Aberdeen law student Iakov Shuvalov examines GDPR’s effectiveness in regulating ‘freemium’ business models, where ‘free’ services may compromise privacy

In the digital age, data has been regarded as the currency of the future. As a result, data is an asset that has grown in value and in its need for protection, and that is why the European Union (EU) implemented the General Data Protection Regulation (GDPR) in 2018. Aiming to empower individuals with control over their data and establish stricter privacy standards, the GDPR promised a paradigm shift and has received praise. However, a closer look reveals a critical shortcoming: the GDPR’s struggle to effectively apply, particularly to freemium models, a business model with significant presence in the average person’s life due to social media.

In the age of ubiquitous online services, the concept of “free” often comes at a hidden cost: our personal data. Freemium business models, particularly prevalent in social media platforms, thrive on collecting and monetizing user information. The current application of the GDPR falls short in its ability to regulate businesses that rely on data collection and monetization as their core revenue stream. This is because the application of the GDPR suffers from critical flaws in several areas, these being in the initial drafting and wording of the GDPR, in the GDPR’s application, and in the GDPR’s enforcement.

Issues in application

Widespread non compliance

A central argument for the GDPR’s ineffectiveness lies in the demonstrably high rate of non-compliance among websites. A web-scanning service analysing the 100 most popular websites in each of the 28 EU member states revealed a concerning lack of GDPR adherence. This study, while limited in its ability to definitively identify non-compliance within a website’s entire system, clearly demonstrates that many websites lack even the most basic GDPR implementation measures on their public interfaces. This widespread disregard for the regulation casts doubt on the ability of the GDPR to achieve its goals of data privacy protection.

This disregard is particularly worrying within the freemium landscape, where data collection and monetization are central to the business model.  Unlike other websites, data collection and user profiling are core functionalities for freemium services. Non-compliance with the GDPR in these areas directly undermines the service’s ability to operate its business model. But the most significant concern here is that if the GDPR is not effectively enforced within this sector, users are left unaware of how their data is being collected and used.

Issues in enforcement

Disproportionate impact

The GDPR’s application creates a concerning imbalance between small and medium-sized businesses (SMBs) and large corporations, particularly those operating under freemium models. While achieving GDPR compliance is crucial, the resources required – legal expertise, technical security measures, and ongoing data practice maintenance –  pose a significant burden for SMBs. These businesses often lack the financial and technical muscle of their larger counterparts.

This disparity creates a two-tiered system where resource constraints force many SMBs to fall short of full compliance, leaving them vulnerable to legal repercussions while for freemium social media giants whose business models rely heavily on data collection, potential GDPR fines become a mere cost of doing business. Their vast resources allow them to navigate GDPR complexities with relative ease.

This uneven playing field undermines the very purpose of the GDPR – a level playing field for data protection practices.  Currently, the system favours large corporations, particularly those in the freemium space. This stifles competition and innovation within the digital economy, as smaller businesses become discouraged from adopting data-driven technologies for fear of non-compliance.

Overall enforcement issues

The effectiveness of the GDPR in curbing privacy violations by freemium businesses is further hampered by significant challenges in its enforcement. While the GDPR outlines hefty fines for non-compliance, several factors create a lacuna in which freemium giants are less likely to face serious consequences.

One issue is the resource constraints of DPAs. Data Protection Authorities (DPAs) in each EU member state often lack the resources to adequately monitor and investigate the complex data practices of large, international freemium platforms. Furthermore, freemium services often operate across multiple jurisdictions. This makes it difficult for DPAs to determine which authority has oversight and hinders effective enforcement action. In addition to this, investigating large-scale data breaches or complex privacy violations involving freemium models can be a lengthy and time-consuming process. This delays any potential penalties and weakens the deterrent effect.

These enforcement challenges create a scenario where freemium businesses may be more likely to gamble on non-compliance. The potential for hefty fines may seem less threatening when weighed against the vast resources these companies possess and the complexities involved in pursuing enforcement actions. This ultimately weakens the GDPR’s ability to effectively protect user privacy within the freemium landscape.

Issues in drafting

Loopholes and subjectivity

The GDPR’s reliance on the concept of “legitimate interest” as a legal basis for data processing introduces a significant loophole and element of subjectivity. While the GDPR outlines situations where “legitimate interest” might apply, it ultimately leaves companies with a degree of discretion in interpreting this clause. This subjectivity creates a risk of freemium services prioritizing their own interests over user privacy.

For example, the concept of “legitimate interest” can be used to justify the placement of certain cookies without obtaining explicit user consent. This raises concerns, as freemium business models can potentially interpret “legitimate interest” broadly to encompass a wide range of data collection activities. The lack of clear guidelines and the potential for abuse of this clause weaken the GDPR’s ability to ensure user control over their data.

Cookie notices

The GDPR’s reliance on cookie notices to inform users and gain consent for data collection presents a particular challenge. While intended to empower users, cookie notices often achieve the opposite effect in the freemium context.

As highlighted in a study by Advance Metrics, a staggering 76% of website visitors either ignore cookie banners altogether or simply click through them without engaging with the content. This behaviour stems from several factors such as many cookie notices being intrusive and disrupting the user experience, leading to frustration and a desire to dismiss them as quickly as possible. Another point to note is that the complex nature of cookie categories and the sheer volume of information presented overwhelm users, making it difficult to understand and manage their consent preferences. Finally, when faced with the choice between a seamless browsing experience and delving into complex cookie settings, users often prioritize convenience and sacrifice some control over their data privacy. It is for this reason that as of now there does not exist a lucrative market for businesses to sell enhanced privacy to their customers.

For freemium services, cookie notices become a flawed system that fails to achieve the GDPR’s goals of informed consent and user control over data. The pressure to access the “free” service and the complexity of cookie notices create a situation where users are unlikely to engage meaningfully with them. This ultimately undermines the effectiveness of the GDPR in protecting user privacy within the freemium landscape

Conclusion

The GDPR’s noble aim of protecting user data privacy faces a challenge of growing significance and importance in the freemium landscape created by social media. While the regulation outlines a framework for user control and data protection, its current application struggles to effectively address the practices of freemium business models. The widespread non-compliance, subjectivity of the “legitimate interest” clause, and ineffectiveness of cookie notices all create loopholes that freemium giants can potentially exploit.  Furthermore, the challenges of enforcement leave these companies with a lower risk of facing serious consequences for privacy violations.

It is clear that the current application of the GDPR falls short of its intended purpose. Moving forward, a re-evaluation of the regulation and its enforcement mechanisms is necessary. This may involve strengthening enforcement measures, clarifying subjective elements within the regulation, and exploring alternative approaches that incentivize user privacy alongside innovation. Only through such changes can the GDPR truly empower individuals and create a more secure and transparent digital environment for all.

The ongoing evolution of the digital landscape demands a robust and adaptable data protection framework. By addressing the shortcomings of the GDPR’s application within the freemium space, we can move towards a more balanced approach that protects user privacy without stifling innovation. Only then can the GDPR truly fulfil its promise of empowering individuals and fostering a more secure and transparent online environment, especially for users who rely on valuable “free” services offered by freemium businesses.

Iakov Shuvalov is a final year law student at the University of Aberdeen and has interests in Cybersecurity and Data Privacy Law.

Harriet Hunter, law student at the University of Central Lancashire, explores the implications of AI in the development of weaponry and its effect on armed conflict in international humanitarian law

Artificial Intelligence (AI) is arguably the most rapidly emerging form of technology in modern society. Almost every sector and societal process has been or will be influenced by artificially intelligent technologies— and the military is no exception. AI has firmly earned its place as one of the most sought-after technologies available for countries to utilise in armed conflict, with many pushing to test the limits of autonomous weapons. The mainstream media has circulated many news articles on ‘killer robots’, and the potential risks to humanity — however the reality of the impact of AI on the use of military-grade weaponry is not so transparent.

International humanitarian law (IHL) has been watching from the sidelines since the use of antipersonnel autonomous mines back in the 1940s, closely monitoring each country’s advances in technology and responding to the aftereffects of usage.

IHL exists to protect civilians not involved directly in conflict, and to restrict and control aspects of warfare. However, autonomous weapons systems are developing faster than the law  — and many legal critics are concerned that humanity might suffer at the hands of a few. But, in a politically bound marketplace, is there any place for such laws, and if they were to be implemented, what would they look like, and who would be held accountable?

Autonomous weapons and AI – a killer combination?

Autonomous weapons have been a forefront in military technology since the 1900’s – playing a large part in major conflicts such as the Gulf War. Most notably, the first usage of autonomous weapons was in the form of anti-personnel autonomous mines. Anti-personnel autonomous mines are set off by sensors – with no operator involvement in who is killed;  inevitably causing significant loss of civilian life. This led to anti-personnel autonomous mines being banned under the Ottawa treaty 1997. However, autonomous weapon usage had only just begun.

In the 1970’s autonomous submarines were developed and used by the US navy, a technology which was subsequently sold to multiple other technologically advanced countries. Since the deployment of more advanced AI, the level of weapons that countries have been able to develop has led to a new term being coined: ‘LAWS’. Lethal Autonomous Weapons Systems (LAWS)  are weapons which use advanced AI technologies to identify targets and deploy with little to no human involvement.

LAWS are, in academic research, split into three ‘levels of autonomy’ – each characterised by the amount of operator involvement that is required in their deployment. The first level is ‘supervised autonomous weapons’ otherwise known as ‘human on the loop’ — these weapons allow human intervention to terminate engagement. The second level is ‘semi-autonomous weapons’ or ‘human in the loop’, weapons that once engaged will enact pre-set targets. The third level is ‘fully autonomous weapons’ or ‘human out of the loop’, where weapons systems have no operator involvement whatsoever.

LAWS rely on advances in AI to become more accurate. Currently, there are multiple LAWS either in use or in development, including:

• The Uran 9 Tank, developed by Russia, which can identify targets and deploy without any operator involvement.
• The Taranis unmanned combat air vehicle being developed in the UK by BAE Systems, an unmanned jet which uses AI programmes to attack and destroy large areas of land with very minimal programming

The deployment of AI within the military has been far reaching. However, like these autonomous weapons, artificial intelligence is increasingly complex, and its application within military technologies is no different. Certain aspects of AI have been utilised more than others. For example, facial recognition can be used on a large scale to identify targets within a crowd. Alongside that, certain weapons have technologies that can calculate the chances of hitting a target, and of hitting a target the second time by tracking movements — which has been utilised in drone usage especially to track targets when they are moving from building to building.

International humanitarian law — the silent bystander?

IHL is the body of law which applies during an armed conflict. It has a high extra-territorial extent and aims to protect those not involved in the practice of conflict, as well as to restrict warfare and military tactics. IHL has four basic tenets; ensuring the distinction between civilian and military, proportionality (ensuring that any military advances are balanced between civilian life and military gain), ensuring precautions in attack are followed, and the principle of ‘humanity’. IHL closely monitors the progress of the weapons that countries are beginning to use and develop, and are (in theory) considering how the use of these weapons fits within their principles. However, currently the law surrounding LAWS is vague. With the rise of LAWS, IHL is having to adapt and tighten restrictions surrounding certain systems.

One of its main concerns surrounds the rules of distinction. It has been argued that weapons which are semi, or fully autonomous (human in the loop, and out of the loop systems) are unable to distinguish between civilian and military bodies. This would mean that innocent lives could be taken at the mistake of an autonomous system. As mentioned previously, autonomous weapons are not a new concept, and subsequent to the use of antipersonnel autonomous mines in the 1900s,  they were restricted due to the fact that there was no distinction between civilians ‘stepping onto the mines’, and military personnel ‘stepping onto the mines’. IHL used the rule of distinction to propose a ban which was signed by 128 nations in the Ottawa Treaty 1997.

The Marten’s clause, a clause of the Geneva Convention, aims to control the ‘anything not explicitly regulated is unregulated’ concept. IHL is required to control the development, and to a certain extent pre-empt the development of weapons which directly violate certain aspects of law. An example of this would be the banning of ‘laser blinding’ autonomous weapons in 1990 — this was due to the ‘laser blinding’ being seen as a form of torture which directly violates a protected human right; the right to not be tortured.  At the time, ‘laser blinding’ weapons were not in use in armed conflict, however issues surrounding the ethical implications of these weapons on prisoners of war was a concern to IHL.

But is there a fair, legal solution?

Unfortunately, the chances are slim. More economically developed countries can purchase and navigate the political waters of the lethal autonomous weapons systems market — whilst less economically developed countries are unable to purchase these technologies.

An international ban on all LAWSs has been called for, with legal critics stating that IHL is unable to fulfil its aims to the highest standard by allowing the existence, development and usage of LAWS. It is argued that the main issue which intertwines AI, LAWS and IHL, is the question – should machines be trusted to make life or death decisions?

Even with advanced facial recognition technology — critics are calling for a ban, as no technology is without its flaws — therefore how can we assume systems such as facial recognition are fully accurate? The use of fully autonomous (human out of the loop) weapons, where a human cannot at any point override the technology – means that civilians are at risk. It is argued that this completely breaches the principles of IHL.

Some legal scholars have argued that the usage of LAWS should be down to social policy — a ‘pre-emptive governing’ of countries who use LAWS. This proposed system allows and assists IHL in regulation of weapons at the development stage – which, it is argued, is ‘critical’ to avoiding a ‘fallout of LAWS’ and preventing humanitarian crisis. This policy would hold developers to account prior to any warfare. However, it could be argued that this is out of the jurisdiction of IHL which is only applied once conflict has begun — this leads to the larger debate of what the jurisdiction of IHL is, in comparison to what it should be.

Perhaps IHL is prolonging the implementation of potentially life-saving laws due to powerful countries asserting their influence in decision making; these powerful countries have the influence to block changing in international law where the ‘best interests’ of humanity do not align with their own military advances.

Such countries, like the UK, are taking a ‘pro-innovation’ approach to AI in weaponry. This means that they are generally opposed to restrictions which could halt progress in the making. However, it has been rightly noted that these ‘advanced technologies’ under the control of terrorist organisations (who would not be bound to follow IHL) would have disastrous consequences. They argue that a complete ban on LAWS could lead to more violence than without.

Ultimately…

AI is advancing, and with this, autonomous weapons systems are too. Weapons are becoming more advantageous to the military – with technology becoming more accurate and more precise. International humanitarian law, continually influenced by political stances and economic benefit to countries, is slowly attempting to build and structure horizontal legislation. However, the pace at which law and technology are both developing is not comparative and concerns many legal critics. The question remains, is the law attempting to slow an inevitable victory?

Harriet Hunter is a first year LLB (Hons) student at the University of Central Lancashire, who has a keen interest in criminal law, and laws surrounding technology; particularly AI.

Tramy Cheung, MA law student at the University of Bristol, dives into The Social Housing Regulation Act 2023, analysing its potential impacts on the most vulnerable in society

Seventy-two lives were lost in the Grenfell Tower fire in June 2017. This tragedy sparked outrage over housing safety, social housing standards, and the reluctance to address tenants’ complaints.

Following the Grenfell tragedy, the government issued the Social Housing Green Paper which aimed to “empower the tenants” and improve house safety in 2018. Further, a White Paper entitled ‘The Charter for Social Housing Residents’ which contained numerous provisions, including social housing safety standards, monitoring landlord performance, complaints handling procedures, consumer regulations, and quality of living, was published in 2020. Fast-forward to 2023, The Social Housing Regulation Act 2023 received royal assent to officially become a law in the UK and be fully enacted in 2024.

As a relatively new Act, one may wonder: what is it actually? What changes does it make? How are tenants being empowered? How does it affect tenants and landlords? What are the implications?

What is social housing?

Those who are not UK residents might not be familiar with the term “social housing.” It refers to housing provided for people who cannot afford private market rates. Social housing rent is typically about 20% below local market rents or somewhere between social and market rents. From 2016 to 2018, approximately 3.9 million people lived in social housing. Additionally, in 2022-2023, the median net household income for social housing tenants was £290 per week.

The key provisions

a) Safety standards

One of the main intentions of this Act is the avoidance of tragedy. Section 2(4) requires landlords to appoint a designated individual responsible for adhering to health and safety standards, such as gas, electrical, and fire safety. Section 10A also offers more significant protection for social housing tenants regarding severe problems such as dampness and mould in the property, known as ‘Awaab’s Law’. This follows the tragic case of Awaab Ishak who died in December 2020 as a direct result of exposure to mould in the social home his family rented. Landlords will be henceforth mandated to examine and repair tenants’ homes within a reasonable timeframe or relocate the tenants to a safer place.

b) To hold the landlords be accountable

This Act also grants tenants greater powers to hold inadequately performing landlords accountable. Tenants can access an information scheme to obtain data about housing management. For example, they can research whether registered contractors or providers have met regulatory standards, as well as details about management expenditures and financial performance. Additionally, registered providers must disclose details about Tenant Satisfaction Measures, enabling tenants to understand landlords’ performance

c) Handling complaints for home enhancement

To facilitate dealing with complaints more efficiently, the Act authorises the Housing Ombudsman to publish a code of practice for registered providers. This will guide landlords when implementing systems of dealing with any complaints made against them. For example, the code of practice advises landlords to establish self-assessment tools to assess their performances, as well as offering guidance on making effective apologies to tenants and handling complaints.

Further, an advisory panel which includes different stakeholders and social housing tenants is established under this Act to ensure these factors are well-delivered by landlords. Consumer standards are also heightened, so landlords must now consider tenants’ perspectives, guarantee fair outcomes, and support effective oversight of their own services.

More importantly, the ‘serious detriment test’, which once obstructed the regulator from interfering unless tenants were considered at risk of a ‘serious detriment’, has been removed. So regulators can now proactively scrutinise and enforce matters when landlords fail on consumer issues.

There are corresponding penalties to deter those who do not obey the Act, including imposing unlimited fines, enforcement notices, and changing the new housing management.

