Dr. Thomas Marx Award 2012

Dr. Thomas Marx Award 2012

WINNER OF THE DR. THOMAS MARX AWARD 2012:

Zak Golombeck, Linder Myers LLP

<b>WINNER</b>:  Zak Golombeck

WINNER: Zak Golombeck

Firm: Linder Myers LLP, Manchester/United Kingdom

Summary:

Can we simply say what we want? How much power does the State have to curtail our spoken and written expressions? Free speech is one of the most fundamental rights of man, some say it is a close second to the right to life. Nevertheless, the freedom of expression is not an absolute right in both the United States of America (US) and the United Kingdom (UK). But, how free is it? This paper will analyse the laws governing the freedom of expression in both the US and the UK. The differences between the constitutions of these countries are stark: one has a written constitution, the other does not; one has a Supreme Court which is able to strike down laws enacted by the Executive, the other has a principle which states that the legislature is sovereign. Both, however, have a panoply of laws and jurisprudence which I will be comparatively analysing.  Before I even cite the laws and jurisprudence, I think it is imperative to know how these laws came about. I shall review, briefly, the history of ‘free speech’ and the philosophy and writings throughout the years, from Socrates to John Stuart Mill.

Finally, I shall concentrate on what the future holds for free speech in both countries, particularly as both will be coming to terms with the exponential increase in the use of social media sites and the blogosphere.


Paper:

How free is your speech? A comparative analysis of the laws protecting free speech in the US and the UK.

Helen Rowland

Participant: Helen Rowland

Firm: Capital Law LLP, Cardiff/United Kingdom

Summary:

A discussion of jurisdictional issues in internet defamation claims following the decision of the Court of Justice of the European Union in C-509/09 and C-161/10 eDate and Martinez Judgment of October 2011

It has become difficult for people in the developed world to remember a world without the internet and yet it is a comparatively recent technological development.  The fortieth birthday of the internet was celebrated in 2009 and the world wide web, a term now frequently used as synonymous with the internet, did not emerge until the 1990s. The recent developments known as Web 2.0, which facilitates user generated content, has had a dramatic effect on the utility of the internet as a medium of mass communication. Millions of people both read and write blogs and share information about themselves and others on social networking sites. It is almost impossible to overestimate the effect this has had on the dissemination of all types of information; there is simply much more information, easily accessible to anyone with access to the internet. On the one hand this has created a democratising effect; internet users, whatever their status and background now have equal opportunity to participate in discussion about all manner of topics and express their views to a large and potentially global, audience. Freedom of expression is thus enhanced in the online environment, but it is also accompanied by far more opportunities for the circulation of intrusive and vituperative information with the potential to infringe the privacy and reputational rights of other users.

It is arguably much more likely than defamatory comments will be published on the internet than that they will appear in a print publication. The latter is likely to be subject to editorial control and those involved are perhaps more aware of the standards required by the law of defamation. In contrast, much of the information placed on the internet is unmoderated by any intermediary and the circumstances of the publication (Twitter or Facebook, for instance) are likely to be much more informal. In addition, participants in a ‘thread’ on a blog, for instance, as they become embroiled in a discussion may cease to remember that their interchanges can be read by a large audience from all corners of the world.

Defamation litigation on the internet began in the early 1990s and there have since been many such cases. The litigation has caused a number of problems for the application of relevant legal rules which include issues of jurisdiction, the lack of global harmonisation of defamation law and questions of who is liable. The first of these has been a pervasive topic and has led questions to be asked as to whether publication on the internet which transcends the usual jurisdictional boundaries calls for separate rules from those which are applied to more traditional publications.

These issues have not been resolved and have been highlighted by the judgment of the CJEU in C-509/09 eDate and Martinez which appears to establish modified jurisdictional rules for internet publication. In the light of this judgment, the current paper examines the problem of where publication is deemed to take place on the internet, and whether or not the rules governing jurisdiction need modification for application to internet cases. It reviews some of the key cases on defamation on the internet, examining the way in which publication has been approached by different courts and considering the contribution made by this latest judgment from the CJEU. This analysis is significant for the application of current legal rules to a global technology which continues to provide its users with methods for sharing and disseminating information whether scurrilous, critical or complimentary. It is vital that the relevant legal rules, though bound to their individual jurisdictions, are able to accommodate ongoing developments in information and communications technology.


Paper:

Is eDate the final piece in the mosaic or just one more in the puzzle?

Patrycja Nowak

Participant: Patrycja Nowak

Firm: RGW Rocławski Graczyk i Wspolnicy Adwokacka sp. k., Warsaw/Poland

Summary:

As we can see the topic of taxation of financial institutions is a matter of high-importance. Financial institutions are part of the financial sector and the transactions in which they take part generate significant amounts of money. The importance of this matter is indicated by many proposals for taxation of financial institutions that were implemented in many European Union (EU) countries. The European Commission has taken actions aiming for introducing taxation of financial transactions. The EU proposal refers to the Tobin tax – an idea that has arisen in the end of the 70s.

The topic of taxation of financial institutions is very controversial, like every attempt of introducing a new tax. The opponents of the financial transactions tax claim, that the direct result of its introduction would be a  very easy escape of the most of easy to tax capitals and transactions to the outside of the EU. Even the EU Commission presents this initiative as a start to a global reform, which will be continued by others. It will be difficult to achieve international enthusiasm in this matter.

The European Commission assumes that introducing this tax (Financial Transaction Tax) would in a longer term, lower the GDP by 0,5% - to 1,8%. For an initiative supposed to be a new budget income source in the times of expanding crisis, introducing the financial transactions tax may be a means capable of having a result opposite to the intended.

