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

08/12/201908/12/2019 Editors Analysis, Articles

‘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

25/11/201925/11/2019 Editors Analysis, Articles

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.

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

17/10/201917/10/2019 Editors Analysis, Articles

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.

The new Hague Convention: Aspirations of Certainty, Efficiency and Access to Practical Justice through the Recognition and Enforcement of Foreign Judgments – Xara Kaye

20/08/201920/08/2019 Editors Analysis, Articles

On 2 July 2019, the Member States of the Hague Conference on Private International Law (HCCH) formally adopted the 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (2019 Convention), a significant development in the private international law landscape. The aim of the Convention is to create greater legal certainty and efficiency, as well as provide a process for cost-saving and practical access to justice. While the Convention has been heralded as an important instrument that will fill a significant gap in private international law, its impact will be determined by the extent to which it is broadly adopted – an outcome which is not guaranteed.

Did the War on Iran Just Begin? The Use and Abuse of International Law in the Strait of Hormuz – Natalie Klein

07/08/201907/08/2019 Editors Analysis, Articles, News 1 Comment

Over the last month, the world has witnessed a series of tit-for-tat maneuvers involving Iran, the United States and the United Kingdom. Sitting amidst the strategic and political stakes are complex questions of international law. Claims of ‘state piracy’ and proposing convoys in the Strait of Hormuz now appear to be contributing to the tension rather than facilitating the resolution of competing claims.

The WTO Dispute Settlement System: Just another Victim on the Road to Tomorrow’s GATT? – Markus Wagner and Weihuan Zhou

09/07/201909/07/2019 Editors Analysis, Articles

The current dispute over the future of international trade (oftentimes referred to as a “trade war”) has moved the WTO from an obscure field of research into the public spotlight. These discussions centre on the economic relationship between China and the US. However, another significant battle is playing out over the future of WTO dispute settlement.

The central question that remains unanswered – and which we are trying to uncover in this post – is why the US has embarked on a process which pits itself against the very large majority of the WTO membership (see only here, here and here) and which has the potential to end WTO dispute settlement. Before the WTO Dispute Settlement Body, the US has complained about (1) individuals who are no longer formally members of the Appellate Body (“AB”) continuing to adjudicate disputes; (2) non-adherence to the 90-day deadline for issuing AB reports; (3) the use of obiter dicta in AB reports; (4) the AB’s misapplication of the standard of review; (5) AB reports having precedential effect; and (6) AB interpretations and decisions having amounted to judicial overreach.

ICC Appeals Chamber resurrects controversial customary international law argument to find Al-Bashir has no immunity before international courts – Keilin Anderson

15/05/201915/05/2019 Editors Analysis, Articles 1 Comment

Last Monday the Appeals Chamber (AC) of the International Criminal Court (ICC) delivered its judgment on the question of Omar Al-Bashir’s immunity from prosecution for international crimes. In addition to the majority judgment, four Judges penned a Joint Concurring Opinion. A joint dissenting opinion from two Judges is yet to be published.

The decision has already been described in early commentary as ‘stunning’ ‘deeply misguided’ and ‘extremely controversial’.

Reciprocal Recognition and Enforcement of Foreign Judgments in China: Breakthrough and Trend – Associate Professor Jeanne Huang

25/01/201925/01/2019 Editors Analysis, Articles, Opinion

Chinese Civil Procedure Law (CPL) provides that foreign judgments can be recognised and enforced according to reciprocity if no treaty is applicable. However, although Chinese judgments have been recognised and enforced in many countries without a treaty, China had never reciprocated before 2016.^[1]Since 2016, Chinese courts unprecedentedly recognised and enforced foreign monetary judgments based on de facto reciprocity. This spurs rich literature with mixed views about the future direction of reciprocity-based judicial recognition and enforcement (JRE) in China.^[2] This post aims to add to the current debate from two aspects. First, it tries to answer the doubts in contemporary literature about whether the two foreign judgments recognised and enforced in 2016 and 2017 are fortuitous. Second, it addresses the question of what the trend of the Chinese reciprocity-based JRE law might be.

Philosophy, Priorities and Provisional Measures: The ICJ’s Order on the United States’ Sanctions against Iran – Molly Thomas

09/11/201809/11/2018 Editors Analysis, Articles, ILA Updates, Opinion

On 3 October 2018, the International Court of Justice (“the Court”) handed down its decision on provisional measures in the Islamic Republic of Iran’s (“Iran”) case against the United States of America (“United States”) for alleged violations of the 1955 Treaty of Amity, Economic Relations and Consular Rights (“Treaty of Amity”).

The case arose out of the issuing by United States President Donald Trump of a National Security Presidential Memorandum ending the United States’ participation in the Joint Comprehensive Plan of Action (“JCPOA”), a multilateral plan designed to monitor and manage Iran’s compliance with its nuclear disarmament by lifting sanctions imposed on Iran by major world powers, including the United States. The President ordered that sanctions lifted under the Obama Presidency be reimposed.

A Tad on the Intersection between Climate Change and Free Trade Agreements – Dr Jadranka Petrovic

07/11/201813/11/2018 Editors Analysis, Articles, Opinion

Climate change is considered to be one of the most serious (‘the most serious’?) of all the threats that our planet is facing currently. Research shows that in its potential impact, climate change poses a graver problem than weapons of mass destruction, cyber war, terrorism, armed conflict and every other peril. One of the main reasons that climate change figures strongly is due to its interrelatedness with other problems, including the adverse effects of international trade on the environment. It has been argued that although beneficial and indispensable economically, trade can exacerbate pollution and other forms of environmental degradation, particularly carbon dioxide (CO₂) emissions. An unprecedented expansion of international trade since the 1950s has significantly impacted upon the environment. Trade is predicted to continue to be one of the major factors driving economic growth in the future. In parallel, it is expected that carbon dioxide emissions will continue to accelerate with growth indefinitely and that the very fact of increased trade, in and of itself, will lead directly to more global greenhouse gas (GHG) emissions. As free trade agreements (FTAs) are being increasingly negotiated throughout the world,[1]the questions of whether and how these agreements can be used to support a successful transition to a low emission and resilient economy is becoming more and more significant. By considering the effects of climate change on the Great Barrier Reef in Australia as an example, this article pinpoints (albeit tangentially) some of the trade-climate-change-related concerns in the context of the recently signed Comprehensive and Progressive Agreement for the Transpacific Partnership (CPTPP).