Impact of this Act

As mentioned earlier, social housing tenants typically belong to a low-income group, making them amongst the most vulnerable in society. Essentially, many just need a place to live. However, landlords have previously been able to take advantage of this vulnerability because their tenants have lacked the power to compel landlords to carry out essential and urgent repairs.

Although this Act has only recently been implemented, its full impact is still unknown. However, one thing is certain: it has helped to rebalance the power of tenants and landlords, making the system more just. Whilst it may not be yet perfect, at least tenants now have legislation to rely on to protect their rights.

According to Government statistics in 2023, about 14% of households (3.5 million) live below the Decent Homes Standard. Social housing tenants reported lower well-being scores compared to owner-occupiers and private renters. It’s noteworthy that around 4% of social housing households with residents having long-term illnesses or disabilities lived in damp conditions. While this percentage might seem small, it’s important to emphasise that people not only have the right to a home but also the right to a “decent home“.

This Act has significantly improved the quality of life, including physical and mental wellbeing of tenants, by providing greater protection, stricter safety regulations and higher living standards. Also, this Act requires the regulators to possess specific qualifications to maintain professionalism, which signifies the tenants could receive better service. In short, social housing tenants could now be more secure, understanding that the improved standards mean that the risk of another tragedy, similar to the Grenfell Tower fire, is reduced.

Moreover, the Social Housing Act 2023 empowers social housing tenants by granting them vital information about their landlords’ performance and ensuring that they can utilise relevant mechanisms, as mentioned above, to hold their landlords accountable. This transparency and empowerment facilitates more proactive actions from tenants and regulators in housing management, guaranteeing that landlords would maintain satisfactory performance and that the living environment is as decent as they would be willing to live in.

This Act would also further promote economic stability because the tenants who suffered from an inhabitant environment do not need to worry about the cost of relocating and repairing since the Act bestowed the responsibilities on the landlords. The social housing landlords are now obliged to repair the affected tenants’ property within a reasonable time or resettle them in a safer place. Therefore, it could protect the tenants’ savings and avoid worsening their financial situations during the living cost crisis.

To conclude, society should welcome and support this Act as it dramatically enhances landlords’ responsibilities and housing standards. Consequently, the social housing tenants could eventually enjoy a more secure and dignified living environment. The housing system as a whole would also be fairer and more just, which benefits everyone and helps prevent tragedy from occurring.

Tramy Cheung is a first-year MA law student at the University of Bristol, hoping to be qualified as a solicitor with strong interests in real estate and immigration law while remaining open to other areas of commercial law. 

LLM student Sean Doig compares the arbitral regimes of the two countries

It is no secret that there has been a long rivalry between England and France throughout history; particularly, one of animosity and frequent hostility. For centuries, the French and British Empires fought for supremacy of the New World, later expanding their conflicting ambitions to India, the Pacific, and Africa. Today, that rivalry takes a different form.

While the two countries are great allies, politically-speaking, the race for arbitral supremacy over the other is prevalent. French and English courts are constantly bickering over who has jurisdiction in arbitral proceedings according to the vaguely-defined law governing the arbitration agreement (lest we forget Kabab-Ji).

Although, their rivalry comes as no surprise. From the decline in litigation proceedings to globalisation and the increasingly international nature of disputes, attracting arbitral proceedings to one’s host state is now an artform. Among many other jurisdictions around the globe, two major competitors in the arbitration game are London and Paris: both systems offering different approaches in areas ranging from the law governing the arbitration to the enforcement of awards.

With the upcoming 2024 Summer Olympics about to be held in Paris, there is never a better time to examine this friendly rivalry. So, get your flags at the ready. Cue the national anthems. And enjoy the spectacle of two nations going head-to-head for gold in the race for arbitration supremacy.

Team briefing

In lane one, representing France, is the International Chamber of Commerce’s International Court of Arbitration (ICC): the forefront of France’s arbitration institutions. Other key institutions on France’s team include the French Association for Arbitration (Association Française d’Arbitrage), the Regional Chamber of Arbitration (Chambre Régionale d’Arbitrage), the International Arbitration Chamber of Paris (Chambre Arbitrale Internationale de Paris), the Paris Centre of Mediation and Arbitration (Centre de Médiation et d’Arbitrage de Paris, CMAP), and the European Court of Arbitration located in Strasbourg.

In 2023, the ICC celebrated its 100^th year of service, recording over 28,000 cases since its establishment. The key industries in France for international arbitration proceedings are construction, energy, industry, and digital technologies. The majority of disputes involve contractual breaches or brutal termination of commercial relationships.

In lane two, representing England, is the London Court of International Arbitration (LCIA): the heart of English arbitration since 1889. Other key arbitration institutions on England’s team include the Centre for Effective Dispute Resolution (CEDR), the London Chamber of Arbitration and Mediation (LCAM), Falcon Chambers Arbitration, and Sports Resolution.

In 2022, the LCIA had 333 referrals with its caseload increasing by 60% in the past 10 years. Indeed, a 2021 survey by Queen Mary University of London found that London remains the most favoured arbitral seat in the world, with non-UK parties accounting for around 88% of its users. According to the LCIA’s 2022 annual casework report, the top three industry sectors dominating the LCIA’s caseload are banking and finance, energy and resources, and transport and commodities (together representing 65% of all cases).

While London would probably be a bookies’ favourite to win at this point, there are a few core aspects to each approach that require further examination.

 The legal framework governing arbitration

French arbitration law is not based on the United Nations Commission on International Trade Law (UNICITRAL) Model Law; in fact, it largely pre-dates the Model Law and differs from it in several aspects. Instead, French law distinguishes between domestic and international arbitration.

The law is mainly codified in Articles 1442 to 1527 of the French Civil Procedure Code (“CPC”) and Articles 2059 to 2061 of the French Civil Code (“CC”). The domestic arbitration regime is more strict than that for international arbitration, which allows the parties and arbitrators more flexibility in adopting arbitration procedures. According to Article 1504 CPC, arbitration is international “when international trade interests are at stake”. An arbitration is therefore deemed international upon the objective criteria relating to the trade in goods, services or financial instruments across borders, regardless of the parties’ nationality, the applicable laws, or the arbitration seat. This distinction matters since the rules applicable to international arbitration are more liberal.

Regarding both domestic and international arbitration, France created a dedicated judge (juge d’appui) to have jurisdiction over arbitration-related issues and act in support of arbitral proceedings. Such a judge may assist the parties in the constitution of the arbitral tribunal if any problem arises, particularly in ad hoc proceedings, as the judge’s role is limited in proceedings governed by institutional rules.

Additionally, the Paris Court of Appeal created a dedicated international chamber exclusively focused on appeals against first-instance decisions in cross-border commercial matters, and some other specific matters including the annulment proceedings against international arbitral awards handed down in Paris, as well as challenges against enforcement orders, in order to ensure coherent case law. Similarly, the French Supreme Court (cour de cassation) systematically assigns such proceedings to its first civil division.

In contrast, the Arbitration Act 1996 (the “Act”) regulates domestic and international arbitrations seated in England, Wales and Northern Ireland. The Act is influenced by the UNCITRAL Model Law but differs from it in some important ways. For example, the Arbitration Act is a single legislative framework governing all arbitrations, not just international commercial arbitrations. Applications in support of arbitrations are made in specialised courts of the Business and Property Court of the High Court of Justice, typically in the Commercial Court or the Technology and Construction Court.

Confidentiality of proceedings

According to article 1464 CPC, relating to domestic arbitrations, an arbitral proceeding is confidential unless otherwise agreed between the parties; such confidentiality obligation extending to the names of the arbitrators, the arbitral institution, the legal counsels, and the seat.

With respect to international arbitration, no French legal rules provide for a general obligation to ensure confidentiality for international arbitration. Consequently, the parties must enter into a confidentiality agreement, provide a confidentiality clause in their arbitration agreement, or choose an institution which expressly sets out that arbitral proceedings are confidential.

Nevertheless, article 1479 CPC provides that members of the arbitral tribunal must keep their deliberations a secret, whether it be a domestic or international arbitration.

In England, there is no express provision for confidentiality in the Arbitration Act. However, English law generally recognizes the confidentiality of arbitral proceedings, subject to limited exceptions. For instance, documents used in arbitration proceedings may be disclosed where ordered by the court, or in cases where such disclosure is necessary for a party to establish or protect their legal rights. In their 2022 review of the Arbitration Act 1996, the Law Commission  proposed that the Act should not codify English law on confidentiality in arbitration, concluding that it is an area best left to be addressed by the courts. Two reasons were given: (a) arbitration is used in a variety of instances and there is a trend towards transparency in some types of arbitrations (i.e. investor-State disputes), and (b) existing case law on confidentiality is still evolving and not yet ready to be codified.

Enforcement of arbitral awards

While France is a signatory of the New York Convention — as well as to the ICSID Convention – France put forward one reservation upon ratification in relation to the principle of reciprocity: “France declares that it will apply the Convention on the basis of reciprocity, to the recognition and enforcement of awards made only in the territory of another contracting State”. It should be noted that French law usually prevails over the New York Convention as permitted by Article VII(1) since French law is actually more favourable than the Convention itself.

An international arbitral award can only be enforced in France if it is rendered effective by an enforcement order known as an “exequatur”. This procedure is non-adversarial and only allows the judge limited control. In fact, the judge is solely requested to verify if the award whose enforcement is sought does exist, and whether it is not manifestly contrary to the French definition of international public policy. Conflict with French international public policy is the only ground for refusal of exequatur, and it is defined by French courts as the values and principles that cannot be disregarded, even in an international context. The cases where French judges refuse to grant an exequatur are very rare. Since conflict with French international public policy is the only ground for refusal, French courts may confer exequatur even if the award has been set aside by the courts in the seat of arbitration since the setting aside of an award is not a ground for refusing it.

England is also a signatory of the New York Convention, but subject to the reservation that the New York Convention only applied to awards made in the territory of another Contracting State. In IPCO (Nigeria) Ltd v Nigerian National Petroleum Corporation (2017) UKSC 16, the Supreme Court held that the Convention constitutes “a complete code” that was intended to establish “a common international approach” to the conditions for recognition and enforcement. Thus, it is not permissible to use English procedural rules to fetter a party’s rights under the New York Convention.

The procedure for enforcing an arbitral award in England is governed by the 1996 Act. Section 66 provides the following two alternative procedures for the enforcement of an award: (i) an arbitral award may, by leave of the court, be enforced in the same manner as a judgement or order of the court, or (ii) an award creditor may begin an action on the award, seeking the same relief from the court as is set out in the tribunal’s award.

To obtain a recognition and enforcement of a New York Convention award, under section 102(1) of the 1996 Act, a party must produce the duly authenticated original award and the original arbitration agreement. The grounds for refusal are set out in section 103 of the 1996 Act, mirroring Article V of the New York Convention. This means that the English courts retain their discretion to enforce an award even where one of the grounds for refusal is shown to exist. However, in practice, it is rare that the English courts would conclude that an award should be enforced if there are grounds for refusing recognition. Indeed, in Dallah Real Estate & Tourism Holding Co v Ministry of Religious Affairs (Pakistan) (2009) EWCA Civ 755, the court recognised that its discretion to enforce an award – even where a ground under section 103 exists – should be narrowly construed.

Furthermore, it is not necessary for the court to recognise and enforce an arbitral award in its entirety. In IPCO (Nigeria) Ltd, the High Court held that “award” in the 1996 Act should be construed broadly to mean the “award or part of it”, meaning the court can enforce part of an award.

Final comments

While both France and England can be said to have fairly rigid legal frameworks to facilitate arbitral proceedings and empower arbitrators to hand down their awards, there is a case to be made that France might have the upper hand; particularly in terms of a higher degree of complicity in enforcing arbitral awards on its soil. Ultimately, it boils down to which system is the best fit for one’s client. There are several other factors involved in selecting a seat of arbitration that have  not been covered here, including costs, selection of arbitrators, types of reliefs, and so on. Indeed, there is also the possibility of future reform of either the French arbitral procedure or reform of the Arbitration Act in England, therefore it is best to conduct thorough due diligence before making any legal commitments.

Sean Doig is an LLM student at Université Toulouse Capitole specialising in International Economic Law. He is currently working on his master’s thesis, and displays a particular interest in international law, technology and dispute resolution.

Bar grad Abbas Hussain analyses the High Court’s ruling on police powers in the Public Order Act 2023

The High Court’s recent decision declaring that the new police powers for protests are unlawful, marks a pivotal moment in the UK’s legal landscape. This case arose from the controversial expansion of police authority to manage protests, ostensibly to curb disruptive demonstrations by groups such as Extinction Rebellion and Just Stop Oil. These amendments included broad powers to impose conditions on protests deemed to cause “serious disruption” and introduced new offenses like “locking-on” and “tunnelling.”

The legislation in question, part of the Public Order Act 2023, aimed to enhance police capabilities in managing protests that significantly disrupt public order. Critics, however, have argued that these measures were overly broad, threatening the fundamental rights to peaceful assembly and expression. The High Court’s intervention came after legal challenges from civil rights groups who contended that the law was both procedurally flawed and substantively excessive​.

Lack of comprehensive consultation

The court found that the Secretary of State did not adequately consult with a wide range of stakeholders. While law enforcement agencies were consulted, the exclusion of human rights organisations and other relevant groups was deemed a critical oversight. The court emphasised that such consultations are essential to ensure that new laws are not only effective but also respectful of civil liberties​​.

This aspect of the judgment underscores the necessity for an inclusive legislative process. Effective laws require input from diverse perspectives to balance enforcement needs with civil rights protections. The ruling sets a precedent that future legislative efforts must engage more comprehensively with affected stakeholders to ensure balanced outcomes. The court’s decision sends a clear message that the government must prioritise transparency and inclusivity when drafting laws that impact fundamental rights.

From a critical standpoint, the court’s emphasis on comprehensive consultation is a crucial reminder that democracy thrives on diverse input and scrutiny. When legislation, especially one that curtails freedoms, is enacted without adequate consultation, it risks alienating the public and eroding trust in the legal system. By mandating a more inclusive approach, the judgment helps safeguard against authoritarian tendencies and ensures that civil liberties are not sacrificed at the altar of public order.

Balancing public order and civil liberties

Secondly, the High Court criticised the new powers for disproportionately targeting peaceful protests. The judgment highlighted that, while maintaining public order is important, it should not come at the expense of fundamental rights. The law’s broad definitions and low thresholds for imposing restrictions were found to potentially deter lawful and peaceful protests​.

This ruling reaffirms the judiciary’s role in safeguarding civil liberties against excessive state control. It indicates that any future laws restricting protests must be carefully crafted to avoid infringing on the right to peaceful assembly. This balance is crucial to maintaining a democratic society where dissent and public demonstration are protected rights​​​​.

Critically, this finding reflects a profound understanding of the delicate equilibrium between security and freedom. It challenges the notion that public order can only be maintained through stringent controls and instead advocates for a nuanced approach that respects individual rights. By striking down overreaching powers, the court not only protects protest rights but also reinforces the idea that effective governance involves accommodating, rather than suppressing, public dissent.

Clarity and precision in legislation

Lastly, the court found that terms like “serious disruption” were too vaguely defined, leading to potential arbitrary enforcement. Clear and precise language in legislation is necessary to ensure consistent application and to protect individuals from unjustified restrictions on their rights​​.

Future legislative measures must include precise definitions and clear guidelines to prevent misuse or overreach of powers. This clarity is essential in maintaining public trust and ensuring that law enforcement actions are proportionate and justified​​.

From a legal analysis perspective, this insistence on clarity and precision in legislative language is a safeguard against potential abuses of power. Vague laws grant excessive discretion to law enforcement, which can lead to inconsistent and biased application. By demanding specific definitions, the court ensures that citizens are aware of the boundaries of lawful conduct and that their rights are protected against arbitrary infringements.

Legal analysis and precedent

This judgment not only nullified the new police powers enacted in the Public Order Act 2023, but also established a legal precedent by demanding comprehensive stakeholder consultations, clear legislative definitions, and careful consideration of human rights. The court’s willingness to invalidate laws that do not meet constitutional and human rights standards sends a strong message to lawmakers. It reaffirms that legislative bodies must meticulously consider the balance between security and liberty and engage in thorough consultations before enacting laws that significantly impact civil rights.

From a legal perspective, this ruling is a robust affirmation of the UK’s commitment to democratic principles and human rights. It highlights the judiciary’s essential role in reviewing and potentially overturning executive and legislative actions that threaten civil liberties, and it reinforces the judiciary’s role as a guardian of civil liberties by checking government overreach and ensuring that the UK’s legal framework continues to protect the fundamental rights of its citizens.

This decision will likely influence future legislative practices, encouraging more rigorous and inclusive processes that adequately weigh the impacts on fundamental rights.

Abbas Hussain, a BPC graduate, is a school governor at Ark and a member of the BTB Academy 2023-2024 cohort with a keen interest in commercial and public law.

Oxford grad Declan Peters explores the legal issues with lunar mineral extraction

Space has long been considered ‘the final frontier’ for humanity. However, recent scientific and economic developments have meant that the reality of increasingly frequent space exploration is drawing ever closer. This gives rise to a number of legal problems — the focus of this article being an increased interest in extracting resources from the Moon.

Space law (in reality, a handful of vaguely worded and varyingly effective agreements) is generally still in its infancy, and lacks sufficient precision to regulate these activities effectively. Current signs of the major international space agencies ‘going it alone’ raise increasingly serious concerns given the number of planned missions within the near future.

In 2006, astronaut Jack Schmitt, the most recent man on the Moon (having visited in 1972), published his book Return to the Moon. In this work, he briefly discusses his experiences there – but then goes on to describe, in detail, the fact that he thinks the Moon holds a potential solution to Earth’s energy problems via isotope helium-3 (as reiterated a number of times). And to obtain it? We would need to mine the Moon.

