7 May 2019
Thank you to Dr Mary Guy for organising this year’s annual BACL workshop, which was kindly supported by Intersentia and hosted by Lancaster University. As in previous years, many different comparative research projects were discussed by PhD students in this year’s workshop.

It provided an opportunity for PhD students to discuss their research projects and to meet other PhD students from different universities and institutions. The workshop benefitted from the feedback of Dr Yseult Marique (Essex), Treasurer of BACL, and Dr Annette Nordhausen-Scholes (Manchester), Chair of BACL, and thanks goes to all participants who contributed not just their papers, but knowledge and insight into legal systems from around the globe.

The workshop opened with an introduction from Professor Alisdair Gillespie (Head of Law School, Lancaster) - “Networking”

Professor Gillespie welcomed all participants to the University and explained the importance of events such as these. Networking is key to workshops and to future careers, as funding is now often multi-institutional. Students can use opportunities such as this to make contacts who can assist, not just with their PhD, but who they can also collaborate with in the future. Lancaster University provides a number of opportunities for their own postgraduates as well as postgraduates from other institutions to share knowledge and connect in this way.

Dr Mary Guy (Lecturer in Law, Lancaster) - “BACL provided my first opportunity”

The BACL workshop provided Dr Guy with her first opportunity to present a paper when she was a postgraduate. She presented her research for the first time at the 2013 event in Essex and she also attended the 2015 event in East Anglia. As Lancaster’s BACL representative and organiser of this event, she explained how the contacts made at events such as this will provide valuable future contacts. Dr Guy explained that this year’s event provided an interesting range of papers for consideration.

Emeritus Professor David Sugarman - “Reconstituting Comparative Law for the Twenty-First Century”

Professor Sugarman provided a very insightful account of reconstituting comparative law in the 21st Century. He discussed the past, present, and future of comparative law and highlighted that comparative law is inherently interdisciplinary. Having a passion for the subject of comparative law himself, he explained that he welcomed the shift toward a more holistic approach, which tried to bring comparative law back from the periphery of law teaching and scholarship. Professor Sugarman thought it particularly fitting that the workshop was taking place at Lancaster as Professor F.H. Lawson, a leading comparative lawyer, had inaugurated the teaching of Law at Lancaster. Professor Sugarman has provided a detailed blog of his paper, and therefore only a short summary is provided here. He, first, highlighted the centrality of the comparative method within the human sciences in past times. He, then, pointed to the marginalisation of the comparative method and comparative law, especially after about 1914, focussing largely on Britain, and outlined the reasons for comparative law’s current Cinderella status.  He, then, highlighted a wide-ranging body of exemplary scholarship that is chipping away at the paradigms that have hitherto tended to overly-confine comparative law.  While stressing that such changes are fragile, contested, and tentative, Professor Sugarman concluded that they exemplify a potential and much-needed shift in the paradigms underpinning comparative law, one that is more suited to the needs of the twenty-first century.

Ahmed Hegazi – Getting Published - “Do not fear rejection”

Ahmed represented the workshop’s sponsor Intersentia, a publishing house specialising in law. Ahmed is an Editor and explained that his role is to oversee the entire production process.  He informed attendees how the publishing industry is undergoing major changes, but print is still vitally important.  He explained the process that is undertaken for a PhD thesis to transform into a monograph, and the criteria that is required in order for a manuscript to be accepted by Intersentia. Ahmed emphasised that students and academics should not fear rejection, as such is part and parcel of the experience to move from research to publishing. Three characteristics that Intersentia looks for in new proposals are quality, originality, and commercial viability.

 Following this incentivisation, the presentations from the first panel commenced:

  1. Narine Lalafaryan (Cambridge): ‘Material Adverse Change Doctrine in the English Law of Debt Finance: Economic Analysis of Law’
  2. Chike Emedosi (Aberdeen): ‘A comparative analysis of the transfer of rights in securitisations under Scots law and English law’
  3. Erman Ekingen (Lancaster): ‘Consumer Welfare Standard in Online Multi-Sided Platform Markets: The cases of Booking.com in Europe and Turkey’

Narine Lalafaryan (Cambridge) - “Trigger effect”

