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court of session rejects petition for preliminary reference on withdrawal of art. 50 notification February 6, 2018

Posted by Bradley in : brexit , add a comment

The judgment is here. The petition is rejected because the issue raised is “hypothetical and academic.”

Given that neither Parliament nor the Government has any wish to withdraw the notification, the central issue which the petitioners ask the court to decide – whether the UK could unilaterally withdraw the Article 50(2) notification – is hypothetical and academic. In those circumstances it is not a matter which this court, or the CJEU, require to adjudicate upon.

Of course, if a hard Brexit comes to seem inevitable and there is interest in exploring withdrawal of the notification it will be too late, as the proponents of this litigation suggest:

It is also impossible sensibly to pretend that the question can be asked later.

Generally it may make sense for courts to decline to address hypothetical issues, but this issue isn’t the usual sort of hypothetical issue.

financial markets and fishing February 5, 2018

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Good speech by Andrew Bailey of the Financial Conduct Authority here. And a nice contrast to the general dithering going on in other parts of government (for example the (in)decision to put off the publication of a white paper on immigration until the fall). Bailey discusses the importance of getting the technical details of any transition right and argues that it should be done by means of an agreement between the EU and the UK to avoid glitches. And he points out that it ought to be possible to imagine an agreement:

if it is possible to envisage a partnership agreement on fishing based on convergence of regimes, of course it is possible to have open financial markets and mutual recognition of regulatory regimes… The principles for mutual recognition would look a lot like the ones we already use to authorise the branches of banks from outside the European Economic Area, namely broad equivalence of regulation in terms of outcomes, supervisory co-operation and good information sharing. We would need to add on a robust dispute resolution arrangement, but this could be done. We are used to working very closely with other regulators, it is a big part of our job given London’s international role.
And let me comment on the negative arguments – ie the arguments against not having mutual recognition. First, it is not sensible to imagine material regulatory divergence, especially in wholesale financial markets. It is a false concept. Markets are global and we cannot in practice diverge much in terms of regulatory outcomes, and regulatory arbitrage is not an allowable ground for competition.

climate change and financial regulation February 2, 2018

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I have a short piece on this topic in the current Miami Law Magazine.

of course gary younge is an englishman November 8, 2017

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How can a foreigner claim to know better than an actual englishman who counts as an englishman?

lady hale: gender reassignment and rights to privacy November 1, 2017

Posted by Bradley in : gender , add a comment

Do a person’s legal rights with respect to gender reassignment require that that person’s official records suggesting that gender reassignment has occurred be expunged from official records? Perhaps the UK’s Universal Credit records will achieve this. Meanwhile, taking account of the principle of proportionality, according to the UK Supreme Court, the answer is no, despite some sympathy for the plaintiff.

Here’s the sympathy in Lady Hale’s November 1, 2017 judgment:

“We lead women’s lives: we have no choice”. Thus has the Chief Justice of Canada, the Rt Hon Beverley McLachlin, summed up the basic truth that women and men do indeed lead different lives. How much of this is down to unquestionable biological differences, how much to social conditioning, and how much to other people’s views of what it means to be a woman or a man, is all debateable and the accepted wisdom is perpetually changing. But what does not change is the importance, even the centrality, of gender in any individual’s sense of self. Over the centuries many people, but particularly women, have bitterly resented and fought against the roles which society has assigned to their gender. Genuine equality between the sexes is still a work in progress. But that does not mean that such women or men have not felt entirely confident that they are indeed a woman or a man. Gender dysphoria is something completely different – the overwhelming sense that one has been born into the wrong body, with the wrong anatomy and the wrong physiology. Those of us who, whatever our occasional frustrations with the expectations of society or our own biology, are nevertheless quite secure in the gender identities with which we were born, can scarcely begin to understand how it must be to grow up in the wrong body and then to go through the long and complex process of adapting that body to match the real self. But it does not take much imagination to understand that this is a deeply personal and private matter; that a person who has undergone gender reassignment will need the whole world to recognise and relate to her or to him in the reassigned gender; and will want to keep to an absolute minimum any unwanted disclosure of the history. This is not only because other people can be insensitive and even cruel; the evidence is that transphobic incidents are increasing and that transgender people experience high levels of anxiety about this. It is also because of their deep need to live successfully and peacefully in their reassigned gender, something which non-transgender people can take for granted.

new draft of paper: climate change and brexit as financial stability risks July 21, 2017