The idea of mining the Moon for resources did not begin with Schmitt, by any means. As soon as it became clear that the Moon holds a number of potentially precious resources (both in regard to minerals and life-sustaining essentials like water, which mostly exists in the form of ice deposits on the Moon), conversations started around how we could potentially extract them. Add to this the fact that NASA is claiming we will have boots on the Moon again by 2026, and there is clearly something worth talking about here.

The problem, as is often the case, is the law. Who can extract resources on the Moon? Is there a difference between private companies mining the Moon and nations themselves mining there? What are the potential Environmental Social and Governance (ESG) implications of extracting natural resources from another body within our solar system? Will there be limitations on what can be extracted? How are we expected to divide up mining zones between different parties?

Let’s start with some context – the Outer Space Treaty of 1967 (the Treaty). This agreement formed via the United Nations and includes, amongst its 115 signatories, all of the nations with significant space-related programs (for now, at least). The main focus of the Treaty is naturally (given the relevant date) that of intercontinental ballistic missiles amongst the Cold War’s arms race. Less detailed is its discussion of lunar mining. Article 1 broadly states that the exploration of space ‘including the Moon’ shall be carried out ‘for the benefit and in the interest of all countries’, with the idea that the Moon is the ‘province of all mankind’. Article 2 elaborates on that last point further, essentially stating that no nation can try to lay claim to a specific part of the Moon (though notice the absence of an explicit reference to private bodies at this point).

In 1979, the second major change came in the form of the Moon Agreement. This was more explicitly worded, essentially banning the commercial exploitation of space resources (including lunar mining). Perhaps as a result of this more restrictive nature, a number of major space-faring nations are not party to it – including China, Russia, and the US.

Since this point, the general trend has been towards a position of acceptance that private space exploitation is on the horizon. To name just a few examples, the US passed their SPACE act in 2015, which essentially claims to allow US citizens to claim resources from celestial bodies (including the Moon). This was relatively ground-breaking at the time, and perhaps as a result, a number of other countries have now headed in the same direction, with Japan and the UAE issuing similar legislation in the last few years. Of course, the major point to remember here is that these are purely domestic laws, and not enforceable beyond their jurisdiction. NASA has similarly tried to draft its own rules by announcing the creation of ‘exclusion zones’ on the Moon (essentially, areas that other spacecraft should not enter – this is, for all intents and purposes, an act of staking out portions of the Moon, and so blatantly violates the Outer Space Treaty, as Russia and China have been quick to point out, though again this is likely to have limited effect in terms of enforceability).

More significant recent developments were introduced in the Artemis Accords of 2020. Through this agreement, with NASA leading talks, we encountered an attempt to stake out ‘safety zones’ on the Moon in a collaborative manner (note that private mining is not banned here, unlike in earlier agreements discussed above). However, Russia, China, and India are notably yet to sign (and have all criticised the US-centric nature of the proposed agreement to some extent). Furthermore, many legal scholars believe that a truly significant international law agreement relating to the Moon in the 21^st century will need to go through the United Nations (which has now formed the ‘Working Group on Legal Aspects of Space Resource Activities’, a promising step forwards). Other major institutions promoting international law are similarly working to find some form of solution on the issue of lunar territory (and thus lunar mining).

So where does all this leave us? While some efforts to collaborate are clearly emerging, there is evidently also a growing sense that the exploitation of resources on the Moon could lead to some kind of Wild West scenario if we do not act quickly. Vaguely worded and questionably enforceable legal frameworks are a problem in any area of law. But in lunar law, where the limits of that framework are likely to be tested both very soon and in an alien context which legal experts have simply never encountered before, the need for clearer regulation and international co-operation is becoming more and more apparent. We are, quite simply, running out of time. NASA currently expects Artemis II to land astronauts on the Moon by September 2026. Further, the space agency has now awarded contracts to four private companies who have agreed to begin extraction processes within the Artemis program’s timeframe, alongside similar developments in both Russia and China. With this in mind, the deficiencies present within the framework of space law (especially in the context of lunar mining) are exposed for all to see.

Declan Peters graduated with a first from the University of Oxford in 2023 and is now a PGDL student at BPP on an A&O Shearman training contract. Outside of law, he is passionate about social mobility.

Université Toulouse Capitole LLM student Sean Doig shines a spotlight on climate refugees

Rewind back to 1985. New wave music is flooding the charts. Marty McFly is travelling back in time to the night of that terrible thunderstorm. A rising sea of people gathered under the July sun to witness the historical “Live Aid” concert to raise funds for famine-stricken Ethiopia, Sudan, and other African nations. But in amongst the tsunami of highlights from that year is a publication by Essam El-Hinnawi, an expert from the United Nations Environment Programme, that would start the avalanche of discussion around a critical topic for years to come.

It was this publication that first coined the term ‘environmental refugee’ to describe the “increasing large-scale migration and cross-border mass movements of people” that were partly due to weather-related disasters. Since then, weather-related crises have triggered more than “twice as much displacement as conflict and violence in the last decade”, according to the UN Refugee Agency (UNCHR). Indeed, reports from the Environmental Justice Foundation stress that weather-related extremes have caused 21.5 million displacements each year between 2008 and 2016 – that is 41 people every single minute. Those countries that are vulnerable and least developed contribute merely 1% of global emissions, yet suffer 99% of the deaths related to climate and weather-related disasters.

The reality is that no country is safe from climate impacts. From rising sea levels endangering Bangladesh, to the uninsurable Hollywood mansions threatened by wildfires; climate change does not discriminate. The fight to avoid further catastrophe undoubtedly requires international cooperation and must unite the international community.

Still, 28 Conference of the Parties (COP) on climate change later — and almost 40 years since El-Hinnawi’s publication — climate refugees simply do not exist under international law. There is no clear definition of what a ‘climate refugee’ is, and despite climate migration being a recurrent topic in international negotiations, thus far, no official status or legal protection has been granted to those affected. The lack of a legal definition for persons forced to move for climate-related reasons leaves those individuals’ need for humanitarian protection exposed.

While most people who have been forcibly displaced for climate-related reasons remain within their national borders (internally displaced), some are often externally displaced to other countries. Those who leave their countries in the context of climate change or disasters do not qualify for protection under international law.

One of the fundamental reasons given for the lack of international protection is the complexity of defining a ‘climate refugee’. El-Hinnawi’s original definition of an ‘environmental refugee’ is often attributed to a ‘climate refugee’, however the confusion as to whether there is a practical difference between ‘environmental’ and ‘climate’ remains unclear. Despite this hurdle, the challenge in securing protection for those affected by displacement due to climate change involves navigating a way to distinguish them from those ‘Convention refugees’ defined by the 1951 Refugee Convention.

Indeed, the granting of ‘refugee’ status to climate migrants was found incorrect by the UNHCR. In 2019, Dina Ionesco, head of the Migration, Environment and Climate Change (MECC) Division at the UN Migration Agency argued that this could weaken the UNHRC 1951 Refugee Convention, and further exclude support to climate-displaced persons unable to give a suitable proof that their forced displacement is due to climate.

The question, therefore, is whether climate refugees should be the subject of a new treaty or convention. The UNHCR argues that those displaced as a result of environmental change could, theoretically, rely on protection granted by their countries where internal displacement occurs. In contrast, traditional refugees cannot rely on this protection as countries are frequently the source of persecution of which the individual is fleeing. Therefore, the individual is “unwilling to avail himself of the protection of that country” as required by Article 1A(2) of the 1951 Refugee Convention. However, the reality is much bleaker for climate migrants, as certain regions are affected by recurrent climate disasters, disrupting both reconstruction efforts and the return of the displaced individuals.

In fact, what if the country loses its statehood entirely due to climate change? The Pacific Island country of Tuvalu is dealing with this question today. The country is facing the threat of disappearing entirely by the end of the century; the sea level being 15cm higher than it was 30 years ago. As Tuvalu steadily vanishes, its people are fleeing, and its government fears it may lose its statehood. In an attempt to ‘future-proof’ its sovereignty and preserve its cultural identity, Tuvalu’s government is creating a virtual country; offering digital passports, and transferring government activities – including elections – to the cloud.

According to international law, a country is required to have a physical territory and a permanent population. But it is not clear what happens if climate change strips a state of those qualities. In 2023, Tuvalu amended its constitution to assert that the country will exist “in perpetuity”, and that its maritime borders will endure even if its landmass disappears. Thus far, the new wording has only been recognised by 12 countries, but the progress is stalled, and it seems unlikely to improve. Tuvalu hopes that if other countries follow its example, international law could evolve.

Despite climate change’s clear and present danger, the people of Tuvalu will struggle to qualify for refugee status and stand to lose out on international protection they will inevitably require. Their pleading for industrialised countries to lower emissions in the past three decades have long been ignored, and the impact is sinking in.

The landmark Teitiota case in 2015 corroborates the urgent need for a broad, universal definition of a climate refugee. Teitiota was seeking refugee status in New Zealand for himself and on behalf of his family due to the threat of submergence of Kiribati Island caused by climate change. Two years after Teitiota applied for asylum based on the forced displacement caused by climate change, the New Zealand Supreme Court rejected his application on the basis that he did not fall under the scope of the Convention’s definition of a refugee. Although the judgement did not favour Teitiota and his family, the ruling opened the way for other claims on the threat to life caused by climate change. Judge Priestly stressed the idea that the legal definition of ‘refugee’ is not limited to that given by the Convention, but has the ability to be expanded and defined as “a person driven from his or her home to seek refuge, especially in a foreign country, from war, religious persecution, political troubles, natural disaster, etc.”

Subsequently, Teitiota’s father filed a complaint with the UNHCR, causing a statement to be issued acknowledging that rising sea-levels are threatening life and refugee law must be broadened to accommodate this. Indeed, the UN Human Rights Committee declared it unlawful to return individuals back to countries where their lives may be threatened by the effects of climate change, providing hope for climate refugees’ protection.

To expressly define a “climate refugee”, a new protocol should be adopted to the Convention under the mandate of the UNHCR providing a broad, universal definition preserving their rights and taking into consideration the temporary and permanent nature of their displacement. There are climate refugees who will not be in a position to return to their country of origin – particularly where small islands will be submerged, such as Kiribati or Tuvalu – therefore, climate refugees should benefit from permanent protections without fear of persecution. Further, those permanent climate refugees should “receive fundamental civilian freedoms and human rights necessities without socio-political persecution”, permitting successful integration into the host country.

The definition should also recognise internally and externally displaced persons, both with equal rights and opportunities in the receiving country as individuals with refugee status under international law. Finally, the definition should recognise that climate refugees should be understood as having a “well-founded fear” of the consequences that climate change may have on their livelihoods. Such a loss of livelihood could provoke a fear of life or death, the same criteria for evidence of persecution in the Convention definition of refugees.

Even in countries where climate change has less impact in a physical sense, the urgency and responsibility to act cannot be ignored. The Scottish government recently proved that the neglect of crucial climate targets can cripple a government to its knees.

With the number of ‘climate refugees’ steadily rising each year, it is imperative that the international community acts in a unified manner to ensure the legal recognition and protection of those vulnerable individuals displaced by climate change. Instead of more shallow climate pledges, it is time to focus on safeguarding the rights of climate migrants and getting ahead of the curve. Ultimately, international law must fool-proof itself from climate-denying governments and U-turning states, upholding the value of the rule of law for the people it serves.

Sean Doig is an LLM student at Université Toulouse Capitole specialising in International Economic Law. He is currently working on his master’s thesis, and displays a particular interest in international law, technology and dispute resolution.

Université Toulouse Capitole LLM student Sean Doig examines technology’s impact on legal education and training

No profession is immune to the intrusion of disruptive technologies. Inevitably, the legal profession is no exception, and the practice of law and the administration of justice has grown incredibly reliant on technology.

The integration of new legal technologies into legal services is driven by the incentive to provide more efficient, cost effective, and accessible services to its clients. Indeed, modern lawyers are implementing paperless offices and “cloud-based practice-management systems, starting up virtual law practices, and fending off challenges from document preparation services like Legal Zoom.”

Such profound change has even shaped new specialisms within the legal profession, including those known as ‘legal technologists’; a group of skilled individuals who can “bridge the gap between law and technology.” While the name suggests connotations of a ‘legally-minded coder’, the reality is that the majority of professional legal technologists lack any training or experience in both the practice of law and in the profession of engineering and technology management.

Legal technologists is a lucrative and growing niche, and it is insufficient for those professionals to lack the experience and knowledge in the practice of law if they are to develop sustainable legal technologies to assist the delivery of services to clients.

Indeed, disruptive technologies are constantly evolving, and with the rapid advancement of Artificial Intelligence (‘AI’) and the Metaverse, there is a need for immediate change as to the training of the next generations of legal minds. While this sort of fearmongering around obsolete skills and doomed professions is relatively commonplace among CEOs of AI companies, the need for upskilling and adaptability of lawyers has been reiterated by skeptical academics and legal professionals for years.

As early as the 1950’s, diction machines and typewriters changed the working practices of lawyers and legal secretaries. In the 1970’s, law firms began using computers and LexisNexis, an online information service, which changed the way legal teams performed research to prepare their cases. One of the more well-known ‘doomsayers’, Richard Susskind, whose book boldy — although perhaps rather prematurely – titled The End of Lawyers was published in 2008 — well before the era of ‘Suits’!

Despite Susskind’s earlier predictions of impending doom of the end of lawyers, the author’s subsequent book, Tommorrow’s Lawyers, surpasses the ordinary opinion that technology will remove jobs; instead, opts that technology will assist the work of professionals and more jobs will involve applying technological solutions to produce a cost-efficient outcome. Although technology is developing rapidly to assist professionals, Susskind identifies that there is a lack of enthusiasm among law firms to evolve their traditional practices. Conversely, the enthusiasm of law firms to incorporate technology is normally where AI or other technologies are able to boost profits and lower operating costs, rather than assisting the lawyer and delivering for the client.

The incentive for law firms to incorporate technology into their working practices is purely economical and fear oriented. Firms that do not incorporate technology will lose clients to those competitors that have efficient technological means at their disposal. There is little credible advice as to how firms can affectively alter their business model to integrate technology. After all, the billable hour is the crux of a law firm, and with AI speeding up historically slow and tedious work, its value is diminishing.

Without dwelling too much on the fundamentals of capitalism and its effectiveness as an economic system, it is important to note that technology companies — such as OpenAI and Meta – are mostly funded and motivated by shareholders. The rapid nature in the development of technology is to produce results and dividends for those shareholders. In order for the product to perform well economically, there is a rush to outdo competitors and to be disruptive in the market. If successful, the value of the company will increase, the value of the shares will increase, and the more equity the company will have to continue to grow.

This means that technology is advancing at a fast rate and is outpacing the technical skills of professionals. The cost of new technologies factors in the markup that tech companies seek to satisfy their shareholders and advance their research & development (R&D). As Susskind notes, the durability of small law firms will be put into question in the 2020’s against the rise of major commercial law firms that are able to afford to invest in competitive, new technologies.

What does this mean for law students? New skills are required to enter the new technological workforce, and those graduates that meet the skillset will be more in demand than the rest of their cohort. As a result, legal education must equally evolve to adequately prepare law students for working in technological law firms. As Susskind highlights: “law is taught as it was in the 1970’s by professors who have little insight into or interest in the changing legal marketplace”, and graduates are ill-prepared for the technological legal work that their employer is expecting from them.

It should be noted that some graduate and post-graduate courses do exist to facilitate the teaching of some of the technological skills to prepare individuals for the new workplace. Indeed, for example, there is a simulation currently in use in a postgraduate professional course called the Diploma in Legal Practice at the Glasgow Graduate School of Law. Nevertheless, the idea here is that the burden should be placed on law schools and that technological skills should be taught at the earliest stage in order to best prepare graduates for the workplace of tomorrow.

Although it is argued that the original purpose of the LLB is to teach black letter law and the skills for legal practice should be left for post-graduate legal training, this neglects those law students who do not wish to pursue the traditional post-graduate legal education; rather opting for an alternative career path in law.

In order for the value of an LLB to be upheld, it must adapt to meet the growing demand of the industry it serves. Its sanctity and popularity rests on its ability to be of use to any student seeking to have the best possible skills and, therefore, prospects in the job market. If the LLB is to survive, itself must compete with more attractive courses such as ‘Computer Science’, ‘Data Analysis’, and ‘Engineering’. It is not enough for law professors to continue to falsely assume that “students already get it”, or that if graduates work for a law firm then critical technology choices have been determined, “including case management software, research databases, website design, and policies on client communication.”

Furthermore, firms are “increasingly unwilling to provide training to incoming associates” and seek those graduates who already possess background knowledge. Undoubtedly, technology skills will elevate students’ employability, and those with tech skills will be in high demand by traditional law firms and by tech companies that service the legal industry.

While some law schools have been introducing “Legal Technology” or “Law and Technology” modules into their curriculums, it can be argued that they are insufficient to cover the array of specific skills that need to be taught, and are rather focusing merely on the impact of technology in the legal sector. The lack of innovation in law schools is placed on the lack of imagination on the part of law professors and its institutions; fearful of experimenting with the status quo of syllabises. Institutions with the courage to experiment with their curriculum to teach desirable skills in the legal market will attract and better serve a greater number of students for the new world of work.

Perhaps the most elaborate attempt to revolutionise legal education is the theoretical establishment of an MIT School of Law by author Daniel Katz. ‘MIT Law’ would be an institution that delivered a polytechnic legal education; focusing on “the intersection of substantive law, process engineering, computer science and artificial intelligence, design thinking, analytics, and entrepreneurship.” The institution would produce a new kind of lawyer; one that possessed the necessary skills to thrive in legal practice in the 21st century. With science, technology, engineering, and mathematics (“STEM”) jobs dominating the job market, there is an overlap into the legal market; giving rise to a prerequisite or functional necessity for lawyers to have technical expertise to solve traditional legal problems that are interwoven with developments in science and technology.