Narine is a Hogan Lovell Scholar at Cambridge. She discussed the material adverse change (MAC) doctrine in the English law of debt finance. She discussed the three types of methodological approaches she was going to adopt in her thesis: (1) doctrinal, (2) functional comparative, and (3) economic.  Her presentation was an insightful account of the nature and essence of MAC doctrine in debt finance and mergers and acquisitions. The doctrinal comparison of her thesis is the difference between MAC in debt finance with MAC in mergers & acquisitions, and she will focus on three main aspects: (1) importance, (2) relevance, and (3) justifications of applicability. She explained the trigger effect of utilising a MAC clause, which can result in a detrimental effect on the wider economy, highlighting the case of Bank of America’s acquisition of Merrill Lynch and the Treasury’s intervention to prevent Bank of America triggering the MAC clause, in order to prevent a domino effect on the economy.

Chike Emedosi (Aberdeen) - “Equity, Trust or Registration Solution?”

Chike provided a comparative analysis of the transfer of rights in securitisations under Scots law and English law.  Chike discussed ‘what is securitisation?’ and then went on to discuss the legal difficulties, as well as the legal solutions available under English and Scots law. Chike focused on four solutions: (1) legal assignment (status quo), (2) English equitable assignment regime, (3) Scottish trust regime, and (4) Scottish Law Commission’s registration. He analysed how efficient the solutions were concluding that a change from the status quo to the Scottish Law Commissions’ (SLC) registration regime would achieve a Pareto efficiency.  The SLC’s regime can be considered as the most efficient.

Erman Ekingen (Lancaster) - “Integrating into e-commerce is essential”

Erman discussed the consumer welfare standard in online multi-sided platform markets, specifically focusing on the example of Booking.com in Europe and Turkey. First of all, he explained the trade transformation in the World, the importance of the digital economy, the general concept of multi-sided platforms and the importance of consumer within the competition law. After all these explanations, he analysed the current situation of online multi-sided platform markets in the concept of competition law and tried to find answers to questions of “Is containing MFN clauses in the agreement between booking.com and platform user hotels anticompetitive and What are the effects of this practice to consumer welfare standard?”. He concluded that different decisions from different national competition authorities do not provide a sufficient solution to that problem and further and specific discussions on online multi-sided platform markets and potential problems therein are needed.

The second panel in the afternoon allowed another three PhD students to discuss their research.

  1. Sarah Gilmartin (Lancaster): ‘Controlling Wealth from Beyond the Grave: Can You Spend the Kids’ Inheritance? A comparative assessment of the operation of testamentary freedom in discretionary jurisdictions and forced-heirship jurisdictions’
  2. Eliza Bechtold (Durham): ‘Terrorism, the Internet, and the Threat of Freedom of Expression: the regulation of digital intermediaries in Europe and the United States’
  3. Javier Escobar Veas (Milan – Bocconi): ‘Ne bis in ibidem and concurrence of criminal and civil sanctions’

Sarah Gilmartin (Lancaster) - “Can you SKI?”

Sarah considered the operation of testamentary freedom in discretionary jurisdictions such as England and Wales, and in forced-heirship jurisdictions such as France. Sarah also considered countries which utilised systems akin to forced-heirship, looking closely at Scotland’s use of legal rights and Louisiana’s legitime. The predominant focus of Sarah’s research is on Inheritance Laws in England and Wales, however the purpose of her paper was to consider whether forced-heirship, or systems akin to the same, resolve common disputes for those left behind and if they are more cost-effective than the English and Welsh system of allowing ‘reasonable financial provision’ applications under the Inheritance (Provision for Family and Dependants) Act 1975, or whether forced-heirship creates as many of its own difficulties. In considering the different jurisdictions Sarah considered where a person may prefer to live if they wished to SKI (i.e. Spend the Kids’ Inheritance) and concluded that England and Wales may be preferred to France as forced-heirship requires strict control of a parent’s dispositions in life, in order to ensure the ‘hereditary reserve’ is preserved for the heir or heirs. Sarah also noted, however, the potential economic benefit to a financially deprived heir under a forced-heirship system rather than those in a discretionary one.

