convention and, especially, the Brussels Regulation. Recognition of Non-Contracting State Judgments More difficulty arises with recognition of a judgment obtained in a non-Contracting State.
European Court of Human RightsSuch recognition was permitted without reference to Article 6 in Drozd and Janousek.
However, in Pellegrini v Italy, the ECtHR held that the Italian court could not recognise a judgment obtained in a Vatican City court in contravention of Article 6 standards. This was so despite a Concordat between Italy and the Vatican requiring such recognition.
Pellegrini can be considerably demarcated from the Soering/Drozd line of cases, which requires a flagrant breach to have occurred in the non-Contracting State, the underpinning theory being the “reduced effect of public policy. ” Instead, Pellegrini requires full compliance with Article 6 standards as if the foreign court were party to the ECHR, such that failure to review a judgment against which standards is a risky practice.
Notwithstanding, the actual breach of Article 6 standards in Pellegrini was flagrant, despite the court’s omission of this, and therefore the judgment may not represent such a large departure from Drozd. Moreover, the “reduced effect of public policy” approach of Drozd was followed eight days prior to Pellegrini in Prince Hans-Adam II of Liechtenstein v Germany.
However, it is difficult to distinguish Hans-Adam II on its facts particularly given the sweeping reasoning in Pellegrini. Thus, as it stands, Pellegrini is the leading authority, prescribing the need for a review of foreign judgments against full Article 6 standards, ensuring full protection for the right to a fair trial.
It is nevertheless hoped by some that the case will be revisited, perhaps with the preference of a variable standard. Further, a dictum in Pellegrini may have the effect of requiring such review only where the judgment emanates from the courts of a State not party to the Convention.
Hence, as Kinsch submits, an a contrario reading may be imputed, such that review of Article 6 standards is optional where the judgment emanates from a Contracting State. However, this may not be wholly unwelcome given that the Member States of the EU are party to the ECHR in addition to the Brussels Convention and Regulation, which seek to limit the power of public policy from preventing recognition of judgments.
House of LordsIn stark contrast to Pellegrini, the House of Lords in Montgomery required a “flagrant” breach in the United States, a non-Contracting State, for the judgment not to be recognised.
Such a flagrant breach was not created in the United States and hence recognition of a judgment breaching regular Article 6 standards was permitted. In its judgment, the House of Lords attempted to distinguish Pellegrini through the existence of the Concordat between Italy and the Vatican City, which required Italy to ensure that the Vatican court’s procedure complied with the fundamental principles of Italian legal system, one being Article 6.
However, this is hard, if not impossible, to understand, particularly since it assumes that the Concordat of 1929, as amended, could incorporate ECHR standards, when the Vatican City deliberately refused to subscribe to the ECHR. Further, the ECtHR in Pellegrini did not suggest in its judgment that the relationship between Italy and the Vatican was material to its decision.
Therefore, Montgomery is seen to be wrong in so distinguishing Pellegrini. Briggs and Rees further suggest that the House of Lords applied the wrong test in Montgomery because of the analysis of deportation cases, such as Soering.
In such a case, a prediction is required, whereas in Montgomery, or indeed in any case concerning recognition, there was no need for such a prediction as the foreign judgment could already be seen to have breached Article 6. However, Soering requires that the person “has suffered or risks suffering a flagrant denial of a fair trial (emphasis added.
)” If he has already suffered a breach, there is no need for a prediction to be made; instead, the reason for the standard of flagrancy is based on the “reduced effect of public policy” theory, an approach followed in Drozd, as noted. The reasoning of Briggs and Rees in this respect is akin to that of the Court of Appeal in Montgomery where Lord Woolf CJ stated that “the reference in Soering at 113 to a future flagrant breach of Article 6 was no more than a dicta which should not be applied to the enforcement of a court order of a non-Contracting State.