This hypothetical law school may seem far-fetched, but the underlining principle should be adapted to the modern LLB. Indeed, the curriculum should choose its courses upon the evaluation of the future market for legal services and adapt to the disruptive technologies becoming commonplace in the workplace. A hybrid of traditional law courses such as contract law, with more technical courses such as Machine Learning or E-Discovery should become the new normal to ensure the effective delivery of the best LLB of the future. Each course would be carefully evaluated in light of the current and future legal labour market to ensure that students are given the best possible chances after leaving the institution; whether they go on to post-graduate legal studies or not.

Sean Doig is an LLM student at Université Toulouse Capitole specialising in International Economic Law. He is currently working on his master’s thesis, and displays a particular interest in international law, technology and dispute resolution.

LPC student Frederick Gummer analyses the legal implications of artificial intelligence on the music industry

In April 2023, a track claiming to feature Drake and The Weeknd titled Heart on My Sleeve spread rapidly across TikTok and Spotify. In fact, this wasn’t a collaboration between the two artists but rather, an AI-generated song by a TikTok user who had trained the AI on their music styles. This incident, fuelled by the rapid dissemination platforms like TikTok and Spotify, highlights the emerging challenges in copyright law known as ‘music laundering’.

Music laundering is the practice of presenting AI-generated songs as authentic collaborations between human artists, without proper disclosure. As AI increasingly infiltrates the creative processes, the UK music industry faces new complexities in protecting artist rights without stifling innovation.

Copyright infringement

In the Heart on My Sleeve track saga, Universal Music Group successfully requested the removal of the song from platforms, reportedly using the inclusion of producer Metro Boomin’s tag in the track, giving a definitive basis for its takedown. However, this event underscores the complexities and uncertainties of copyright law when it comes to AI-generated content. Specifically, it brings up pressing questions: without a straightforward, copyright-protected element like a producer’s tag, what recourse will artists in the UK have against such imitation tracks, and how might existing copyright protections adapt to address these challenges?

Copyright infringement, as understood in both US and UK law, hinges on the creation of works that are “substantially similar” to the original or involve copying the “whole or substantial part” of a copyrighted work. In the context of AI, this distinction becomes particularly complex. AI tools, designed to emulate the general sound and style of existing music without directly copying melodies or lyrics, navigate a fine line to avoid infringement claims. To this end, artists must demonstrate copyright infringement in one of two ways: either through an input or an output. The input question deals with whether training AI with copyrighted music without explicit consent infringes on copyright laws or falls under fair dealing exceptions (although the application of fair dealing in the context remains uncertain). The output question explores if AI-created works, potentially derivative, infringe on the original copyright holders’ exclusive rights to create based on their prior works.

The UK’s legislative stance

The UK’s current legislative stance on AI and copyright is characterised by a prohibition on using copyrighted material for AI training, a position that has seen notable shifts and challenges. Initially, the UK government considered allowing an exception for AI training on copyrighted works but later retracted the same in the face of strong opposition, highlighting the tension between innovation and copyright protection. This indecision reflects broader disputes, including failed attempts to establish a fair licensing framework and legal battles exemplified by Getty Images suing Stability AI. Given the swirling currents of regulatory change and prevailing lack of clarity, coupled with the anticipated challenges of compelling tech companies operating generative AI models to adhere to any forthcoming transparency regulations, it’s a certainty that more AI-generated copycat tracks are on the horizon.

As a result, until there is reasonable clarity over the copyright status of the input data used to train generative models, there will be continued reliance on enforcing artists’ copyright based on the outputs of these models. Additionally, any transparency requirements, as in the EU’s new AI Act, will come with big tech’s inevitable dragging of heels and jurisdictional jiggery-pokery to avoid them.

In reality, however, this also comes with its own issues. Should an AI application replicate specific melodies or lyrics (or even a producer tag, as in the Heart on My Sleeve copycat), it might be a breach of copyright laws. But pinpointing such direct mimicry can be challenging, as sophisticated AI tools are often engineered to emulate the overall style and ambience of music, partially to circumvent any potential copyright infringement. Even with the notable implications stemming from the Blurred Lines case in the US, which established the principle in the US of infringement based solely on the emotional or stylistic essence of a song, it may not meet the legal threshold. New works produced through AI tools or rendered with AI-powered voices are unlikely to breach copyright if they do not contain elements that are “substantially similar” or constitute a “substantial part” of any protected original work.

So, for artists watching as an AI-generated version of their voice gains traction online, what is there to do? There hasn’t been enough transparency over the data used to train these generative models in order to easily prove that infringing inputs were used to generate your voice. Additionally, attempts to reverse-engineer outputs in the Getty Images Stability AI case have resulted in images that often feature unexpected, irrelevant, and absurd elements. This process not only produces comedic outcomes but requires significant time and expense. Equally, it is difficult to identify how a voice or style can reach the legal threshold required to attract protection.

A potential legal remedy in UK law

Moving forward, the UK legal system offers potential recourse through the principle of “passing off,” which prevents false endorsements or representations. While traditionally applied to visual representations and false endorsements, this tort could potentially be extended to cover AI-generated vocal imitations which suggest an artist’s (unauthorised) endorsement or participation.

The application of passing off in cases like Irvine v TalkSport, where celebrities’ images were used without permission, sets a precedent. This ruling found that, firstly, the ‘celebrity’ must have significant reputation or goodwill at the time of the incident and, secondly, that the unauthorised image use misleads a substantial part of the target market into believing the celebrity endorsed the product. Such claims are uncommon and hinge on other particular details, as illustrated by Rihanna’s victory over Topshop. In that case, the court sided with Rihanna. This was not on the basis of a broad image right, but rather because her well-documented endorsement history could lead many Topshop customers to mistakenly think she had approved the use of her image on T-shirts, when, in fact, she hadn’t.

Given this context, you could envision a flexible interpretation of these principles applied to an AI-generated track of a well-known artist with a distinctive voice and production style. However, this approach is yet to be robustly applied to cases involving synthetic voices, and its effectiveness remains largely untested in this new context.

A potential legal remedy in US law: California

To consider how this approach may work, it is worth considering the legal position of another hotspot jurisdiction for music litigation: California. The legal landscape in California provides clearer protections for artists through the right of publicity, which recognises the unauthorised commercial use of an artist’s distinctive voice as a violation.

This was established in the landmark Midler v Ford Motor Co. case, where the use of a Bette Midler soundalike in a commercial without her consent was deemed an infringement of her publicity rights. This principle was recently invoked in Rick Astley’s lawsuit against Yung Gravy for the imitation of Astley’s voice, suggesting that California’s right of publicity could offer a pathway for actions against vocal imitations made by AI.

While the Astley case involved human imitation, its implications for AI-generated content are significant, offering a potential legal remedy for artists against unauthorised commercial use of their vocal identity. A successful expansion of the Midler judgement so that it applies to any commercial purpose, rather than solely false endorsements, may provide a window into how Irvine could be interpreted in the UK, should it be tested. In turn, this may provide a more realistic option available for high-profile UK artists looking to protect their intellectual property rights as this area develops.

To conclude, although the music industry has a history of catastrophising with each major paradigm shift, such as during the introduction of music streaming, the concerns about generative AI and its potential for ‘music laundering’ are not without merit. The existing patchwork of copyright protections does not provide adequate safeguards for artists against copycats. However, there is potential for developments that could enable well-known artists to challenge these imitations through passing-off claims.

Frederick Gummer is an LPC student at The University of Law with interests in entertainment law, copyright and artificial intelligence.

First-year law student Shinelle Leo looks at last year’s cultural film phenomenon

No matter where in the world you were in the summer of 2023, it was impossible to escape the ‘Barbenheimer’ phenomenon. Whilst one movie is a pink-themed, post-modern take on a blonde doll navigating the human world, the other is a pensive and striking biopic based on the ‘Father of the Atomic Bomb’. Many may have watched both purely for their love of cinema, however keen legal heads would have been curious to consider the legalities preceding the films. Both pictures have a fascinating legal framework covering intellectual property (IP) protection and historical legislation.

Trademarks, trade secrets and Mattel

According to BrandFinance, the Barbie brand has a market value worth USD$701 million in intellectual property. It is well-established that their owners, Mattel, intend to protect all Barbie creations. Mattel has developed the IP profile for Barbie by registering trademarks and copyright protection globally including 23 registered trademarks in the EU and over 30 registered in the UK, including the name ‘Barbie’, variations of the logo, Barbie’s iconic boyfriend ‘Ken’ and now, trademarks for the phrases ‘Kenough’ and ‘Mojo Dojo Casa House’.

The chronicles of ‘Barbie pink’

Mattel owns a range of trademarks for different features of Barbie. One irrefutable feature of not only the brand itself, but also the movie, is the substantial usage of the colour pink including the introductory song being named ‘Pink’. Although theoretically impossible to trademark an entire colour, Mattel does have (unofficial) protection for a specific shade of pink- Pantone 219C. This has been consistently used when portraying Barbie and has arguably achieved ‘acquired distinctiveness’. This is where, for a trademark to be claimed, it has to have become ‘distinctive’ resulting from its use in the market to the extent that consumers recognise the trademark in relation to a particular good or service. Mattel has attempted to register a trademark for the ‘Barbie Pink’ with the US Patent and Trademark Office in over 100 categories — although this is yet to be officially trademarked.

The acquired distinctiveness of ‘Barbie pink’ was further argued by Mattel when they sued Rap Snacks, alleging that they infringed on the trademark rights of Barbie. This was not just for Rap Snacks using the name ‘Barbie’ in ‘Barbie-Que Chips’, but also for using their famous pink on its packaging. Mattel argued that this would cause consumers to associate the defendant’s products with the Barbie brand. However, the case was ultimately dismissed as Rap Snacks agreed to stop selling the product.

A Barbie girl in a Barbie world?

Mattel is also keen to protect the usage of the name ‘Barbie’ being used by other parties. In 1997, they sued the band Aqua for their song ‘Barbie Girl’ as they published the song without gaining Mattel’s prior consent to use the doll’s name. As the song became increasingly popular, Mattel sued MCA Records, Universal Music International, and other parties involved in distributing the song. The lawsuit claimed trademark infringement and dilution; dilution refers to the use of a trademark that is relatively similar to an existing famous mark causing consumer confusion.

The trial Court held that the song was unlikely to diminish the Barbie trademark. According to the Court, it was unlikely to allude consumers into believing that Mattel was affiliated with the song as the song was a parody, giving it protection under the First Amendment. Ultimately, when Warner Bros released the Barbie movie in 2023, Mattel prioritized not only the licensing of the Barbie marks, but also the usage of the quality of these marks’ by third parties.

Barbie vs Bratz: the trade secrets saga

One unfamed IP concept is that of trade secrets which refers to confidential information being bought and sold. In 2004, Mattel sued for misappropriation of their trade secrets by MGA (the brand that created Bratz) as they claimed one of their former doll designers had developed the idea for the Bratz dolls and allegedly taken this idea to MGA using the insider knowledge they had gained of the Barbie ecosystem. Mattel won the trial in 2008 and was awarded $100 million in damages which was then appealed by MGA, who went on to win the appeal. They claimed that it was Mattel who had allegedly misappropriated MGA’s trade secrets by committing corporate espionage on their marketing plans and planned product concepts. MGA received $85 million in damages, at which point both sides had ended up spending over $100 million in legal fees.

Film rights to Barbie

With regard to the film, there exist film rights which are rights under copyright law that allow a film-maker to create a film based on an existing property or idea. Entertainment mogul, The Warner Brothers Company currently enjoys the film rights to Barbie as they were the ones to pursue the film’s creation. Prior to this, Sony intended to create the Barbie movie for release in June 2018. However, their rights expired in in 2019 as writers Amy Schumer and Kim Caramele were undecided on the direction the movie should take. This is where the Warner Brothers stepped in to push forth the live-action film which generated for them a $1.5 billion profit.

Mattel’s Barbie brand is protected by a raft of IP rights. It is evident that with the heightened attention to the Barbie brand following the release of the Barbie movie, Mattel is not only benefitting from stringent IP protection but given its history, is similarly likely to be cautious in pursing intellectual property litigation for the use of their name, logo and colour.

Oppenheimer’s impact on patents and legislation

Christopher Nolan’s highest-grossing biopic, Oppenheimer, has piqued the interest of many viewers to delve deeper into the details of the Trinity Test and the aftermath of the Japanese bombings. What may be unknown to many is that Dr. Oppenheimer and his team at Los Alamos filed for several patents which would cover aspects of the technologies used to create the atomic bomb including a ‘neutronic reactor’ and a ‘low impedance switch’.

Patent protection for the Manhattan Project

Patents are a prominent form of IP protection that cover new inventions and allow the owner to pursue legal actions against those who use their inventions without their permission. They played a key role during the Manhattan Project; the U.S. Department of Energy filed several patent applications to the Patent Office during the Project. These applications were being directed to a secret division in Virginia because patenting atomic bomb technology presented obvious security concerns. More importantly, the threat of espionage created fear that other nations would deduce that the United States was developing a bomb. They would be stamped secretly and secured in one of the patent office’s vaults, and remain classified until later in the 1950s.

Without the use of this process, the security of the Manhattan Project would have been undermined, as each patent application laid out all the workings of each technology using terms that other engineers could potentially replicate. To further protect its security during the Project creation process, all of the information was disguised with code names to prevent any replications.

When the U.S. Congress became aware of the patent filings during a 1946 Congressional hearing, Captain Robert A. Lavender testified that they were seeking patent protection to avoid any other inventors filing speculative patents which had the potential to impede the U.S. Government from using atomic technology. Today under the U.S. quid-pro-quo law, ‘how to build an atomic bomb’ is publicly available.

Oppenheimer: A ‘loyal citizen’?

A predominant portion of the storyline of the movie focused on Oppenheimer’s security hearing. A total of 24 charges were brought against him. These were twofold: the majority claimed that he was associated with communists during WWII and had subsequently given conflicting testimony to the FBI. The secondary charges held that he consistently opposed the atomic bomb’s development, contesting it even when President Truman ordered them to continue with the Project. Ultimately, he was declared a ‘loyal citizen’, however, a 2-1 majority revoked his Atomic Energy Commission security clearance.

The impact of the bombings in Japan paved the way for new legal frameworks surrounding atomic weapons. This prompted other nations to recognise the need for control over their own atomic weapons after learning of the destructive consequences of those used in Japan. This led to the creation of the Non-Proliferation Treaty which intended to cease the Nuclear Arms Race and segregated countries into ‘Nuclear Weapon States’ and ’Non-Nuclear Weapon States’. This treaty set an international precedent for cooperation between the two categories of states.

The creation of these atomic devices required existing legislation to be amended to accommodate it. The complexities of nuclear information required the Espionage Act of 1917 to be amended to cover atomic energy information and forbidden informational categories. Acts such as the Defence Act 1911 which regulated government secrets no longer sufficed in encompassing the complexities of nuclear information.

Conclusion

Several legal lessons can be taken away from both movies. The dogged persistence of Mattel in protecting its rights to Barbie, emphasises the importance of IP rights in protecting a well-reputed brand. Oppenheimer’s atomic inventions created the need for an unprecedented legal paradigm. It is not only exciting for the public to get two blockbusters on the same day, but can also create a legally significant impact on the entertainment industry — one which can be fascinating to uncover.

Shinelle Leo is a first-year LLB student at The University of Manchester with a keen interest in intellectual property especially with matters concerning the entertainment industry.

SQE student Sophie Binks analyses last week’s high-profile ruling

On 9 April 2024, the Grand Chamber of the European Court of Human Rights (the Court) handed down a landmark judgment which ruled that Switzerland’s climate inaction has breached human rights. This decision from an international court is the first of its kind and is likely to set a precedent for future climate complaints.

Verein KlimaSeniorinnen Schweiz and Others v Switzerland

The case was bought by Swiss association, Verein KlimaSeniorinnen Schweiz, who represent over 2,500 Swiss women aged 64 and over. The women claimed that weak Swiss policies have put them at greater risk of dying from heatwaves. They argued that, despite their obligations under the European Convention on Human Rights (the Convention), Swiss authorities are not doing enough to protect them from the effects of climate change.

Held by a majority of sixteen to one, the Court found that there had been a violation of Article 8 (the right to respect for private and family life). The Court determined that Article 8 extends to encompass the right to effective protection by State authorities against the adverse effects of climate change on health and quality of life. Regarding Switzerland, it was held that there are critical gaps in the implementation process of regulatory framework. Furthermore, Switzerland has previously failed to meet emission reduction targets, and by failing to implement relevant legislation to help meet these goals, Article 8 had been breached. The Court unanimously found that Article 1 and Article 6 had also been breached.

Unfortunately, it was not victorious for all climate-concerned claimants in Strasbourg on Tuesday. The Court declared that two other cases, one bought by a French mayor against France and the other a group of young Portuguese people against 32 European countries, were inadmissible. The reasons for this being that as the mayor no longer lived in France, he did not have victim status, and that the Portuguese applicants had not exhausted all domestic remedies. Despite the cases being thrown out, this did not dishearten the 19 year old Portuguese applicant, Sofia Oliveira, who said that “[the Swiss] win is a win for us, too… And a win for everyone”.

What the ruling means for Switzerland

When the Court finds a breach of the Convention, Article 46 requires the State in breach to select general and/or individual measures to be adopted in its domestic legal in order to put an end to the violation.

However, the Court decided that due to the complexity and nature of the issues involved, the Swiss Confederation, with the assistance of the Committee of Ministers of the Council of Europe (the Council of Europe’s statutory decision-making body), would be in a better position than the Court to evaluate the specific measures needed.