Eliza Bechtold (Durham) - “Regulation, regulation, regulation vs A digital free for all”

Eliza discussed terrorism, the Internet, the threat to freedom of expression, and the regulation of digital intermediaries in Europe and the United States. Eliza began her talk with two interesting questions: (1) who is least likely to kill you, a bee or a terrorist? and (2) who is least likely to kill you, a lawnmower, a terrorist, or a toddler?  These questions were designed to challenge perception. She looked at the measures aimed at combatting terrorism and the extent to which governments and supranational bodies may legitimately impose on the right to freedom of expression in the name of countering terrorism. She discussed both the European and the American approach, concluding that the European approach is regulation, regulation, and regulation, whilst the American approach is a digital free for all.

Javier Escobar Veas (Bocconi) - “To understand ‘ne bis in idem’ correctly”

Javier provided an account of ne bis in idem and the concurrence of criminal and civil sanctions focusing on the differences with the American and Spanish approaches. He provided an account of a re-trial of an individual after having already been tried. Javier focused on the ICCPR, ECHR, and CFREU concepts.  There are three main requirements of the ne bis in idem: (a) criminal nature, (b) same offence, and (c) sufficiently close connection in substance and in time. He applied these three criteria to both the American and the Spanish approach.

The second day started with four students making up the third panel of the workshop:

  1. Morad El-Kadmiri (IALS): ‘Wigmore’s Powerpoint and the pre-digital era’
  2. Marcelo Carvalho Loureiro (Birmingham): ‘Nationality and the colonial footprint in British and Portuguese law’
  3. Marco Galimberti (Milan – Bicocca): ‘Towards a regional community of constitutional courts? Exploring the interplay among national constitutional courts in the paradigm of European integration’
  4. Yuqing Zhao (Southampton): ‘The duty requirement for commissions by omission liability in English and Chinese criminal law’

Morad El-Kadmiri (IALS) - “Inspiring life into teaching”

Morad discussed Wigmore’s Powerpoint and the pre-digital era.  He began his presentation by providing a brief history of Wigmore. Wigmore tried to introduce images into his teaching.  Morad had two parts to his presentation: (1) the man: career and scholarship, and (2) the visionary method. Morad’s presentation focused on the book A Panorama of the World’s Legal Systems which contained 3 volumes and 500 coloured illustrations, emphasising that Wigmore believed the history of law could be enlivened with pictures. He concluded that Wigmore did not necessarily provide a comparison of jurisdictions, more of an account of different legal systems in the world, akin to a legal history.

Marcelo Carvalho Loureiro (Birmingham) -“Colonial footprints”

Marcelo’s presentation was on the nationality laws in the era of globalisation(s): a comparative post-colonial approach on legal belonging.  He set out his research questions before discussing his three main approaches: (1) comparative, (2) theoretical, and (3) post-colonial. Marcelo provided a history of nationality laws and discussed the partial outcomes of his research. He aimed to prove two points in his research; first that citizenship and nationality translate into two different ways to comprehend who is a member of the national socio-legal-political community; and the second is that the colonial process influenced significantly the manner in which these states grant full membership status. He considered how nationality and citizenship can be used interchangeably and that citizenship in the UK is not easy to define as the UK has 6 different types of citizenship.

Marco Galimberti (Milan) - “Ongoing national interplay”

Marco provided an account of regional community in constitutional courts, exploring the interplay among national constitutional courts in the paradigm of European integration.  He focused on the use of the Charter of Fundamental Rights of the EU, and provided a comparative analysis.  He started his presentation with some background information before discussing judgment no 269/2017 that was a milestone in the Italian constitutional jurisprudence, marking the first time that the Italian court empowered itself to use the Charter. Marco walked through the Brenner: the Austrian model, and then applied the Charter, as well as discussing the domino effect of the migration of the counter-limits doctrine.  Finally, Marco discussed the UK Supreme Court case of Benkharbouche.

Yuqing Zhao (Southampton) - “Commission by omission”

Yuqing provided a comparative study of criminal omissions in England and China. Normally there is no criminal liability for omissions unless there is a duty to act.  There are two different types of liability: (1) liability for genuine omissions, and (2) liability for commissions by omission.  She provided an account of the three approaches in China, as well as the approach in England.  She concluded that China should learn from the English experience by including consent in determining the existence of a duty to act.   Yuqing considered the English case of R v Smith[1979] Crim LR 251 which respected a citizen’s right to self-determination and compared this to cases in China where victims have committed suicide and a person’s failure to prevent the same has been defined as a commission by omission, even though suicide itself is not illegal or a crime. Yuqing explained there is a gap in the literature with limited comparisons between England and Wales, and China, which she is keen to explore and develop in her research.