” However, Drozd, which was not cited to, or considered by, the Court of Appeal, expressly requires such a flagrant breach of Article 6 if enforcement of a court order of a non-Contracting State is to be denied, which clearly has nothing to do with making predictions. Instead, as Briggs and Rees indeed note, the reason why the House of Lords applied the wrong test in Montgomery is that Pellegrini, the leading ECtHR authority which overrides Drozd, was wrongly distinguished and therefore permitted recognition of a judgment in contravention of ECHR jurisprudence.
It may be argued that this was not a case of human rights not being taken seriously, but was merely a case of wrongful interpretation of human rights law, yet this could only be accepted upon an assumption of the incompetence of the House of Lords. ConclusionsThe leading authority of the ECtHR on operation of the indirect effect doctrine with respect to recognising foreign judgments, Pellegrini demands a review of full compliance with Article 6 standards of foreign judgments, perhaps limited to those emanating from non-Contracting State courts.
Through this, the right to a fair trial can be fully upheld in national courts and, in the UK, breach of Section 6 of the HRA 1998 can be avoided. Notwithstanding, the House of Lords effectively got human rights wrong, thus paving the way forward for reduced protection of Article 6 in the UK.
However, this area is not devoid of hope; to effect compliance with this framework, Montgomery must be overturned, which does not appear too remote a possibility given the extensive criticism of the case. How to conclude a first class law dissertationThe conclusion to your dissertation is, arguably, the most important part and is, therefore, potentially a major differentiator between a first class dissertation and a second class one.
There are three things which you should bear in mind:-1. A well-written dissertation, thesis, essay or, indeed, any story should have three main parts to it: an introduction; a main body; and a conclusion.
It reflects any good piece of oratory: say what you’re going to say, say it, then say what you’ve said. In your conclusion, you are, thus, trying to tell the audience what you’ve said throughout your dissertation.
If the word limit is 10,000 words, 800-1000 words should, ideally, be used on your conclusion;2. Don’t be afraid to put your foot into the icy water.
As stated in an earlier section you should not be afraid to come to powerful conclusions even if they challenge the views of other academics, practitioners or even the general public, provided that your views can be fairly and reasonably supported. Which brings us to the third and most important aspect of any conclusion;3.
A well drafted conclusion should refer back to your analysis throughout your dissertation to support your suggested conclusions; it should not allow you to raise new arguments or thoughts which you haven’t already considered. Think about it like a civil proof in court: you conduct an examination-in-chief in which you ask open questions to get evidence from your witness; your opponent then cross-examines your witness to test their evidence; you then get a chance to re-examine the witness but you do NOT get a chance to raise anything new that was not covered in cross.
The conclusion to my dissertation, different from my Juridical Review version, is as below. Given the recent Supreme Court criminal law decision of Cadder v HMA, for which see the ScotsLawBlog Cadder article, the final words on getting human rights right attract even greater significance.
CONCLUSIONSThe right to a fair trial has produced much concern in the conflict of laws arena today, a particular result of the evolution of a more stringent human rights culture in the United Kingdom.
In the field of civil jurisdiction, the right to a trial within reasonable time and the right of access to a court, two of the most fundamental substantive rights of Article 6 ECHR, have emerged; in the sphere of recognition and enforcement of foreign judgments, the indirect effect doctrine, a key procedural element of the ECHR, which protects the right to a fair trial indirectly but nevertheless just as significantly, has arisen. International private law mechanisms exist for the reconciliation of Article 6 with the sphere of civil jurisdiction and judgments.
The extent to which these can be utilised to protect the right to a fair trial is undoubtedly immense. At the most extreme end of protection, Fawcett’s hybrid model could provide great procedural legal certainty, such that human rights concerns will be identified first, using ECtHR jurisprudence, following which international private law mechanisms can resolve these concerns with their inherent flexibility.
This strict approach is not unwarranted, particularly where judges fail to see the function or even importance of human rights. Pertinent examples include the misapplication of human rights by the House of Lords in Montgomery , which indeed must be rectified, and other approaches not confined to the courts of the United Kingdom; for instance, the embarrassingly misguided approach of the ECJ in Gasser , where it refused to recognise human rights concerns in its myopic pursuit of the objectives of the Brussels regime, unyielding with respect for concerns of private parties, when there were measures available for reconciliation.