If Switzerland does not update its policies, this could result in further national litigation seeing Switzerland face potential future financial penalties, as noted  by Lucy Maxwell, co-founder of the non-profit Climate Litigation Network.

The wider impact of the ruling

This judgment serves as a warning to the governments of the 46 Member States of the Council of Europe. A precedent that it is possible to sue your government over its inaction around climate policies, and, most importantly, that it is possible to win, has now been set. Ruth Delbaere, a legal specialist at Avaaz, a US-based non-profit that promotes climate activism, calls this a “blueprint for how to successfully sue your own government over climate failures”.

In the UK, the High Court have previously considered whether human rights have been breached in a climate related claim. ClientEarth, an international environmental charity, filed an action in 2021 which examined whether the government’s net-zero strategy was lawful. It was held that the strategy was unlawful, and that the government need to provide greater clarity and transparency on how the net-zero target will be met.

Within its examination, the High Court considered a 2019 ruling by the Supreme Court of the Netherlands which held that the Dutch government was breaching Article 2 and Article 8 of the Convention by failing to pursue a more ambitious greenhouse gas target. Ultimately, the UK High Court dismissed the human rights aspect of ClientEarth’s claim because it felt that the Dutch ruling went further than the case law of the European Court of Human Rights at the time, and thus had no bearing on the application national law.

Following the outcome last week, the European Court of Human Rights has now ruled further on the impact on human rights due to climate inaction than it has done before. All 46 Member States have therefore been exposed to the possibility of having similar cases bought against them. Therefore, it is likely that the floodgates have been opened and we will be seeing a lot more governments being held accountable for their climate inaction.

Sophie Binks is studying for the SQE at the University of Law (Birmingham), and her interests are human rights, family and environmental law.

Law student Indrakshi Chaku offers a comparative analysis of the UK and India’s disclosure regimes

In recent years the growth of the ESG sector has witnessed a profound change in the business landscape. The vision of many businesses has shifted from mere profit maximisation and towards sustainability. Countries have also started recognising the importance of ESG-related disclosures from businesses and as such have implemented guidelines in order to aid the same. However, such disclosures being voluntary requirements, still remain at the mercy of business as usual. Among the growing concerns about meeting the objectives of the Paris Agreement and tackling climate change, it becomes pertinent to look at the reporting of these emissions, especially the Scope 3 emissions which often go uncharted by businesses.

As per the Green House Gas Protocol of 2001, Green House Gas (GHG) emissions produced by corporations can be divided into three categories: Scope 1, Scope 2 and Scope 3.

• Scope 1 emissions: these are direct emissions produced by a company’s owned or controlled assets.
• Scope 2 emissions: these are indirect emissions produced by a company’s use of energy.
• Scope 3 emissions: these are all the indirect emissions found in the corporate value chain. It includes all the emissions produced by the suppliers and the customers of the business.

Accounting for 70% of a business’s emissions, Scope 3 emissions are hard to monitor. Since an organisation has little to no control over its suppliers and customers, calculating and reducing Scope 3 emissions can become an insurmountable task. Organisations therefore avoid reporting these emissions at all. On top of that, several legislative, judicial and corporate governance loopholes make it easier for corporations to avoid reporting these emissions. This article aims to explore such loopholes and provide solutions that businesses can implement to reduce their Scope 3 emissions.

Loopholes in the Scope 3 reporting requirements

1) Legislative loopholes:

In the UK,  disclosure requirements regarding emissions are governed by the Streamlined Energy and Carbon Reporting Policy in the UK. However, the regulations come with the following set of loopholes which can jeopardise the country’s net zero target by 2030.

• The policy is focused on the reporting of Scope 1 and 2 emissions, significantly omitting the relevant disclosures regarding Scope 3. Furthermore, the policy only extends to large, unquoted companies, meaning that quoted companies can escape the policy.
• Section 7 of the guidelines further eliminates the necessity of hiring specialists to calculate emissions within the value chain, thus diminishing the probability of accurate findings.

In the case of India, there is no uniform legislation governing the disclosure of Scope 3 emissions. However, the Securities and Exchange Board of India (SEBI) mandates Environmental, Social and Governance (ESG)-related disclosure for the top 1000 listed companies by market cap in relation to Business Responsibility and Sustainability requirements.

The SEBI issued a consultation paper in Feb 2023 containing guidelines for ESG disclosures. The paper provides for the supply chain disclosure for the top 250 companies by market cap, on a non-mandatory basis for the year 2024-25, and a mandatory basis for 2025-26. However, the regulations only apply to large multinational corporations (MNCs) while 90% of Scope 3 emissions are caused by micro, small and medium enterprises (MSMEs). Further, the disclosures are voluntary in nature and can thus be avoided by MNCs if not in their strategic interests.

2) Judicial loopholes

In the case of non-compliance with  ESG standards, a corporation or someone in its value chain can face lawsuits related to GHG emissions. However, the judicial position in cases of non-compliance with ESG standards remain unclear in both India and the UK. In  R (Finch on behalf of the Weald Action Group & Others) v. Surrey County Council (& others), the UK Supreme Court upheld The High Court’s decision which emphasised that the scope of Scope 3 emissions remains “a question of law” and is not automatically governed by the EIA directive. Since the decision emphasises that inclusion of Scope 3 emissions is not an inherent part of project planning, but rather a matter to be left up to the discretion of law, it minimizes voluntary consideration and disclosure of such emissions by big corporations.

In another case of R (Friends of the Earth Ltd) v SSIT and others, the High Court was divided on whether Scope 3 emissions were to be considered by the UK Export Finance (UKEF) department while investing in offshore projects or whether not reporting these emissions would be equivalent to going against Article 2(1)(c) of the Paris Agreement and thus an improper discharge of its duty.

The Indian Judiciary provided a new approach to these questions. In Sukhdev Vihar Welfare Residents Association v. Union of India, public health and public interest were prioritized over environmental concerns, and ‘reasonable care’ was set as a standard to get carbon credit. The National Green Tribunal Of India gave primacy to developmental projects over the environmental degradation that such projects may create. This precedent is particularly relevant in the context of Scope 3 emission disclosures by government bodies. In developing nations like India, States may find it hard to develop a binding framework regarding such disclosures due to the development being the prime focus. As such, the lack of prioritisation of environmental degradation in the Courts creates a significant loophole in incentivising Scope 3 emissions disclosure.

3) Corporate governance loopholes

Shareholder activism refers to a situation where shareholders can put pressure on a corporation to function in an environmentally friendly manner, through rights endowed on share ownership. Shareholder activism related to Scope 3 emissions disclosure has gained significant momentum in recent years in the UK. However, it has not been able to bring significant changes in the internal strategies of corporations. Total Energies, in its May 2023 resolution asked the majority of its shareholders to reject a resolution proposed by a small group of shareholders advising the company to cut down on its oil and gas emissions to align with the goals of the Paris Agreement.

A very similar pattern can be noticed in India. In April 2023, the shareholders of BP were encouraged by a few institutional investors to pass the resolution on cutting its carbon emissions to net zero by 2030 as per the Paris Agreement. The same was discouraged by the company.

What can businesses do?

1) Focus on small suppliers

Most small businesses act as suppliers for large corporations. Consequently, it becomes pertinent to monitor the activities of such businesses. The Scope 1 and Scope 2 emissions of such businesses are the Scope 3 emissions of large corporations. The challenge arises when they do not conform to the reporting standards. Such businesses lack the necessary incentives, resources, knowledge, and public scrutiny to report their Scope 3 emissions. It’s only through the intervention of large corporations, that the standards can be implemented. The corporations can intervene in the following ways:

• Mandating small suppliers to set their own long-term sustainability goals.
• Appointing specific staff to extend the corporation’s sustainability strategy to the suppliers.
• Incentivizing the suppliers such as by providing preference to those who align with the corporation’s long-term sustainability goals.
• Providing funding to such suppliers to conduct Scope 3 screenings.
• Taking steps to verify, monitor, and regulate the tier 2 and tier 3 suppliers that a corporation is engaged with.

2) Leveraging the potential of AI

Businesses can use AI algorithms to analyse the public data of their key suppliers and estimate whether suppliers are, for example, calculating Scope 3 emissions; setting climate targets; putting a climate transition plan in place; and adopting decarbonisation measures. Issues arise when suppliers are not transparent and such data is not made public, especially small suppliers who are not legally bound to disclose such information. The prediction of Scope 3 emissions in the case of these suppliers is limited to assessing their present sustainability practices. This in itself poses another issue of funding.

While MNCs can afford to invest resources in Scope 3 screening procedures, such suppliers lack resources. AI can contribute to solving these issues. Machine learning models designed to collect and analyse data regarding Scope 3 emissions can be designed in such a way that the data of existing MNCs who have invested resources into identifying their Scope 3 emissions be used to train AI systems to improve their predictive abilities.

3) Taking the merger route

A firm’s economic resources play a part in shaping its ESG policies. In the contemporary era, mergers and acquisitions (M&A) are the fastest routes to raise revenues. And thus, M&A can indirectly help in the faster implementation of ESG guidelines. Contrary to the popular notion that mergers can increase the GHG emissions of a corporation by increasing its critical mass, mergers can reduce the overall emissions of a company and promote the chances of voluntary disclosure.

This is very evident through the acquisition of XTO Energy and its subsidiaries by ExxonMobil leading to a significant improvement in the overall environmental score of the combined entity. Although the GHG emissions associated with the process of hydrocarbon extraction, production, and distribution are considered to be negative, the combined merger of the oil and gas-producing entities still led to a significant reduction in Scope 3 emissions. Another similar example can be noted in the case of the acquisition of Wyeth by its friendly rival Pfizer. Along with the improvement in its financial performance, the acquisition led to a significant rise in its ESG scores of Pfizer.

Conclusion

Scope 3 emission disclosure, previously uncharted territory for many businesses, is gaining momentum. From piquing the interest of investors to being at the centre of public concern, it plays a growing part in establishing a company’s reputation. Even though countries like India and the UK have enacted legislative frameworks to regulate GHG emission disclosures by companies, the explicit focus on Scope 3 emission disclosures is still missing. In its absence, compliance with ESG standards is entirely left to company discretion. While some companies choose to comply, others do not.

However, companies can take several routes when it comes to reporting Scope 3 emissions such as the regulation of small suppliers within their value chain, leveraging the potential of AI, and using strategic mergers to navigate the financial aspect of navigating implementation of ESG policies.

Indrakshi Chaku is a first-year law student keen to explore various facets of international commercial law, including insolvency and restructuring, dispute resolution, and ESG. She is also a passionate advocate for mental health and social mobility within the legal industry and runs a page called PsychoLAWgy.

Sheffield Uni law student Jacob Dubiecha offers a critical analysis of the increased minimum income requirement under new UK immigration rules

On 4 December 2023, individuals who are planning to bring their family into the United Kingdom received some potentially devastating news. Home Secretary James Cleverly announced significant changes to immigration rules, including a drastic increase to the minimum income requirement under the family visa, which is most frequently used to bring a partner to the UK, but also occasionally for bringing over other family members such as children. These recently announced changes mean that in order to bring their family to the UK under this visa, individuals will require an annual salary of £38,700. This amounts to an increase of more than 100% from the current minimum income requirement of £18,600.

The government’s stated rationale for more than doubling the minimum income requirement is that net migration is “far too high and needs to come down”. The concern is arguably an understandable one, considering that net migration in the year ending June 2023 reached 672,000, which is significantly higher than pre-pandemic levels.

Nevertheless, it has to be questioned whether a drastic increase to family visa income requirements is perhaps an overly radical response to this concern. Even the current £18,600 minimum income requirement has been subject to much criticism since its introduction. It has been legally challenged, and the issue was taken as far as the Supreme Court in MM (Lebanon), where the requirement was criticised for its potential of breaching individuals Article 8 right to family life. Although it was ultimately found to be lawful, it was recognised that the minimum income requirement can pose significant obstacles to family reunification.

Due to this, alternative sources of income have been considered in cases where “refusal of the application could breach ECHR Article 8 because it could result in unjustifiably harsh consequences for the applicant, their partner or a relevant child”. However, this alternative method of satisfying financial requirements may not be of help to everyone. Namely, ‘alternative sources of income’ tend to be gifts or financial support from other relatives. Whilst this may benefit some more privileged individuals, perhaps with wealthy parents capable of financially supporting them for the purpose of family reunification, it does not help working-class (or under the new rules, perhaps even middle class) individuals whose sole source of income is their salary. Whilst it remains to be seen how this will be addressed once the minimum income requirement more than doubles under the new rules, it is fair to say that many individuals with family ties abroad are placed in a very precarious state.

On the topic of salaries, it is important to consider whether the new family visa minimum income requirement will give working settled residents a fair chance to bring over their family. Typically, it is considered that a median salary measurement is the most accurate reflection of what people actually earn, because the mean salary measurement is highly affected by the extremes. With this in mind, the median salary in the UK is only around £28,000 – that’s almost £11,000 below the new minimum income requirement of £38,700. In other words, half of the UK’s working population will need to earn nearly £11,000 more than they currently earn in order to be permitted to bring a partner (or other family members) over to the UK under the new rules.

The feasibility of family reunification appears even more implausible for certain groups of people. For instance, the overwhelming majority of young people will be unable to satisfy these requirements. In mid-2021, the median salary for the age bracket of 22-29 was £24,600, with the top 10% of this same bracket earning around £43,094. In other words, if you are a young person aged between 22-29 who earns the median salary for your age bracket, and you have found yourself in a relationship with someone from abroad who you would like to join you in the UK, you may just have to ask your employer for a 50% raise during your next performance review. On the other hand, if you are aged between 22-29 and earn the aforementioned top 10% salary figure for your age bracket, then pat yourself on the back, because according to the Home Office, you earn just about enough to bring a partner over to the UK. Outside of age brackets, it is clear that these new requirements will disproportionately affect individuals in certain regions with lower salaries. For instance, the £38,700 minimum income requirement is far more achievable for the average London-based worker than it is for the average worker based in the North East or Yorkshire and the Humber.

If reference to median salaries isn’t enough to demonstrate the significant burden introduced by the new income requirements for family reunification, perhaps an international comparison could be persuasive. Not all countries have the same type of financial requirements for family migration as the UK does. However, among the ones that do, the House of Commons Library “has so far not found any examples of the threshold being set above or close to £38,700”. For instance, Belgium and Norway, neither of which are cheap countries to live in, have minimum income requirements of around £21,000 and £24,000 respectively for similar family immigration visas.

Other than its overall goal to reduce net migration to the UK, the £38,700 figure reflects the Home Office’s desire to ensure that anyone bringing dependents over to the UK is able to support them financially. They go on to explain that the current minimum income requirement, £18,600, has not been increased since 2012. However, other than this, the Home Office provides no clear explanation as to how they reached the exact figure of £38,700 for the new minimum income requirement. If it is indeed reflective of their stated objective of ensuring that dependents can be supported by their sponsor, it could be questioned whether an increase of more than 100% from the current requirement is really necessary. Whilst the cost of living has no doubt increased since 2012, it has certainly not done so to such a high extent.

According to the Bank of England inflation calculator, £38,700 in 2023 would equate to about £28,100 in 2012, with an average inflation rate of 2.9% a year since. This is almost £10,000 higher than what the Home Office deemed to be the appropriate minimum income requirement in that year, when the requirement was introduced. Therefore, if it really is about ensuring the financial stability of incoming dependents, and the £18,600 minimum income requirement was sufficient in 2012, the new requirement certainly appears unnecessarily high.

On January 30th 2024, an official timetable for the implementation of these rules was finally announced, alongside some additional guidance. Whilst the income requirements will go up in stages, beginning with an increase to £29,000 on April 11th 2024, it will eventually end up around the staggering £38,700 figure by early 2025. Additionally, whilst a government spokesperson has previously stated that the new income requirements would apply to family visa extensions, it has more recently been clarified by the Home Office that these requirements will in fact only apply to first-time applicants. Given the criticism and legal challenges that the current minimum income requirement has been subject to, it seems inevitable that the new requirement, more than twice as high, will face extreme backlash. It is clear that the majority of people in the country will be unable to satisfy the requirements. This means that many who have family abroad, and are unable to permanently relocate abroad themselves, will be prevented from family reunification.

Jacob Dubiecha is a final-year law student at the University of Sheffield. He is an aspiring commercial lawyer and a keen follower of developments in immigration law. 

King’s College London grad Lucy Sutton explores the implications

Prior to June 2022, the act of non-fatally strangling or suffocating your partner would likely land you a charge of common assault or actual bodily harm (‘ABH’). However, as part of the government’s Violence Against Women and Girls strategy, the Domestic Abuse Act (2021) introduced two separate offences of non-fatal strangulation and non-fatal suffocation. The offence of non-fatal strangulation requires a person to intentionally strangle another under s75A(1)(a). The offence of non-fatal suffocation falls under s75A(1)(b), which describes any other act that affects another’s ability to breathe, and which constitutes battery. But exactly why were these separate offences necessary in the first place?

No question is asked in a vacuum. Charities in England and Wales state that only around a quarter of domestic offences are even reported. The Criminal Survey of England and Wales recognised last year that of nearly 900,000 recorded police incidents, less than 40,000 offenders were convicted. Clearly, more needs to be done by stakeholders at every level to tackle low reporting and conviction rates, but adequate statutory developments are perhaps the foundational legal aspect to change. Campaigning for greater reporting of these crimes is fruitless if the eventual indictment does not reflect the damage caused.

