Learning from One Another? Judicial Comparativism as a Facet of Transnational Employment Regulation in the Gig Economy – Margarita Amaxopoulou

‘Workplace laws have not kept pace with technological change’. This was the assertion of the Australian Select Committee on the Future of Work and Workers in its recent report at [4.119], recommending that legislative reform is necessary to afford gig workers employment law protections. Beyond Australia’s borders, ‘AB5’, an Act protecting gig workers as employees, passed the Senate of California this spring and signed into law on 18 September 2019. Regulators in the UK are also committed to bringing forward legislation aligning employment status definitions with modern working practices (p 44). The gig economy, however, does not only attract the attention of legislatures; it also constitutes the locus of fierce litigation around the world concerning the application and enforcement of EU, public, competition and employment law.

This article discusses the transnational character of gig work regulation by reference to litigation against Uber concerning the (mis-)classification of employment status in three jurisdictions. It does so to make the case for a much-needed judicial ‘comparativism’ in this particular context. First, I present a comparative analysis of the legal tests applied in cases with similar factual background in Australia, the United Kingdom and the State of California which led to different legal resolutions. Second, in light of the global character of this legal problem, I argue that judicial comparativism engaging with the reasoning of relevant foreign case law is an important facet of transnational employment regulation in the gig economy.

Icebergs and international law – Matthew Paterson

Despite indigenous peoples such as the Inuit having harvested ice – including from icebergs – for drinking water for centuries, the prospect of commercial harvesting is suddenly gaining mainstream traction. As The Atlantic reports, “Luxury berg-water companies are cropping up across the Arctic. Plans for large-scale operations are growing as well.” While the scale has thus far been minor, there are large-scale plans such as those by the UAE to tow icebergs from Antarctic waters to be harvested.

At first blush, this recent hive of activity seems to operate in a lacuna of international law. After all, icebergs are not specifically mentioned in any international treaty and, as any harvesting has only been on a decidedly small scale, it is exceedingly unlikely that any state practice has yet emerged. Thus, The Atlantic suggested that international lawyers will have to wait for state practice and, ultimately, custom, to develop before there are clear international rules for how icebergs should be treated.

I beg to differ. While there is no International Convention on the Status of Icebergs, that does not mean they exist in a total international law vacuum. Rather, the International Convention on the Law of the Sea (UNCLOS) provides a framework through which the rules surrounding the harvesting of icebergs can be ascertained.

Event: Beyond Googlies & Cricket: India and Australia Trade, Investment, and Successful Dispute Resolution, 20 November 2019

The Australian Dispute Centre is holding a panel session on 20 November 2019 to discuss the possibilities for the relationship between Australia and India. The event will be hosted in a variety of venues in Brisbane, Sydney, Melbourne, Perth, Adelaide, Patiala, Chandigarh, New Delhi and Kolkata.

Panelists include Gitanjali Bajaj (Partner, DLA Piper), Jo Delaney (Partner, Baker McKenzie), Bronwyn Lincoln (Partner, Corrs Chambers Westgarth) and Natasha Bopaiah (Company Secretary, Australia India Business Council) and will be chaired by Matthew Hickey (Barrister, Level 27 Chambers).

With rising bilateral trade and investment between Australia and India, this is a tremendous opportunity to network in a relaxed atmosphere with members of the Australia India Business Council, legal and ADR colleagues.

For more information, and to register, visit the ADC’s website.

Submissions for the Australian International Law Journal

The deadline for submissions for the upcoming issue of the Australian International Law Journal is 30 November 2019.

From a modest beginning in 1983 as Australian International Law News, the Australian International Law Journal has become a peer-reviewed law journal of international standing. Articles published in the Journal cover a wide range of topics of public and private international law.

Previous issues of the Journal may be accessed on AustLii.

For more information, please refer to the Guidelines for Authors and Publication Policy, or contact the Editor-in-Chief of the AILJ, Professor Anthony Cassimatis on a.cassimatis@law.uq.edu.au.

International investment law and the technologisation of intellectual property administration: is it fair and equitable? – Alexander Ferguson

States are increasingly using technology, such as artificial intelligence, to assist with the administration of government. The World Intellectual Property Organization (‘WIPO’) has identified, for example, that artificial intelligence patent applications for computing in government grew by 30% between 2013 and 2016 (see report at page 51).

The administration of intellectual property is one area where technology is increasingly being used. A 2018 WIPO survey found that at least 17 states, including Australia, had started to use artificial intelligence to administer their intellectual property regimes. Such technologies can reduce the cost of administering patent and trademark regimes, and can improve the speed and quality of decisions, such as by reducing errors. However, at least some commercially available tools are ‘not mature enough and cannot be relied upon’ (WIPO, page 46).