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Here: Climate Change and Brexit as Financial Stability Risks (July 2017 version).

brexit “negotiations” round 2 July 20, 2017

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After more than a year it is quite amazing that the UK “government” still seems to have no idea what its specific Brexit negotiation objectives are. Michel Barnier’s speaking points state that negotiations are not possible where there is no clear British position. This is a statement which is so blindingly obvious that it should not need to be made. So there were discussions about the British exit payment. The EU 27 have set out their thinking on this question and the UK, rather than setting out details of their own thinking seem to have just said they realize they will need to pay something (Boris Johnson’s unhelpful comments about how the EU 27 should just go whistle aside) but haven’t really spelled out their ideas about how to get to the right number. And the UK position on other issues doesn’t really seem to be much clearer than this (except they seem to think very many of the EU citizens living in the UK must be criminals). It is as if most of those involved think only of the impact of what they says and do in terms of short-term domestic UK politics rather than in terms of how to achieve a successful negotiation (maybe they recognize that all possible deals for the UK are worse than EU membership?), or how to protect the future of the country.

the uk, and how not to manage a country June 12, 2017

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Last week’s election followed months of the UK not managing Brexit at all well, in contrast to the efficient, bureaucratic way the EU seems to have managed its end of the process (to be fair the EU institutions have much more recent experience of thinking about trade and EU-treaty related issues than anyone in the UK Government seems to have had). The election result might have been seen as an opportunity to take on board some of the mountains of evidence of the downsides of Brexit – especially a hard Brexit – in particular parliamentary committees have generated a number of very worrying reports. This doesn’t seem to be happening yet. More importantly the powers that be don’t seem to be responding with any more competence to the current situation than they did to the initial post-referendum period, or to running an election. This doesn’t bode very well for the future of the country.

nursing homes, powers of attorney, arbitration: kindred nursing centers v clark May 15, 2017

Posted by Bradley in : dispute resolution , add a comment

In the Fall of 2015 I assigned Extendicare Homes v Whisman to my contracts students as an interesting basis for exploring the extent to which contract formation issues might fall outside the pre-emption ruling in AT&T v Concepcion, an issue that many courts had focused on. The Supreme Court has now held (in Kindred Nursing Centers v Clark) that the critical issue is not whether the contract law issue relates to formation or not but whether the relevant rule is a rule that focuses on arbitration (the court points out that in AT&T v Concepcion the court had discussed duress, which applies in the context of contract formation). The Kentucky rule that required specific authority to the grantee of a power of attorney to waive the constitutional right to a jury is a rule that focuses on arbitration and is thus pre-empted by the FAA. Arbitration agreements should be treated “on an equal footing with all other contracts.” Justice Kagan emphasizes in the opinion that there is nothing new here: this is entirely consistent with the Court’s prior decisions.

I think it’s pretty clear that the decision is consistent with this prior case law, and that the court is correct that allowing this sort of getting round the pre-emption issue would invite further acts that could undermine the idea of pre-emption entirely.

But at the same time, duress and lack of authority of an agent to enter into a contract seem to me to involve two very different sorts of formation issue. The language of section 2 of the FAA, “save upon such grounds as exist at law or in equity for the revocation of any contract” seems more applicable to duress (where there seems to be a contract which is treated by the court, in its discretion, as unenforceable) than to the agent’s authority where the court would merely recognize that there was never any valid contract because the party concluding it id not have the power to do so. Conflating the two types of case is not analytically clearly correct. And recognizing this also shows that the floodgates argument – to allow this sort of approach would end up undermining pre-emption altogether – is completely oversold.

uk election: yet another broken promise April 21, 2017

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I have lived outside the UK for long enough that I haven’t been able to vote in elections. This did not bother me too much to begin with because the constituency I lived in before I came to Miami was so obviously going to vote in a way that made one vote irrelevant. But it did bother me when the referendum happened: I would have liked to have a vote recorded on that issue. So I was very pleased to read that there was a new plan to allow expatriates to vote in UK elections. I know the theory was that most of them would be older and would vote conservative, but all the same. Now it seems that the election will take place without allowing a vote to the disenfranchised living abroad, probably because most of them are in other European states and worried (rightly) about their futures. So it is yet another lie/broken promise in this Brexit context.

For this election, where attitudes to the EU are significant they (we) don’t get a vote. But afterwards – after we are all disadvantaged by this decision – what chance any of those people will vote conservative in future? So probably a promise broken not just now, but for the future also.