Essentially, an ABH or mere common assault charge does not sufficiently tackle society’s wider evolving understanding of domestic violence. Every law student can confidently reel off the characteristics of an ABH offence like a nursery rhyme; the assault must cause more than ‘trifling’ and ‘transient’ injury. Incidents of non-fatal strangulation and suffocation certainly fall into this category when one understands the detrimental effects of even momentary strangulation. Unfortunately, the serious harm caused does not always surface right away and is not always visible to the naked eye — a seemingly fleeting grasp on the neck may appear to produce no physical injury at all. However, the medical evidence has shown that these criminal encounters can have life-changing physical impacts on victims. The Offences Against the Persons Act (1861) is a broad and far-reaching legislation, designed to reflect a myriad of assaults. However, it lacks awareness of the particular dangers that non-fatal strangulation and suffocation have on a victim’s health and their future. The new offence under s75A(1)(b) lowers the benchmark of immediate physical injury to battery. Battery, as most of you will know, requires only unlawful physical force. This important distinction ensures that risk of greater injury that is not able to be proven in the moments ensuing an attack are not diluted to common assault. So what exactly are the hidden dangers?

Physical effects: As little pressure as opening a can of Coke

Dr Catherine White OBE has extensively researched the effects of non-fatal strangulation and suffocation and is committed to educating people on the subject. Her project, the Institute for Addressing Strangulation, critically demonstrates why ABH and common assault were insufficient in capturing the danger of strangulation and suffocation.

The Institute makes clear that there is no safe way to strangle, describing the pressure required to produce life-changing psychological and physical injuries as less than what is required to open a can of coke. Essentially, there is no more delicate area to obstruct blood flow and oxygen than the neck. Strangulation can cause clots in blood vessels, which may not show visible injury but can lead to strokes. In fact, the medical evidence available suggests that strangulation is the second most common cause of stroke in young women. Below are listed just a few more delayed sequelae linked to strangulation and suffocation:

• Brain swelling
• Speech and motor disorders
• Incontinence
• Miscarriage

Psychological effects and room for graduation

Most people would agree that physical abuse from a partner would induce serious psychological effects. But the specific acts of strangulation have been linked to PTSD, dissociation, depression and even suicidality. The new legislation better addresses the specific gravity of strangulation and suffocation in such relationships. It would have been more appropriate in bringing perpetrators such as the abuser in R v Jex (2021) to a more just conviction.

The defendant in this case was charged with ABH after violently head-locking his ex-partner, who had suffered extensive domestic abuse throughout their relationship. The offence was seriously aggravated by the element of manual strangulation, but erroneously charged by the crown as a summary only offence and tried in the magistrates court. Upon appeal, the victim’s personal statement was read out, where she described feeling unsafe and let-down, in no small part due to what she reasonably perceived as ‘lenient’ sentences handed down to Mr Jex throughout their abusive relationship. The appeal court heard that the headlock lasted for almost one minute. The original suggestion that Mr Jex’s actions  would amount to a summary offence seems absurd when it is documented that longer than one minute of strangulation can be fatal. If the offence happened today, Mr Jex could have been charged with non-fatal strangulation. The specificity of s75A(1)(a) would have better safeguarded the error in charging by the Crown. This is because under the new offence, signs of visible injury are only minor aspects of the prosecution’s decision.

In criminal sentencing, the term ‘graduation’ is often used to describe the offender who begins lower-level offending and then proceeds to commit more serious offences of the same category. For example, the drug possessor becomes the drug supplier. The popular ‘boiling frog’ analogy often used in relation to domestic abuse here applies. Charities have warned that non-fatal strangulation has lethal consequences, stating that if a perpetrator has strangled their partner in the past, they are ten times more likely to kill them. Graduation in the realm of domestic violence can be fatal.

The propensity for offenders to commit more serious assaults is particularly concerning when one considers that domestic abuse makes up 18% of recorded crimes in England and Wales. Specific legislation that deals with the seriousness of strangulation and suffocation is therefore essential. Whilst issues of complainant withdrawals due to pressure from an ex-partner complainant remain prevalent in the courts, it is critical that criminal legislation better addresses the serious nature of domestic violence offences—if anything, to properly indict these dangerous offences. Lay complainants such as in the case of Jex, who have felt disheartened by the prospect giving evidence partner for what can be seen as a lesser offence, may be better assured by the phrasing of the new offences that their suffering is taken seriously.

What can we expect to change a year and a half on?

The main question on activists’ and criminal law enthusiasts’ minds alike is whether, in the long term, the new offences will materially improve legal responses to domestic violence in England and Wales. Nobody has suggested that the act is a panacea, but how successful is it likely to be in raising awareness and deterring this class of extremely dangerous assault?

One downside perhaps is that the new offence carries the same maximum sentence as ABH — 5 years. Some may argue a longer custodial sentence would be more appropriate to protect victims from the harm I have described. However, recent case-law has ensured that specific aggravating domestic abuse factors will be taken into account in ways which an ABH charge previously would not. The case of R v Cook last year lists classic abusive behaviours such as attempting to stop a complainant from calling the police as a sentencing factor. For now, in the absence of sentencing guidelines, spectators will have to wait and see how case-law fleshes out these new statutory bones.

Overall, observing material changes in the statistics will be a waiting game. But it should be kept in mind that attempts to reform Violence Against Women and Girls is a cross-departmental and holistic endeavour, encompassing different measures such as the Law Commission’s 2023 report on reforming evidence in rape trials. These reforms, whether procedural or legislative, will not be the last developments in tackling domestic abuse, but certainly show a better grasp on the seriousness and long-term impacts of violence against partners.

Lucy Sutton is a first-class English graduate from King’s College London and is an aspiring barrister with a particular interest in criminal law.

Mayank Batavia takes a deep dive into data protection mechanisms in India and Europe

In August 2023, the Digital Personal Data Protection Bill, 2023 was passed by the two houses of the Indian Parliament. As a result, it has now become the Digital Personal Data Protection Act, 2023, making it legally enforceable.

Elsewhere, data privacy laws of varying complexity have been introduced in different countries over time. Among them, the European Union’s General Data Protection Regulation (GDPR), is considered both comprehensive and strict.

Before comparing India’s Digital Personal Data Protection Act, 2023 and the GDPR, let’s take a moment to understand why data privacy is both important and complex.

The complexity of data explosion

Less than a century ago, important data was printed on paper and stored in books and bound documents. You needed physical space, so if you wanted to store five books instead of one, you’d need five times the space.

Digital data storage changed everything.

Dropbox estimates that about 6.5 MN pages of documents can be stored in a 1TB hard disc, a storage device about one-and-half-times the size of your palm. By the same measure, even a standard smartphone can store over 25 movies in HD.

And because such data storage is easily available to everyone, from governments to organizations and institutions to individuals, it becomes very difficult for a legal body to regulate data protection, storage and sharing.

About GDPR

The European Union brought the GDPR into effect in May 2018. You are expected to comply with the GDPR if you store, process, transfer, or access data of residents of the member-states (27 EU countries and 3 EFTA countries).

It is a forerunner to many privacy regulations, including India’s DPDP and the CCPA (California Consumer Protection Act). The GDPR requirements are stringent and the cost of non-compliance is stiff. For such reasons, the GDPR has become a model for other countries.

About India’s DPDP

India’s Digital Personal Data Protection Act (DPDP) came into effect half a decade after the GDPR. This gave the DPDP the advantage of studying the GDPR and other regulations.

Two key terms

It will help to keep in mind what the below two terms mean for these two regulations:

Data Controller: The natural or legal person that decides why and how the personal data should be processed. The DPDP uses the term Data Fiduciary instead of Data Controller.

Data Processor: The natural or legal person that processes personal data on behalf of the Data Controller.

How is the India’s DPDP different from the GDPR

The EEA and India operate under very different social, political, historical, and even commercial parameters. So, it’s only natural that their privacy laws have some differences.

For example, Article 9 of the GDPR has set out clear categories of data that cannot be processed. Processing data with the objective, say, determining the political beliefs or sexual orientation or a person is expressly forbidden. The DPDP doesn’t lay out these terms.

Here are the key differences between the Digital Personal Data Protection Act and the GDPR.

1. The enshrined principles

GDPR: The GDPR takes a defined route to establishing what data privacy is and what its guiding principles are. The seven principles that lie behind the GDPR are lawfulness, fairness, and transparency; purpose limitation; data minimization; accuracy; storage limitation; integrity and confidentiality; and accountability.

DPDP: The Bill does not explicitly list out the principles like the GDPR. However, the report by the Justice B N Srikrishna Committee, appointed to examine the requirements, validity, scope, and other aspects of data protection, mentions two guiding factors that shaped the current law.

The first emerges from the Directive Principles of State Policy, which says that the state must act as a facilitator of human progress. Hence, the DPDP is drafted in a way to encourage the growth of the private enterprise without compromising an individual’s right to privacy.

The second is a self-disciplinary idea for the state: it admits that the state is “prone to excess”. Therefore, it’s important to empower individuals with fundamental rights, which they may use against the state if the state begins to border on the excess. They may also be used if private enterprises attempt to abuse the freedom the state grants these enterprises.

The data protection framework has been built so that the right to privacy, now a fundamental right in India, gets legal endorsement. This framework offers protection to the individual against both state and non-state actors.

2. How the data is processed

GDPR: If a piece of data is a part of a filing system and is personal in nature, the GDPR will apply to it. Whether it has been processed mechanically, manually, or electronically is immaterial for the GDPR.

DPDP: Against that, the DPDP is very specific. It clearly states that the processing of the data needs to be “…wholly or partly automated operation…”.

There could be several reasons why the DPDP limits the definition of processing in this way. One explanation is that if the scope had included all sorts of processing, the law would have been too complex and mammoth to enforce, thereby defeating its purpose.

The Indian government is pushing for digitalization and alongside that, Indian consumers are also showing a clear change in the way they share their personal information. So, in the next five years or so, a large chunk of data is set to be digitized anyway.

3. Data Protection Boards and enforcement

As technology lets us collect an increasingly wider variety of data, what is personal data isn’t always easy to define. That adds another level of complexity in enforcement of data privacy regulations.

For instance, role email addresses (the ones like sales@, admin@, or billing@) are rarely used to sign up for newsletters, because they are team addresses. And they are often publicly displayed on websites. And yet, marketers indiscriminately spamming role addresses need to be kept in check.

The GDPR and the DPDP have built elaborate mechanisms to ensure that they protect the privacy of people without making things unduly difficult for businesses.

GDPR: The GDPR brought into existence the European Data Protection Board (EDPB). The EU member states have designated independent, supervisory public authorities. Each of these supervisory authorities is the point of contact for the data controller or processor within each member-state. However, it’s the EDPB that will ensure that the enforcement is consistent across the EU and beyond.

There are national DPAs (Data Protection Authorities) which work with national courts in order to enforce the GDPR. If there are more than one member states involved, the EDPB will step in. That makes the EDPB a single-window enforcement.

DPDP: The DPDP Act has proposed a board called the Data Protection Board of India (DPBI). (As of 27 November 2023, the DPBI has yet not been formed.) The DPBI will have a chairperson, board-members, and employees.

Among other things, the DPBI differs from the EDPB (of the EU) in that the former doesn’t hold powers to formulate any rules, while the latter does.

The DPBI receives complaints, reviews them to understand if the complaint is worthy of inquiry, and passes interim and final orders. It will work with other law enforcement agencies if required. That means it can cast a wide net, if required. Besides, appeals from the DPBI are passed on to the Telecom Disputes Settlement Authority of India (TDSAI), and appeals from the TDSAI may be taken by the Supreme Court.

4. Consent and responsibility

GDPR: The GDPR has a long list of lawful bases for processing data. That means the consent for data processing is granular and detailed. The GDPR requires that you display notice at the time of collecting the personal data.

The onus of compliance is on the data controllers as well as the data processors, depending upon the nature of compliance or breach.

DPDP: It appears that the contents of the DPDP notice are relatively limited – nature of data, purpose of processing that data, guidelines for grievance redressal and a few other things. Against that, the GDPR notice is much more detailed.

Unlike the GDPR, the DPDP holds the data fiduciary responsible even for the data processors they engage. That means that in case of a breach of compliance, the DPDP would hold the data fiduciary responsible.

There are two likely reasons why the DPDP made this stipulation, instead of allowing a joint-and-several form of liability. One, it was the data fiduciary that defined the purpose of collecting and processing data, and will likely remain the sole beneficiary of the processed data (The data processor typically offers a service to process the data, but is unlikely to gain anything beyond the processing fees). Hence, the onus must lie with the data fiduciary.

Two, because of this stipulation, the data fiduciary will make sure that all the security measures it has in place are proportionately reflected in the measures that processor takes. That will make sure that the data fiduciary remains alert as regards the standards of every entity in its supply chain.

5. Children’s data

While both the EU and India actively seek to protect their children, there are some divergences in how this is approached.

Culturally, people in India look at family – and not the individual – as a unit of the society. As a result, some western conventions of privacy don’t apply. For instance, many children aren’t assigned a separate room for themselves. Even when a child has a separate room for themselves, they seldom keep it locked, and members of the family freely move around in and out of rooms of one another.

The average Indian parent engages their children in a way that’s different from the way an average European or American parent will. The Indian parent is more hands-on and involved: they believe sharing important information within the family is key to bonding, well-being, and even overall safety.

With all this context, it’s not unusual to routinely share account passwords within the family. That blurs the lines of privacy in the familial context. In the European Union, this would be extremely rare.

Finally, the legislature and the judiciary in India take cognizance of the unique relationship between parents and their offspring (e.g. Maintenance and Welfare of Parents and Senior Citizens Act, 2007). All this, in a small way, might partially account for some of the differences between the GDPR and the DPDP.

GDPR: The Article 57 specifically requires the supervisory authorities of member nations to pay attention to “activities addressed specifically to children” while promoting public awareness and understanding.

The GDPR sets an age limit of 16 years for the definition of child. That means a person below 16 years of age would qualify as a child, so parental consent will come into picture for processing their data.

There is, however, an interesting exception mentioned in Recital 38. It clearly states that when providing “preventive or counseling services directly to a child”, the consent from the guardian or parent is not necessary.

DPDP: A person who has not attained the age of 18 years is defined as a child under the DPDP. Before processing the data of children, a verifiable consent from parents (or legal guardians) is required.

One thing that’s not entirely clear is why, for the purpose of consent, the DPDP has clubbed people with disabilities with children. Among other reasons, it may be due to the fact that both groups receive considerable support from parents.

Another interesting feature of the DPDP is that it clearly prohibits a Data Fiduciary from processing data that can “cause any detrimental effect on the well-being of a child”. The Data Fiduciary is also clearly prohibited from tracking or monitoring children or serving targeted advertising directed at children.

To some extent, it places a certain onus on the Data Fiduciary. That’s because today children are some of the most heavy users of social media and digital platforms. As a result, an organisation may already be digitally collecting their behavioural data and serving ads accordingly. In case of a dispute or disagreement, it could be difficult to draw the lines.

Concluding remarks

Both the DPDP and the GDPR reflect a considered, mature, and yet a strict approach in protecting the privacy and the data of their people.

And yet it’s important to remember that the two sets of regulations aim at two different geographies and two different bodies. While compliance with one will make compliance with the other easier, there are some provisions unique to each of the two.

In a world where data is shared, stored, and processed more widely than ever before, organizations can profitably leverage data while remaining compliant with regulations.

Mayank Batavia works in the tech industry within the email organisation space. 

Lauren Slade, maths graduate and aspiring barrister, explores the continuing suitability of video link wills

Since late 2020, following the outbreak of Covid-19 and the ensuing lockdowns, the passing of a government order made it possible for a testator and their witnesses to be virtually present via live video link as a will is signed and attested. While at first glance this appeared to effectively remove a barrier to creating a valid will during a deadly global pandemic, it could actually cause problems for the court in a challenge to the will’s validity. 

Section 9 of the Wills Act 1837 provides for how a will should be signed and attested in order for it to be valid. Subsection (1) states that the will should be in writing and signed by the testator in the presence of at least two witnesses at the same time, and then each witness should attest and sign the will in the presence of the testator.

Traditionally, ‘presence’ meant physical presence. However, the outbreak of Covid-19 in early 2020 resulted in a series of national and local lockdowns, as well as self-isolation measures, lasting into 2022. These restrictions made it difficult, if not impossible, for a testator and their witnesses to be physically present in the same room to sign and attest the will, meaning that, as the law stood, no valid wills could be created.

The ramifications were obvious: if the testator could not create a valid will reflecting their wishes, their estate would be administered under their last valid will or, if there wasn’t one, according to the intestacy rules.

As such, in late 2020 Parliament passed the Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020 SI 2020/952, which inserted section 9(2) of the Wills Act 1837 to allow the term ‘presence’ to “include presence by means of videoconference or other visual transmission” for wills made between 31st January 2020 and 31st January 2022. This provision now covers wills made up to 31st January 2024, following the passing of a second order (SI 2022/18) in January 2022.

The solution was simple: the testator would film themselves signing the will with the witnesses present via video link, then the will would be sent to each of the witnesses for them to sign and attest it with the testator also present by video means.

But the physical presence of relevant persons when a will is signed and attested was traditionally a legal requirement for a reason; it is an important safeguard against several issues that can affect the validity of a will: lack of testamentary capacity, undue influence, fraud or forgery.

Testamentary capacity

The common law requires a testator to have ‘testamentary capacity’ to make a will. The test for testamentary capacity, established in Banks v Goodfellow (1870) LR 5 QB 549 (p 565), is that the testator must understand the nature of the act of making a will and its effects; comprehend the extent of their assets; be able to consider any claims to their estate; and not suffer from any disorder of the mind or insane delusion.

While the law does not require a witness to be satisfied that the testator has testamentary capacity, their in-person observations of the testator during the signing and attestation of the will could be vital evidence should the validity of the will be challenged on this ground.

Although medical evidence could be highly relevant, the Court of Appeal in Simon v Byford & Ors [2014] EWCA Civ 280 confirmed that the criteria in Banks v Goodfellow are not directly medical questions, but matters which must be judged on the basis of the whole of the evidence. In that case, the court approved the approach of the High Court judge deciding whether a testatrix had testamentary capacity in placing the most importance on the evidence of the persons present when her will was executed.