This appears even more inadequate in light of Advocate General L ger’s later suggestions that forum non conveniens may actually be incompatible with Article 6, when the doctrine is more than justifiable as it seeks to produce faster and more economic litigation, through both the first and second limbs of Spiliada. Notwithstanding, the need for Fawcett’s model is more questionable in other situations; for instance, in those cases involving potential indirect breaches of Article 6 when transferring actions abroad, flexible international private law mechanisms appear to have been applied in a manner sufficiently compliant with the ECHR, regardless of the characterisation of the breach as one of Article 6 or simply of the demands of justice.
For example, the second limb of Spiliada has effectively prevented stays where there is a real risk of a flagrant breach abroad, as is the Soering threshold for such an indirect breach, whether regarding unreasonable delay or lack of access to a court. Fawcett concedes that the overall result of many cases will remain unchanged but suggests that “borderline” cases may exist which pose as pitfalls for the courts.
However, the requirement of flagrancy, as he correctly applied at the beginning of his analysis, makes the existence of such cases difficult, if not impossible, to imagine in practice. In this respect, Fawcett appears to be advocating an approach extending beyond avoiding breaching Article 6; instead, he is actively aiming at protection of a fair trial beyond the Article 6 threshold.
However, this is not unwelcome; the importance of Article 6 is so great that it is worth adopting the strict approach. The consistent use of ECHR jurisprudence at the outset will, at the very least, prevent a breach of Section 2 of the HRA 1998; further, it may assist those judges who are misguided or fail to see the importance of human rights today.
Ultimately, a strict approach may provide for considerable legal certainty in a fast and growing area of law which demands firm, human rights orientated answers. New: we have published guides to some of the best personal injury lawyers , settlement agreement solicitors and best employment lawyers in the UK, in addition to helpful guidance on a range of other legal issues which may be useful if you or a friend need to point someone in the right direction.
Note that nowadays you can also buy law dissertation advice but it’s best to tread carefully if researching such things. How to write a bibliography to conclude your first-class dissertationThere are three stages for completing an abundant and competent bibliography.
First, go into the footnotes on your document, select all, copy and paste to the foot of your article, then separate into different categories. Then, second, go back through the materials which you have read and add them.
Finally, third, sort alphabetically using Word or Excel. BIBLIOGRAPHYA and others v Denmark 1996 ECHR 2 AG of Zambia v Meer Care and Desai 2005 EWHC 2102 (Ch), appeals dismissed 2006 EWCA Civ 390 Airbus Industrie GIE v Patel 1999 1 AC 119 Airey v Ireland 1979 ECHR 3 Al-Bassam v Al-Bassam 2004 EWCA Civ 857 Amuur v France (1996) 22 E. 533 Andreucci v Italy 1992 ECHR 8 Ashingdane v United Kingdom 1985 ECHR 8 Att. 11960/86, 13 July 1990 Bensaid v United Kingdom (2001) 33 EHRR 10 Berghofer v. ASA SA Case 221/84 1985 ECR 2699 Berisford Plc v New Hampshire Insurance 1990 2 QB 631 Bock v.
Germany 1989 ECHR 3 Boddaert v Belgium (1993) 16 EHRR 242 Bosphorus Hava Yollari Turizm Ve Ticaret Anonim Sirketi(“Bosphorus Airways“) v Ireland (2006) 42 EHRR 1 Bottazzi v. Italy 1999 ECHR 62 Brazilian Loans (PCIJ Publications, Series A, Nos.