The European Commission Communication on supporting developing countries coping with the crisis of 8 April 2009 is also worth noting. It regards the obligation taken up by some of the EU member states to grant aid to EU banks, amounting to €3 trillion. According to this obligation, €2,3 trillion would be the amount of financial guarantees. €300 billion would be used for recapitalization of banks, and €400 billion would be allotted for reorganizational programs.

It should be mentioned that Poland, alongside Slovakia, Romania, Lithuania, Estonia and Bulgaria, did not oblige to give any help to the banks of their countries, believing that many foreign banks are active there, and the local ones are in good financial condition. Only until the end of May of 2009, 50 decisions to assist banks were taken and 23 repair programs were introduced in the EU.

The costs of aid for banks have no connection with the expected benefits from introducing the taxation. The estimated income from the financial transactions tax is about €60 billion a year. It would, therefore, take 50 years for the income from the tax to cover the cost of the aid for the banks.

In the context of FTT an interesting solution is preference the worldwide proposal for an FTT above the EU proposal. Firstly, the problem of the susceptibility to other instruments and other territories is solved. Secondly, in the FTT treaty there was stated that low rates will ensure the market function. Moreover, a broad tax base as proposed including potential substitutes would reduce also the distortions of an FTT. Fourthly, on a less common but equally important consideration is the moral aspect of a global FTT, particularly whether the proceeds of such a tax could be used to promote greater distribution of wealth and economic equality throughout the world.


Paper:

Taxation of Financial Institutions in Europe.

Eoin McGlinchey

Participant: Eoin McGlinchey

Firm: Lavelle Coleman, Dublin/Ireland

Summary:

Arbitration is now a widely used and popular method of dispute resolution, often seen as less expensive, quicker and offering more privacy than resorting to the Court system. The UNCITRAL Model Law was adopted into Irish law in the 2010 Arbitration Act, bringing Ireland into line with over 70 countries across the world that have adopted the Model Law as the basis for arbitration proceedings in their domestic jurisdictions. Many of these countries, and all members of the EU, are also signatories to the European Convention on Human Rights ("ECHR"), which sets out a number of basic rights and protections afforded to every individual and offers those individuals recourse should any of those rights be violated. One of the central tenets of the Model Law, and arbitration in general, which is avidly espoused by champions of arbitration, is that the decision of the arbitrator is binding and fmal and that Courts, domestic or otherwise, should not be entitled to interfere with the decisions of an arbitrator except in extremely limited circumstances. The aim of this paper is to analyse the Model Law and the ECHR and to determine whether the de facta prohibition of a right of appeal from adecision of an arbitrator is in fact a breach of some of the fundamental rights guaranteed by the Convention and, therefore, by any state that has ratified it. In concluding that it is a breach of the ECHR the paper then goes on to consider the liability of domestic states that have adopted the Model Law to parties to arbitration who find themselves with no remedy from a perverse decision of an arbitrator. Although the specific issue of a breach of the Convention as regards a right of appeal is something that has not yet been determined by the European Court of Human Rights (ECtHR), a number of other cases that involve a breach of the Article 6 have been determined. Decisions of earlier Commissions largely favoured the States however more recent decisions have vindicated the rights of the individuals. With the upsurge in alternative dispute resolution forums and particularly with international commercial arbitrations becoming far more common, the issue of whether or not these arbitrations, almost all of which utilise the UNCITRAL Model Law as a template if not adopting it wholly, breach the ECHR is of vital importance. There can be no doubt that it is only a matter of time before this issue is brought before the ECtHR for determination and, as detailed in the within paper, recent decisions of that Court would suggest that the Model Law would be found to be in breach of the Convention. Obviously this would represent a major seismic event in legal circles and greatly affects the rights of any party to arbitration. Not only that, but it would seriously affect the status and popularity that arbitral proceedings currently enjoy. Nevertheless, if it is the case, as this paper argues, that the fundamental rights of parties to an arbitration are breached simply by reason of their being a party to an arbitration agreement, this should not be allowed to continue.

 


Paper:

Arbitration, the Irish Arbitration Act 2010, the UNCITRAL Model Law and the European Convention of Human Rights

Laura Bolger

Participant: Laura Bolger

Firm: Lavelle Coleman, Dublin/Ireland

Summary:

In times of economic uncertainty across the globe, the many issues surrounding
the laws of insolvency have become increasingly important, in particular where a
company has assets and creditors in more than one jurisdiction. It has been
noted that many creditors and indeed, insolvency practitioners are unaware of
the rules relating to the proper jurisdiction for insolvency proceedings and this
paper seeks to clarify the issue.
This paper looks at the EC Insolvency Regulation and the attempts that have
been made to harmonise the laws in the area to create a legal structure that
provides more certainty to insolvency practitioners, creditors and other
stakeholders. It highlights the failings of the EC Insolvency Regulation, in
particular the failure to define the Centre of Main Interests which is the core
factor in determining what court shall have jurisdiction over insolvency
proceedings. It also looks at the difficulties which can be encountered where the
Centre of Main Interests of a company is outside the EU, even it is registered
within the EU.
The paper also looks at the main aspects UNCITRAL Model Law on Cross
Border Insolvency. As it has only been adopted by eighteen countries, it
questions why there has not been more of a widespread adoption of the Model
Law and why there has been a reluctance to adopt same.


Paper:

No frontiers: An Analysis of the EC Insolvency Regulation and the UNCITRAL Model Law on Cross Boder Insolvency and how each will apply to a cross border insolvency.