One wonders whether the same approach would be adopted if a similar case concerning a will witnessed by video link came before the court today? Observations of the testator made virtually would likely be less reliable evidence, as it would be more difficult for the witness to form an accurate impression of the testator’s mental state.

Undue influence, fraud or forgery

The use of video technology in the witnessing of wills could lead to an increase in the number of cases where undue influence, fraud or forgery are alleged.

Undue influence is where a testator is coerced by a third party into making dispositions in their will that they do not truly wish to make. The new process for the signing and attestation of wills facilitated by section 9(2) of the 1837 Act makes undue influence potentially more difficult to detect because it will be unclear to a witness watching the testator sign the will via video link whether there is a third party in the room who may be pressuring them.

Furthermore, the fact that the will is sent to the witnesses to attest and sign means that they cannot know for certain that the document they receive is definitely the will they virtually watched the testator sign. This element of the process provides an opportunity for fraud or forgery; in theory, a third party could swap the will with a forged document containing different depositions before it is sent to the witnesses.

Such serious allegations typically require evidence to a high standard, which may not be available if the will was witnessed virtually.

 While the addition of section 9(2) in the Wills Act 1837 was undoubtably necessary, it could cause a rise in the number of challenges to the validity of wills on grounds of lack of testamentary capacity, undue influence, fraud or forgery.

Further, the testimony of witnesses present virtually will be of less value as they did not see the testator sign the will in person — which may make these disputes more difficult to resolve.

 It will be interesting to see the outcome of such cases in the future and whether the safeguard provided by the witnessing of wills has indeed been compromised.

Lauren Slade holds bachelor’s and master’s degrees in maths from the University of Bath and Imperial College London. She is an incoming bar course student at the Inns of Court College of Advocacy and an aspiring barrister.

Jaaved Fareed, Bar Vocational Studies student at City, University of London, analyses the Court of Appeal’s decision in Churchill v Merthyr Tydfil

Article 6 of the European Convention on Human Rights (ECHR), the right to a fair trial, played a crucial part in Lord Dyson’s comment in Halsey v Milton Keynes General NHS Trust. He said that the “compulsion of ADR would be regarded as an unacceptable constraint on the right of access to the court and, therefore, a violation of article 6”. However, Churchill v Merthyr Tydfil County Borough Council marks a crucial turning point in the law. In this groundbreaking judgment, the Court of Appeal took a substantial leap forward in the development of dispute resolution in England and Wales.

Catherine Dixon, director general of the Chartered Institute of Arbitrators, once commented that “Halsey has proved hugely problematic for the wider adoption of mediation. It is generally considered to be bad law and this case (Churchill) offers the Court of Appeal the opportunity to clarify that referring parties to mediation does not breach their human rights.”

The facts

The case concerns damage caused by Japanese knotweed growing on Merthyr Tydfil County Borough Council land encroaching onto Mr Churchill’s property whose gardens adjoined the Council’s land. The claimant sent the Council a letter of claim in 2020 which prompted the Council to query why the claimant declined to use the defendant’s own complaints procedure. Instead, the claimant issued proceedings against the defendant in nuisance to which the defendant applied for a stay (and costs), claiming that the claimant needed to follow its own complaints procedure before issuing proceedings.

Deputy District Judge Rees initially ruled against compelling the parties to engage in non-court based dispute resolution processes, stating that he was bound to follow Dyson LJ’s statement in Halsey that: “to oblige truly unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstruction on their right of access to the court”.

The application was dismissed, but the defendant was given permission to appeal to the Court of Appeal on the ground that the appeal raised an important point of principle and practice.

The judgement

Sir Geoffrey Vos, Master of the Rolls (with whom Lady Carr, Lady Chief Justice, and Lord Justice Birss agreed) gave the leading judgment in the Court of Appeal. He considered that the main issues which the Court had to resolve were as follows:

i. Was the judge right to think that Halsey bound him to dismiss the Council’s application?

ii. If not, can the court lawfully stay proceedings for, or order, the parties to engage in a non-court-based dispute resolution process?

iii. If so, how should the court decide whether to stay the proceedings for, or order, the parties to engage in a non-court-based dispute resolution process?

iv. Should the judge have granted the Council’s application to stay the proceedings to allow Mr Churchill to pursue a complaint under the Council’s internal complaints procedure?

The Court of Appeal, in considering, whether the judge was bound by the decision in Halsey considered whether the relevant paragraphs in Halsey were a necessary part of the reasoning that led to the decision in the case (ratio decidendi) or, in fact, obiter. In Halsey, it was stated that compelling a party who is not willing to undertake ADR would be wrong. According to the Court of Appeal, Dyson LJ’s reasoning in Halsey, regarding whether the Court had the authority to order ADR was not a “necessary” [19] part of the reasoning leading to the decision. As a result, it was unanimously concluded that Dyson LJ’s observations were merely obiter dicta, therefore not part of the ratio decidendi and as such, not binding.

The Court of Appeal then assessed the second part which is whether the court can lawfully stay proceedings in an attempt to allow parties to engage in a non-court based dispute resolution process.

To begin with, the courts can stay proceedings to order parties to engage in ADR. However, the Court in exercising its power must be careful so that it does not impair the very essence of the parties’ rights under Art 6 ECHR. Rather, this power needs to be exercised proportionately to “achieving the legitimate aim of settling the dispute fairly, quickly and at a reasonable cost” [65].

The Master of the Rolls, Sir Geoffrey Vos, however, declined to “lay down fixed principles as to what will be relevant to determining” [66] whether the proceedings should be stayed or whether to order the parties to engage in a non-court based dispute resolution process. It was held to be “undesirable to provide a checklist or a score sheet for judges to operate ”. Rather he said that this should be left to the discretion of the judges who “will be well qualified to decide whether a particular process is or is not likely or appropriate for the purpose of achieving the important objective of bringing about a fair, speedy and cost effective solution to the dispute and the proceedings, in accordance with the overriding objective”.

Ultimately, the Court considered whether the judge should have granted a stay in the proceedings. The Court of Appeal considered the merits of the council’s internal complaints procedure and found that “whilst the Council submits that its internal complaints procedure is crucial, …it may not be the most appropriate process” given the specific nature of this dispute. As a result, a stay was not ordered here. The parties were, however, encouraged “to consider whether they can agree to a temporary stay for mediation or some other form of non-court-based adjudication.”

Implications

In response to The Civil Justice Council’s report on compulsory ADR (2021), Sir Geoffrey Vos said, “ADR should no longer be viewed as “alternative” but as an integral part of the dispute resolution process; that process should focus on “resolution” rather than “dispute”. The recent Court of Appeal’s decision aligns with this point of view.

The direct implication of this case is that the court have the power to lawfully stay proceedings for, or order the parties to engage in a non-court-based dispute resolution process provided that the order made does not impair the very essence of the claimant’s right under Article 6 ECHR. Each case will be fact-sensitive and hence parties who opt not to engage in ADR will need to justify their positions. Additionally, when instructing parties to mediate, the court should consider factors such as cost, financial situations of the parties, urgency, suitability for mediation and legal representation.

The judgment is especially important for businesses and organisations dealing with multiple small-value claims, where legal costs often exceed the claimed sums. The decision enables courts to demand that claimants attempt to resolve disputes through ADR before pursuing court claims, which is seen as a positive development. Even in larger or infrequent disputes, the decision is welcomed as it promotes the potential for resolution through ADR, avoiding the costs and risks associated with a full trial.

The clarity provided by the Churchill decision is expected to empower judges to increasingly promote or order parties to use ADR, aligning with the overarching objective of the Civil Procedure Rules to handle cases justly and at a proportionate cost.

Jaaved Fareed is currently pursuing his Bar Vocational Studies at City, University of London. Holding a commercial pupillage, Fareed demonstrates a keen interest in alternative dispute resolution (ADR), planning and environment law, and commercial litigation.

KCL senior lecturer Anil Balan analyses the Court of Appeal’s recent decision

The Court of Appeal’s recent decision in Ntzegkoutanis v Kimionis [2023] EWCA Civ 1480 offers a beacon of hope for minority shareholders fighting against unfair prejudice within their companies.

This case revolves around the powerful “unfair prejudice” petition under section 994 of the Companies Act 2006 (CA 2006), a tool for minority shareholders to seek redress when their interests are unfairly disregarded. The Court of Appeal judgment clarifies the scope of remedies available and sets a valuable precedent for protecting minority rights.

The ‘unfair prejudice’ petition

The “unfair prejudice” petition under section 994 and derivative claims under 260 of the CA 2006 both aim to protect the interests of minority shareholders in UK companies. Section 994 deals with claims by shareholders against the company for conducting its affairs in a manner that is unfairly prejudicial to them. On the other hand, section 260 deals with derivative claims brought by shareholders on behalf of the company against third parties for past wrongs done to the company.

Section 994 is often the preferred remedy for shareholders, as it prioritises the petitioner’s individual interests, while section 260 prioritises the company’s overall wellbeing. Section 994 also offers a wider range of remedies, including restructuring or winding up, while section 260 is generally restricted to financial redress or preventative measures.

The scenario:

Mr. Ntzegkoutanis, a minority shareholder in Coinomi Limited, alleged that Mr. Kimionis, the majority shareholder and director, had misappropriated company assets and excluded him from management. Mr. Ntzegkoutanis filed an unfair prejudice petition under section 994 of the CA 2006, seeking the following remedies:

• Reconstitution of misappropriated assets: He wanted the court to order the return of assets allegedly taken by Mr. Kimionis.

• Damages for the company: He also sought compensation for the financial losses suffered by Coinomi Ltd.

• Other relief for himself as a shareholder.

The controversy

Kimionis contended that Ntzegkoutanis’s petition was abusive and should be struck out, arguing that seeking relief for the company constituted an improper attempt to use unfair prejudice remedies for personal gain. He claimed that Ntzegkoutanis should have pursued a derivative claim on behalf of the company rather than his own petition.

The Court’s Ruling

The Court of Appeal dismissed Kimionis’s argument and upheld Ntzegkoutanis’s petition. They recognised the following key points:

• Genuine interest in company redress: The Court acknowledged that Ntzegkoutanis had a genuine interest in seeking reconstitution of assets and damages for Coinomi as it directly affected his own value as a shareholder.

• Personal right as a shareholder: The Court emphasised that Ntzegkoutanis was exercising his personal right as a member of the company to seek redress under section 994. He was not acting on behalf of the company itself, but rather protecting his own interests as a minority shareholder unfairly impacted by Kimionis’s actions. His petition therefore did not constitute an abuse of the s.994 process.

• Access to remedies: While derivative claims exist, minority shareholders are not limited to them and can seek relief for the company within their own unfair prejudice petitions when their personal interests are genuinely linked to the company’s well-being.

The significance

Ntzegkoutanis v Kimionis strengthens the protection of minority shareholders in several ways:

• Clearer access to unfair prejudice remedies: The case clarifies that minority shareholders can seek the return of misappropriated assets and damages for the company as part of their unfair prejudice petition, provided they have a genuine interest in these outcomes. It also widens the range of available remedies for minority shareholders facing unfair prejudice, allowing them to seek direct redress for harm to the company that impacts their own share value.

• Strengthens minority rights: This decision empowers minority shareholders to act as guardians of the company’s interests when majority shareholders misbehave, providing a valuable tool for holding them accountable. It also reinforces the principle that majority shareholders must act in the best interests of the company, not just themselves.

• Clarifies legal boundaries: The court’s clear distinction between personal claims and actions benefiting the company sets a framework for future cases, preventing abuse of the unfair prejudice process while ensuring genuine grievances are addressed. This ruling recognises that unfair prejudice petitions offer a valuable alternative to derivative actions, particularly in situations where initiating a formal derivative claim may be challenging or impractical.

Conclusion

Ntzegkoutanis v Kimionis stands as a landmark decision for minority shareholder protection. It reaffirms the power of unfair prejudice petitions and provides a clearer path for minority shareholders to seek remedies when their interests are unfairly prejudiced. This case serves as a reminder that even in complex corporate situations, minority voices deserve to be heard and their rights protected.

Anil Balan is a senior lecturer in professional legal education at the Dickson Poon School of Law, King’s College London.

Anglia Ruskin law student Olga Kyriakoudi explores its implications

The Workers (Predictable Terms and Conditions) Act 2023, which gained approval on September 19, 2023, marks a significant development in labour legislation in the United Kingdom.

This legislation is scheduled for implementation in the near future, and its primary objective is to establish a framework through which employees and agency workers on flexible contracts, including zero-hour and temporary agreements, can request more consistent and predictable work schedules. This article delves into the legal and political implications of this ground-breaking legislation.

Legal implications

In the ever-evolving landscape of UK employment law, the introduction of the Workers (Predictable Terms and Conditions) Act 2023 and the Employment Relations (Flexible Working) Act 2023 has added a layer of complexity and uncertainty. These legislative changes have far-reaching legal implications, particularly regarding the issues of irregular and uncertain working hours.

The Workers (Predictable Terms and Conditions) Act 2023 grants employees who have completed a minimum of 26 weeks with their current employer the right to request more predictable work schedules. To exercise this right, individuals must submit well-defined requests specifying desired changes and proposed commencement dates for the new terms.

While employers are obligated to respond within a one-month timeframe, they retain significant discretion in evaluating and accepting or rejecting these requests. Factors such as projected operational costs, service disruptions, recruitment implications, and more come into play. If approved, employers must promptly update employment terms to align with the new arrangements within two weeks. Non-compliance may lead to Employment Tribunal claims, with potential consequences including reconsideration of the application or capped compensatory damages.

The Act aims to strike a balance between flexible working options for employees and accommodating business operational needs while addressing unfair practices. It seeks to provide workers with greater certainty regarding working hours and income. To aid understanding, further guidance is anticipated from the Advisory, Conciliation, and Arbitration Service (ACAS) before the Act takes effect.

Interestingly, there is overlap between this Act and the right to request flexible work. The recently enacted Employment Relations (Flexible Working) Act 2023 introduces relatively limited changes to the existing regime. The reasons for refusing a flexible working request remain largely unchanged and have been duplicated in the Predictable Terms and Conditions Act, simplifying the identification of reasons for refusal.

Flexible work requests often involve potential discrimination issues, requiring employers to conduct a comprehensive assessment before refusing. For example, requests due to caregiving responsibilities may raise concerns about indirect sex discrimination, while those accommodating disabilities may invoke disability discrimination considerations. In contrast, requests for more predictable working hours are less likely to involve discrimination issues, though exceptions may apply based on the request’s underlying reasons.

Moreover, there is potential overlap where a request for flexible working could fall under the predictable work regime if it aims to achieve a “more predictable work pattern.” This might count towards the maximum limit of two predictable working requests within 12 months, even if unintended. Additionally, the procedural framework for handling these requests may be unclear, with differences such as shorter decision-making timescales under the Predictable Terms and Conditions Act further complicating matters.

To sum up, these legislative changes introduce a complex interplay between flexible working and predictable working hours. While the Acts aim to enhance worker rights and promote stability, their implementation may pose challenges for both employers and employees. Careful consideration, along with potential clarification and guidance, will be essential to navigate this evolving landscape effectively. Adding to the intricate landscape, the imminent Retained EU Law (Revocation and Reform) Act introduces heightened uncertainty in the realm of employment law, potentially impacting pivotal legislation. On May 10, 2023, the government, in response to considerable public outcry, abandoned the proposed sunset clause initially designed to automatically revoke the majority of retained EU law by the end of 2023. Instead, the House of Lords, recognizing the public sentiment, compelled the government to replace the contentious ‘sunset’ clause with a schedule outlining approximately 600 items of retained EU law slated for revocation on December 31, 2023.

Despite this adjustment, the government maintains its commitment to expunge three crucial EU law principles—supremacy, direct effect, and general principles—from UK law by December 31, 2023. Consequently, any retained EU law remaining on the statute book after this date would not be interpretable using these principles. This move introduces a significant challenge, as lawyers will no longer have the capacity to predict the impact of workers’ rights or employers’ obligations reasonably and accurately. The lack of clarity extends to workers who will face uncertainty regarding the scope, meaning, application, or entitlement to their working rights.

Legal certainty, a cornerstone of an efficient legal system, is jeopardized when the settled and predictable meaning of a substantial body of employment law is eradicated, leading to uncertainty and unpredictability. This legal uncertainty has broader implications, potentially undermining growth plans as both employers and employees lack clarity on significant aspects of employment law affecting investment and labour costs.

Political implications

From a political perspective, the Workers (Predictable Terms and Conditions) Act 2023 aligns with the Conservative government’s approach of regulating rather than outright banning zero-hour contracts, which currently engage around 1.03 million individuals in the UK. These contracts involve an agreement where employers are not obligated to guarantee a specific number of working hours, and employees are not obliged to accept offered work while retaining the freedom to work for other employers.

Over the past decade, Conservative-led governments have taken measures to address concerns related to zero-hour contracts, particularly focusing on regulating exclusivity clauses. These clauses, common in employment contracts, restrict the type of business or role an employee can pursue after leaving their current position. While not problematic in contracts with regular hours and pay, exclusivity clauses can disadvantage those on zero-hour contracts by implying a lack of guaranteed paid work and prohibiting them from working elsewhere.

To tackle this, the Small Business, Enterprise and Employment Act 2015 rendered such clauses unenforceable in zero-hour contracts. Recommendations from the Taylor review resulted in additional changes, including the right to an itemized payslip, details of core employment terms, and an extension of the reference period for calculating holiday pay. However, some promised reforms, like the right to request a regular employment contract and maintaining continuity of employment for breaks under four weeks, are yet to be implemented.

It’s essential to note the differing approach of the Labour Party, a political adversary, advocating for a stricter stance on zero-hour contracts, including a proposed ban and the right for workers with regular hours to a standard employment contract. This political divergence reflects broader perspectives on employment rights and contract flexibility in the UK.