Space Laws: Criminal Jurisdiction in Outer Space – Danielle Ireland-Piper

In August 2019, reports emerged of NASA investigating an allegation that an astronaut committed a crime in space. This gives rise to the question: what criminal law is to guide individuals in outer space? In that particular instance, the answer is relatively straightforward because both the alleged perpetrator and alleged victim are United States nationals and because the alleged conduct took place on the International Space Station (ISS), which is governed by an agreement with specific provisions on criminal jurisdiction. In sum: the law of the United States applies. However, if the victim or perpetrator had been of different nationalities, and had the conduct taken place other than on the ISS, the answer might be more complex.

Call for Applications: Media Officer of the International Law Association (Australian Branch)

The International Law Association (Australian Branch) (ILA (AB)) is currently recruiting for a new Media Officer. The role of Media Officer is a voluntary position. The Officer will be responsible for maintaining and growing the online presence of the ILA (AB) through social media platforms such as Facebook, Twitter and LinkedIn.

Candidates will be in their penultimate or final year of a law degree, graduates or young lawyers. A double degree with Law and Media, or prior experience in managing an organisation or society’s social media accounts is an advantage but not essential. Candidates also should have a strong interest in international law.

To apply, send a copy of your CV and academic transcript to mediaofficer@ila-hq.org before 5:00 pm (AEST) on Friday 18 October 2019. Please also include a 150-word statement of interest. This may include details of relevant experience, and ideas for the role.

Full details are available here.

Australian Antarctic Law and Policy through the Lens of Chinese Academics – Nengye Liu

In her book “Is International Law International?”, Anthea Roberts raises the concept of “comparative international law”. Roberts illustrates the different national and regional approaches towards understanding, interpretation and application of international law. She points out that national approaches to international law plays an important part in “a transnational field that aspires to develop common rules to facilitate inter-state coexistence and cooperation”. Furthermore, academics play an influential role in a State’s international law practice, through their scholarship and practice.

The approach of comparative international law is useful in the Polar Regions. In recent years, China has been significantly expanding its presence in Antarctica. For example, China now operates three research stations in the Australian Antarctic Territory (AAT), including Kunlun Station at Dome A – the highest point of the Antarctic ice sheet, and since 2013, China has been proposing to establish an Antarctic Specially Managed Area around Kunlun Station to the Antarctic Treaty Consultative Meetings. Furthermore, China is now building its fifth Antarctic station on Inexpressible Island in the Terra Nova Bay of the Ross Sea.

Private prosecutions for international crimes: the High Court of Australia closes the door on individuals seeking to end impunity – Keilin Anderson

Last week, the High Court handed down its judgment in Taylor v Attorney-General [2019] HCA 30. It was a close call with a slim 4:3 majority dismissing the application. The decision concerned the attempted prosecution of Aung Sun Suu Kyi under Division 268 of the Criminal Code Act 1995 (Cth) (Criminal Code) which represents Australia’s implementation of the Rome Statute and the source of our universal jurisdiction over international crimes.

The case highlights some complex questions – that arguably linger – about the significant procedural hurdles facing the prosecution of international crimes in Australia.

Event: 2019 International Arbitration Conference, 18 November 2019

The Australian Centre of International Commercial Arbitration (ACICA) and the Chartered Institute of Arbitrators Australia (CIArb Australia) will be holding the 2019 International Arbitration Conference in Brisbane on 18 November 2019. The theme of the Conference is ‘Building Bridges: Resolving Disputes through International Arbitration.’

As international arbitration remains the preferred means for commercial and state entities to resolve disputes in the global economy, building bridges, and not walls, is key to maintaining good relationships to ensure growth, competitiveness and new opportunities.

This one-day conference is Australia’s premier international arbitration event and will launch the 2019 Australian Arbitration Week. Supported by global institutes, government, industry associations, sponsors and media partners, it will bring together eminent jurists including the Honourable Justice Patrick Keane AC, High Court of Australia, who will deliver the keynote address, and expert practitioners from five continents and 15 jurisdictions who will impart their knowledge and experiences in examining emerging trends in various key sectors.

A cocktail networking reception will follow proceedings featuring guest speaker, the Honourable Yvette D’Ath, Attorney General and Minister for Justice, Queensland Government.

Full details of the Conference, including the program and registration, are available on the Conference website. Early-bird registration is available until 18 October 2019 and all registrations close on 13 November 2019.

The International Law Association (Australian Branch) is a supporting organisation for the 2019 Conference.