122) Bristow Heliocopters v Sikorsky Aircraft Corporation 2004 2 Ll Rep 150 British Airways v Laker Airways 1983 AC 58 British South Africa Co v Companhia de Mo ambique 1893 AC 602 Buchholz v Germany 1981 ECHR 2 Carel Johannes Steven Bentinck v Lisa Bentinck 2007 EWCA Civ 175 Ceskoslovenska Obchodni Banka AS v Nomura International Plc 2003 IL Pr 20 Chellaram v Chellaram 1985 1 Ch 409 Connelly v RTZ Corpn plc 1998 AC 854 Credit Agricole Indosuez v Unicof Ltd 2004 1 Lloyd.
s Rep 196 Cumming v Scottish Daily Record and Sunday Mail Ltd, The Times June 8, 1995 Darnell v United Kingdom (1993) 18 EHRR 205 Delcourt v Belgium (1979-80) 1 EHRR 355 Derbyshire CC v Times Newspapers Ltd 1992 QB 770 Deweer v Belgium (1979-80) 2 EHRR 439 Di Mauro v. Italy ECHR 1999-V Drozd and Janousek v France and Spain (1992) 14 EHRR 745 Eckle v Germany (1983) 5 EHRR 1 Elderslie Steamship Company v Burrell (1895) 22 R 389 Elefanten Schuh GmbH v Jacqmain (Case 150/80) 1981 ECR 1671 Erich Gasser GmbH v Misat Srl, C-116/02 2005 QB 1 ERT v DEP C-260/89 1991 ECR I-2925 F v Switzerland 1987 ECHR 32 Ferrari v Italy 1999 ECHR 64 Foti v Italy (1982) EHRR 313 Fritz and Nana v France, 75 DR 39 Golder v.
United Kingdom 1975 ECHR 1 Gorbachev v Russia, No. Government of the United States of America v Montgomery (No 2) 2004 UKHL 37 Guincho v Portugal (1984) 7 EHRR 223 H v France (1990) 12 EHRR 74 Hesperides Hotels Ltd v Aegan Turkish Holidays Ltd 1979 AC 508 Hewit’s Trs v Lawson (1891) 18 R 793. Irish Shipping Ltd v Commercial Union 1991 2 QB 206. Iveco Fiat v Van Hool Case 313/85 1986 ECR 3337 Jones v Saudi Arabia 2004 EWCA Civ 1394 JP Morgan Europe Ltd v Primacom 2005 EWHC 508 Katte Klitsche de la Grange v Italy (1994) 19 EHRR 368 Klockner Holdings GmbH v Klockner Beteiligungs GmbH 2005 EWHC 1453 Konamaneni v Rolls-Royce Industrial Power (India) Ltd 2002 1 WLR 1269 Konig v Federal Republic of Germany (1978) 2 EHRR 170 Krombach v Bamberski Case C-7/98 2001 QB 709 Kudla v Poland 2000 ECHR 512 Lacey v Cessna Aircraft (1991) 932 F.
2d 170 Ledra Fisheries Ltd v Turner 2003 EWHC 1049 Lubbe v Cape Industries Plc 2000 2 Lloyd’s Rep. 383 Malone v United Kingdom (1985) 7 EHRR 1 Malstrom v Sweden (1983) 38 Decisions and Reports 18 Manieri v Italy 1992 ECHR 26 Margareta and Roger Andersson v Sweden (1992) 14 EHRR 615. Markovic v Italy 2006 ECHR 1141 Maronier v Larmer 2003 QB 620 Matthews v United Kingdom 1999 ECHR 12.
Messier-Dowty v Sabena 2000 1 WLR 2040 Netherlands 6202/73 1975 1 DR 66 OT Africa Line Ltd v Hijazy (The Kribi) 2001 Lloyd’s Rep 76 Owens Bank Ltd v Bracco 1992 2 AC 433 Owners of the Atlantic Star v Owners of the Bona Spes (The Atlantic Star and The Bona Spes) 1974 AC 436 Owusu v Jackson and Others C-281/02 2005 QB 801 Pafitis v Greece (1999) 27 EHRR 566 Pfeiffer and Plankl v Austria (1992) 14 EHRR 692 Philip Morris International Inc v Commission of the European Communities 2003 ECR II-1 Prince Hans-Adam II of Liechtenstein v Germany ECHR 2001-VIII.
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