Despite post-Brexit efforts by the Conservative Party to amend employment law, the envisioned economic freedom for deregulation and rapid growth remains elusive. The Trade and Cooperation Agreement allows potential conditions for policy drift, with the Conservative Party leaning towards repealing EU retained law. However, criticism and legal commitments may impede this process. Conversely, Labour-led governments are expected to minimize policy drift, as seen in their Employment Rights Green Paper outlining a vision for UK employment legislation up to 2030.

Yet, policy drift poses risks for UK workers, and the presumed benefits of repealing EU employment legislation remain uncertain and may not align with the claims of Eurosceptic proponents. In 2016, additional worker protections were introduced, allowing individuals with contracts featuring exclusivity clauses to bring claims for unfair dismissal or claim a detriment for non-compliance. The Workers (Predictable Terms and Conditions) Act 2023 could be seen as a positive step forward. On the other hand, its effectiveness will only become clear with time and practical application.

Conclusion

In conclusion, the Workers (Predictable Terms and Conditions) Act 2023 represents a significant milestone in UK labour legislation, ushering in a new era of rights and protections for workers on flexible contracts. However, its introduction also introduces a complex legal landscape with potential overlaps and uncertainties, particularly in relation to the right to request flexible working.

While the Act aims to provide employees with greater predictability and stability in their working lives, it also places a significant responsibility on employers to carefully consider and respond to requests for more consistent hours. The Act’s interplay with the recently enacted Employment Relations (Flexible Working) Act 2023 adds another layer of complexity, raising questions about the boundaries between these legislative frameworks.

From a political perspective, the Workers (Predictable Terms and Conditions) Act 2023 aligns with the Conservative government’s strategy of regulating rather than outright banning zero-hour contracts, indicating progress in fortifying workers’ rights. However, the delayed implementation of recommendations from the Taylor review raises concerns about the speed of reform. The contrast between the Conservative approach, favouring regulation, and the Labour party’s call for a stricter stance, including a zero-hour contract ban, highlights the ongoing debate over employment rights and contract flexibility in the UK. This act may signify the initial step by the Conservative government toward realizing their post-Brexit vision of economic deregulation.

In this dynamic landscape, employers, employees, and legal professionals must remain vigilant, adaptable, and attentive to forthcoming guidance from ACAS. Staying informed and prepared for the challenges ahead is imperative for all stakeholders in navigating the evolving scenario.

Olga Kyriakoudi is a third-year law student at Anglia Ruskin University. She is President of the European Affairs Society and volunteers at the University’s Law Clinic.

Oxford Uni PPE grad Joshua Masson explores the UKSC’s recent Deliveroo judgment

The UKSC recently handed down a decision that marks the end of a 7-year struggle for the rights of Deliveroo drivers, and gig workers in general. The court unanimously decided that the drivers in question were not employees of Deliveroo, and therefore would not be afforded many of the privileges that come with that status. It also bars the union from trade union recognition by the CAC, as worker status is the gateway to the recognition of an application.

The case was very much a ‘Hail Mary’, resting on a breach of ECHR article 11, as opposed to a common or statutory law principle. The loss is therefore simultaneously disappointing, understandable, and unsurprising. To clarify, Deliveroo workers are still allowed to form a union, or join the Deliveroo-affiliated GMB, but this decision renders both materially useless. Crucially, the lack of employee status means that Deliveroo are not compelled to engage in collective bargaining, although it is by no means restricted.

There’s a lot to unpack with regards to the arguments made, largely due to the complex intersection between the ECHR and UK statute. The pertinent section of Article 11 states the following:

“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.”

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary.”

The IWGB (Independent Workers’ Union of Great Britain), who represented the aggrieved group of Deliveroo workers, argued that the ECHR definition of a ‘worker’ should correspond to the UK classification of ‘employee’, and that to hold otherwise was a breach of the aforementioned Article. Furthermore, they argued that the rights conferred by the above article included mandatory engagement in collective bargaining.

When incorporating documents such as the ECHR into UK statute, there is no need for direct transposition of the legislation; there is no mandatory legislative harmonisation, and states have large amounts of discretion in implementation, provided that they achieve the broad aim prescribed. The only mandate is that the domestic legislation concerned must be compatible with the ECHR, as required by s.3 Human Rights Act 1998. This presents an insurmountable obstacle for the argument that the intention of the ECHR was to both integrate the EU ‘worker’ definition and collective bargaining rights; the text clearly does no such thing, and the UK government is free to implement the broad aim of the legislation however it sees fit. The UK implementing legislation is by no means ‘incompatible’ with the ECHR. For this reason, the court very quickly dismissed these arguments and moved on to whether Deliveroo riders, in the same way as Uber drivers were in 2021, could be shoehorned into the category of ‘employee’.

A categorisation of ‘employee’ hinges on whether the relationship between the parties is akin to that of an employer-employee, or business-independent contractor. One of the key mistakes made in popular journalism, such as Callum Cant’s recent article in the Guardian, is asserting that the substitution clause in the riders’ agreement with Deliveroo was the only grounds for their self-employed status. This is not the case.

The clause in question gave riders licence to allow others to complete their assigned deliveries in their stead. There were no limitations on the number of jobs they could subcontract out, nor any limitations on who they could subcontract them to, or even on whether they could profit from such. Naturally, this is not an opportunity that would be afforded to employees in most employer-employee relationships.

However, there are several other key features to the employer-employee relationship, none of which are replicated in the agreements between Deliveroo and their riders; the ability to do no work whatsoever, a lack of specific hours, a lack of specific location, a lack of determinate duration and continuity, no mandate of availability, no provided equipment, no periodic payment, an ability to simultaneously work for competitors, no entitlement to rest or holidays, no restriction on rest or holidays, no reimbursement for travel cost, and no insurance. Given this extensive list, it is difficult to find any way in which a Deliveroo rider fits the label ‘employee’, as they are wholly autonomous. In fact, it largely seems that they are the ones in the driving seat, both physically and figuratively speaking. They control when, where and how they work, for how long, and for whom, much like an individual who is self-employed.

It is also not a “loophole in employment law” as characterised by Cant. It is no accident and exists for a reason. We live in a society in which we assume that full workers’ rights come automatically for doing work. However, in truth, rights are perpetually murky because they are often a double-edged sword; they are not unconditional. When riders were asked in a survey what they liked most about riding for Deliveroo, 80% chose the option of “Flexible Work”. This is problematic as rights correlate with obligations, and clearly obligations are precisely what many Deliveroo riders seek to avoid;  it would be counter-intuitive and unfair to suggest that Deliveroo riders should be given the full protection afforded to ‘true’ employees without submitting to the same restrictions of set hours, quotas, non-compete clauses, determinate holiday, etc. The rights of workers, and the security they provide, derive from the similar provision of security for their employers.

Given that the UKSC unanimously returned the opposite decision on the similar 2021 Uber case, a natural follow-up query might be: “what’s the difference between Uber drivers and Deliveroo riders?” There is no ‘bright line rule’ in distinguishing between employees and independent contractors, and it is all a question of degree; the UKSC clearly felt that Deliveroo riders were afforded a higher degree of flexibility than Uber drivers to the extent that the employment tie between the parties was dissipated.

This is entirely cogent, considering the previously discussed substitution clause (which Uber drivers do not have) and the higher proportion of Uber drivers working for Uber full-time (20% of drivers work full-time compared to 4% of riders). Clearly, the tie between most Deliveroo drivers and Deliveroo is not as close as that between Uber drivers and Uber.

It is also worth keeping in mind that a designation of ‘self-employed’ is a cumulative process; there are several features of Uber drivers’ relationship with Uber that do not resemble an employment relationship which Deliveroo riders compounded with more. The non-resemblance between Uber driving and a traditional position of employment is precisely why the case went to the Supreme Court in the first place. The differences are the ‘straws that broke the camel’s back’, with the camel’s back being an employer-employee relationship. There is nothing about the arrangement between Deliveroo and their riders that resembles an employment position beyond one party assigning the other a task and remunerating them for it, whilst for Uber drivers that are at least a few features that resemble ‘true’ employment.

Despite the workers’ grievances, the decision was advantageous for Deliveroo, whose stock price rose by 9%, and who publicly stated: “this is a positive judgment for Deliveroo riders, who value the flexibility that self-employed work offers”. There is something vaguely absurd about Deliveroo claiming that the riders’ loss was a ‘win for riders’, but they do have a valuable point: the riders represented by IWGB represented a portion of riders nationwide; for another set of riders, Deliveroo is a ‘side-gig’ that they do precisely because it is not entrapped by the relentless red tape and rigidity of full-on employment.

The IWGB do legitimately posit a grievance that “flexibility…is no reason to strip workers of basic entitlements like fair pay and collective bargaining rights” and that Deliveroo are merely leveraging such to “legitimise their exploitative business model”. As Cant rightly points out, there are several unjustifiable elements to Deliveroo’s treatment of their riders; they can pay riders as little as £2 an hour, necessitate 70+ hour working weeks, and expose riders to health and safety risks. However, Deliveroo’s treatment of its workforce does not change the labour relation between the two.

The academic reaction has been both disappointed but unsurprised: Alan Bogg, Professor of Labour Law at Bristol University said “the Deliveroo outcome is bitterly disappointing. Where a legal test results in the exclusion of the most precarious workers from Schedule A1, there is a serious problem”. Virginia Mantouvalou, Professor of Human Rights & Labour Law at University College, London, added: “No better way to illustrate structural injustice at work. People in secure, standard employment contracts enjoy many rights which people in precarious work do not have. A sad day for labour rights of precarious workers.”

Both comments are spot on; it is entirely arbitrary for substantive protections to be denied on a technicality. However, shoehorning Deliveroo riders in with ‘true’ employees is not a satisfactory solution. This may come by way of legislation, but a far easier and more practical solution would be for Deliveroo to reorganise its workforce. It could retain a section of workers (presumably the ones who essentially work as riders full-time anyway) as employees. It could then have a separate contract for ‘floating’ riders who can work as they please. This ensures that riders who need both job security and effective union representation have access to such, without compromising on the flexibility that Deliveroo and a section of their riders currently enjoy. Moreover, the power of any resultant union would be curtailed by the continual presence of the contracted workers, so Deliveroo would never need to worry about a potential union strong-arm. There is something deeply unsettling about the most at-risk workers having the thinnest protections, and it is in urgent need of a remedy.

Joshua Masson is a PPE graduate from the University of Oxford. He has completed the GDL and is currently studying for the SQE.      

Jasmine Cundiff, Bristol Uni law student, explores the hurdles to keeping investors accountable

Foreign Direct Investment (FDI) activity began when European nationals acquired assets in foreign countries from the 17^th to early 20^th centuries, which is now viewed as a form of colonialism. The investor’s right to profit from their property could be compromised by expropriation and nationalisation, where the host state assumed control of the property for public benefit.

In light of this, a body of dispute resolution principles emerged, which allowed foreign investors to advocate their business interests in an independent forum. The intention was to adequately compensate investors where they could show the host state had unjustifiably interfered with their assets. International investment law protects the human rights of investors to varying extents, an issue that this article sheds light on.

Introducing the international investment arbitration system

Arbitration is an ad hoc system where both parties consent to have their dispute settled by a specific tribunal of arbitrators that are appointed on a case-by-case basis. The arbitrators give an enforceable and binding decision, which can only be challenged on limited grounds. The majority of investment arbitrations are based on  dispute settlement clauses in Bilateral Investment Treaties (BIT), an International Investment Agreement (IIA), where the parties (the host state and the home state of the investor) consent to dispute settlement through arbitration. BITs delineate the rights and obligations of the investor and the host state. Whilst the non-state investor is not a party to the BIT, the BIT standards apply to all investors who are nationals of the signing state.

International investment arbitration has traditionally set out how the state should treat the foreign investor.

The discussion of an investor’s human rights obligations is important as it furthers interests in corporate social responsibility by recognising that business interests of the investor may infringe upon the human rights of nationals of the host state. For example, in Argentina v Urbaser, Argentina argued that Urbaser violated the locals’ human right to water, a claim that did not succeed. It is important to seriously consider situations where business operations may have detrimentally affected people and analyse the barriers that confront human rights claims against investors.

Human rights claims do not have standing as independent claims before investment tribunals. The alternative is to make a counterclaim. This may play out where an investor brings a claim alleging state interference with their investment, and the state may respond with a counterclaim citing the investment infringed human rights.

Since the dispute settlement clause in the IIA sets the jurisdictional boundaries on what can be arbitrated, the tribunal must have competence to hear human rights claims. Regarding the substantive law, there are no mandatory human rights obligations addressing private investors on the international level, as international law only binds state signatories to international treaties. In considering jurisdictional and substantive issues, this article argues that the drafting of explicit human rights obligations into BITs is essential to give arbitration tribunals the tools to impose human rights obligations upon the investor.

 The first hurdle: having jurisdiction to hear the matter

A tribunal may not have competence to hear a matter where reasonable interpretation of the dispute settlement clause indicates the issue falls outside of its scope. The tribunal’s interpretation of the dispute settlement clause is crucial. International arbitration experts Kabir Duggal and Nicholas Diamond point out that a broad dispute settlement clause could allow ‘any legal dispute’ related to the investment, which may give the tribunal jurisdiction to assess claims beyond the substance of the BIT. Conversely, a narrow clause may leave the tribunal with limited choice but to only admit claims that directly invoke obligations arising out of the relevant investment agreement.

The tribunal in Gavazzi v Romania undertook a narrow interpretation of the dispute settlement clause, where it dismissed the counterclaim due to the lack of legal connection between the counterclaim and the investor’s obligations under the BIT. In a human rights context, it is difficult for the counterclaim to survive a narrow interpretation that requires it is tied to the obligations under the investment treaty, if the investment treaty does not address the investor’s human rights obligations.

Conversely, the tribunal in Urbaser v Argentina followed a broad interpretation and was the first to declare jurisdiction to hear a human rights-based counterclaim. There was a factual connection as both the principal claim and the counterclaim centred around the same investment, which was sufficient to admit the case. The tribunal went further, arguing that the BIT should be interpreted to complement international law, including human rights treaties.

The Urbaser decision paves the way for human rights-based counterclaims against the investor to be heard, however the issue will ultimately develop on a case-by-case basis due to the ad hoc nature of investment arbitration. The wording of the dispute settlement clause determines how much discretion the tribunal has to decide if it can consider a human-rights based counterclaim.

The second hurdle: finding human rights obligations in the law

As Duggal and Diamond point out, the tribunal would only have permission to consider a human rights-based counterclaim if the dispute settlement clause is broad enough. The success of the counterclaim depends on if the applicable law contains specific human rights obligations. This is often decided by a choice of law clause in investment agreements and may be a combination of host-state law and international law.

Having jurisdiction to hear claims grounded in international law, the tribunal in Urbaser departed from the status quo that investors are not directly responsible for human rights in international law. Their reasoning was that international human rights obligations may bind private corporations, as they enjoy rights under the BITs and are therefore subjects of international law. As subjects, they assume obligations under international law.

However, the human rights-based counterclaim failed as the tribunal could not identify a specific obligation in international law that addressed the investor. Whilst Urbaser presents an innovative argument to impose human rights obligations upon investors, it reinforces the fact that tribunals are tied to the content of ratified international treaties and cannot impose an obligation where there is nothing in the law that supports it.

Human rights obligations in BITs

 Obligations addressing investors could be drafted into investment agreements to fill the regulatory gap. If this were the case, it is unlikely that jurisdiction would be a problem, as the tribunal would have competence to assess obligations in the investment agreement. The nature of the obligation in the investment agreement may direct a tribunal to find the human rights obligations in the applicable law that bind investors. Finding a binding obligation may provide the legal basis for states to raise successful counterclaims.

New-generation BITs have captured much attention. They depart from the traditional focus on the investor’s commercial interests, by introducing international human rights standards into the conversation.

The 2018 Ecuadorian model BIT defines an investment as one that fully respects human rights. This BIT cleverly uses jurisdiction as a tool to support human rights protection rather than hinder it. An investment that violates human rights may not qualify as an investment to be protected under the investment treaty, so the tribunal may not have competence to assess the investor’s claim.

Under article 19 of the BIT, the investor is to respect ‘internationally recognised’ human rights and ‘national legislation’. Though it remains somewhat vague as to which specific human rights are binding, the provision clearly counters the status quo that human rights obligations in international law do not address private investors. Therefore, it gives the green light for states and tribunals to identify specific human rights obligations as binding in the applicable law.

Furthermore, the state is entitled to reparations if the investor breaches this obligation. Here, the provision attaches a legal consequence to non-compliance by awarding the host state reparations for the investor’s breach. This highlights that respecting human rights is not just wishful thinking, rather it is mandatory. This is an essential step in enforcing human rights obligations on the investor.

Yet it seems other BIT proposals don’t go as far. Article 12 of the 2015 Indian Model BIT leaves more discretion. Here, investors are to ‘voluntarily incorporate’ international standards of corporate social responsibility. Corporate social responsibility appears to be an aspiration rather than a must have. As the regulations that advance corporate social responsibility seem to lack the tools to ensure compliance, states may have more discretion to dilute corporate responsibility standards when negotiating investment agreements. Therefore, the standards of human rights protection may vary.

Conclusion

As shown in Urbaser, liberal tribunals clearly want to impose corporate social responsibility obligations upon the investor. Explicit human rights obligations in new-generation BITs give tribunals the tools to hold investors accountable. Without a mandatory and uniform standard on the human rights obligations of investors in investment law, any change may be incremental, as corporate social responsibility becomes a pressing issue when negotiating investment treaties.

 Jasmine Cundiff is a final-year law student at the University of Bristol. She is an avid legal writer and a student advisor at the University of Bristol law clinic.