 The fourth and final panel of the workshop allowed three students to discuss their research:

  1. Lindsey Claire Hogg (Lancaster): ‘Living Minors as Tissue Donors in England, Wales, and Scotland. A Critical Discussion’
  2. Ergul Celiksoy (Nottingham): ‘Life Imprisonment in England and Turkey in the context of Europe: A Comparative Jurisprudential Study’
  3. Arantxa Gutiérrez (Edinburgh): ‘The taxonomy of non-pecuniary losses. A comparative study of English law and French law’

Lindsey Claire Hogg (Lancaster) -“Consent vs Authorisation and Regenerative Tissue vs Non-Regenerative Tissue”

Lindsey focused her presentation on the two main aspects of her research which were comparative.  Her research focuses on living minors as tissue donors in England, Wales, and Scotland. The first half of her presentation discussed the use of the term consent in the Human Tissue Act 2004, in England and Wales, compared to the use of the term authorisation in the Human Tissue (Scotland) Act 2006, in Scotland.  She concluded that the use of the term authorisation in the guidance provided by the Human Tissue Authority was synonymous to the term consent as it was given an identical definition, therefore, a consistent term should be used across both jurisdictions. Lindsey then discussed the differences between the donation of regenerative and non-regenerative tissue from living minors. In Scotland, minors are only permitted to donate regenerative tissue, whilst in England and Wales minors are able to donate both types of tissue. Lindsey discussed the medical risks of a kidney, and a lobe of liver donation, and also considered the psychological benefits of a minor donating to their sibling. Her contention being the approach in Scotland should be adopted in England and Wales, and restrictions should be placed on the types of tissue a minor can donate, because the psychological benefits do not outweigh the medical risks of donating non-regenerative tissue.

Ergul Celiksoy (Nottingham) - “The different types of life imprisonment”

Ergul presented his ongoing PhD research on life imprisonment in England and Turkey in the context of Europe: a comparative jurisprudential study. His paper aimed to shed light on the imposition and implementation of, and release from life imprisonment in England and Wales and Turkey against the background of the European standards for these three stages of life imprisonment. First of all, he explained the methodology of the thesis which is based on the eternal triangle, ‘What’, ‘Why’, and ‘How’ questions of his research. After that, the general details about life imprisonment and the different forms of it in England and Turkey were compared and how these countries can comply with the European standards for life imprisonment was explained. He concluded that to understand the different decisions and standards against life imprisonment that human rights treaties, recommendations, reports and decisions should be understood and compared with all national legislation.

Arantxa Gutierrez (Edinburgh) - “One third of damages are non-pecuniary”

Arantxa considered the taxonomy of non-pecuniary losses in English and French law. Whilst non-pecuniary losses account for one third of damages, they are not doctrinally well considered in England. She considered that the words damage, loss, wrong, and harm are all used interchangeably. Arantxa has used two theoretical models to explain her research. In some cases, a two-tier (or bipolar) structure can be observed, where the wrong and the concrete consequential losses that flow from it are conceptually different. In this model all the losses flow from the individual wrong. Personal Injury aligns to a bi-polar model.  However, in other situations, it is possible to see the operation of a unipolar model (which is also normative and abstract) where wrong and loss are conflated. Protection of privacy aligns to the uni-polar model. Frequently, these two models are used at the same time by the courts both in England and France, thus creating potential overlaps between these two logics. Aranxta seeks to explain in her research the current structure of non-pecuniary losses in theoretical terms, and to propose a way to rationalise their taxonomy in England and France, noting that non-pecuniary and economic losses are equally hard to measure.

The workshop concluded with good intentions and wishes to meet again next year in Bristol. It provided all participants with different perspectives and topics to discuss, new questions to answer and new information on both methodology and academic literature of comparative law. Participants were encouraged by Dr Nordhausen-Scholes to take the spirit of the workshop to talk to others about their research, in order to continue to challenge themselves and their supervisors.