The past decade has seen a number of advances in the field of law. As part of our exclusive Oxford law event, Unlock Oxford Law, we have asked some of our expert authors to identify what developments they thought were most significant. With constant changes and developments occurring across all the different areas of law, this is a subject that is very much up for debate. Read on to see what our authors said, and to see if you agree.
“The coming of the Criminal Procedure Rules and now the Criminal Practice Direction has effected a huge change in the practice of criminal law. Previously there was little assistance in knowing what requirements had to be met. The Rules introduced the overriding objective to the Criminal Justice System, the need to see all cases tried justly, with a series of defined criteria to achieve that objective.
“This now underlies all applications to the courts. With the rules come a series of prescribed forms that ensure that the correct information is provided. The Criminal Practice Direction is indexed in the same way as the rules, so that by reading the two together all the required guidance is available.
“Whilst this means a great deal of reading is often required, it ensures that a full understanding of the courts’ requirements is available. Most recently, in relation to expert evidence, where the Law Commission recommended changes to the law that the government was not willing to introduce by statute, the Criminal Procedure Rules Committee has introduced new rule 33 to address the issues identified. Linked to the Practice Direction 33, this has enabled all the issues raised by the Law Commission to be dealt with. The Leveson Report on efficiency in the Criminal Justice System has recommended further changes to the Criminal Procedure Rules to bring the recommendations of that report into effect.”
— Anthony Edwards is a Senior Partner of TV Edwards and a duty solicitor. He is the author of Blackstone’s Magistrates’ Court Handbook 2015.
“The most important advance is probably the much greater availability of tools to understand that firstly, IP alone is not an innovation policy, and secondly, IP rules and standards must be customized to the needs of each region or country, a process I have called calibration. Taking into account available resources, the strengths and weaknesses of the local industrial base, higher education options, and several other factors, including what one might call cultural aspects, each government must tailor IP rules as part of a broader picture to achieve better domestic innovation and access outcomes.
“The most important advance is probably the much greater availability of tools to understand that firstly, IP alone is not an innovation policy”
“The aim is not just to comply with international obligations such as those contained in the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement. This led many countries to re-implement TRIPS in a variety of ways, using the so-called flexibilities contained in the Agreement. Multinational enterprises prefer a more harmonized environment, partly because it facilitates and reduces the costs of expanding business to new markets. They have not been happy about the increasing diversity in IP rules resulting from the ongoing calibration process and have tried to limit the use of flexibilities, particularly through trade agreements such as Anti-Counterfeiting Trade Agreement (ACTA), Trans-Pacific Partnership (TPP), and Transatlantic Trade and Investment Partnership (TTIP). Here, again, a proper balance must be found.”
— Daniel Gervais is Professor of Law, Director of the Intellectual Property Program, Vanderbilt University Law School and author of Intellectual Property, Trade and Development.
“Two cases, loosely related to religion and decided in different jurisdictions, present interpretations that fail to grasp crucial societal developments. In Hobby Lobby v. Burwell, the Supreme Court of the United States held that the contraceptive mandate in the Patient Protection and Affordable Care Act violated the Religious Freedom Restoration Act because it substantially burdens the religious beliefs of the three closely held corporations. Beyond the fantastic—in a literal sense—interpretation that for-profit corporations can exercise religion, the judgment has important implications for employees’ reproductive, health, and privacy rights. In SAS v. France, the European Court of Human Rights (ECtHR) held that French legislation that imposes a blanket ban on full-faced veils did not amount to a violation of religious freedom or privacy rights.
“One hopes that in the future courts will grasp that the ‘tyranny of the majority’ has reconstructed itself in the ‘tyranny of the powerful.’”
“Although the ban may result in curtailing women’s movements and confining them to their homes to avoid criminal sanctions, the ECtHR recognised France’s interference as a legitimate and proportionate one aimed at safeguarding the conditions of ‘living together’. On initial consideration, the two judgments result in opposing outcomes: SCOTUS sided with the (corporate) minority against the government of the United States, whereas the ECtHR sided with the majority represented by the French state against a (intersectional) minority. In a forthcoming article written with Stacy Cammarano, we are suggesting that the two cases are similar insofar as they prioritize the interests of the societally powerful and exacerbate the vulnerability of the vulnerable. One hopes that, in the future, courts will grasp that the ‘tyranny of the majority’ has reconstructed itself in the ‘tyranny of the powerful’ (be that a majority or a minority) and that such acknowledgment will inform their jurisprudential outcomes.”
— Ioana Cismas is a Lecturer in Law at University of Stirling and author of Religious Actors and International Law.
“The most important development in recent years is, perhaps somewhat counterintuitively, the ‘return to normality.’ What do I mean by that? A decade ago, and particularly one-and-a-half decades ago, an observer of international investment law could be struck by its seemingly unique aspects.
“The most important development in recent years is, perhaps somewhat counterintuitively, the ‘return to normality.’”
“For instance, the open offer of arbitration without privity to non-State actors; decentralised nature of arbitration and its impact on inconsistency of arbitral pronouncements; vagueness of substantive obligations and its impact on predictability of their interpretation and application; breadth and depth of substantive obligations and sensitivity of issues that their application may touch upon; the nearly exclusive focus on development of law by international Tribunals, with correspondingly limited role for States; and finally the sense that, despite the formal reciprocity of engagements, it was not quite the ‘done thing’ in systemic terms to have claims against developed States or interpret rules as imposing responsibility beyond liability under domestic law of developed States.”
Of course, I exaggerate and caricature often very thoughtful positions to make my point and few people would have held all of these views simultaneously–but it is still fair to say that there was a shared sense among practitioners, commentators, and critics that international investment law was in some way quite peculiar, even unique.”
— Martins Paparinskis is a lecturer at University College London and author of The International Minimum Standard and Fair and Equitable Treatment.
“In pension law, the most significant case in the last year is IBM Holdings Ltd v Dalgleish. The liability judgment is  EWHC 980 (Ch) and the remedies judgment is  EWHC 389(Ch). This is monster litigation generating two large judgments from Mr. Justice Warren in the last year. The case involved IBM using its powers, under an occupational pension scheme, to close the scheme to future defined benefit accrual, which is a common step taken by employers over the past few years. But in IBM’s case, this followed two other relatively recent changes to the pension scheme. Having heard a lot of evidence, Mr. Justice Warren ruled in April 2014 that the changes were contrary to the implied duty of trust and confidence. In February, Mr. Justice Warren gave a further judgment on the consequences of that breach.
“The Imperial Duty has long been known–the original case, applying the underlying employment law term, was in 1991. But cases on the duty have been rare–and there seemed to be a growing trend to find it a ‘severe’ test, with recent case law holding against a breach, so the decision in this case has come as a bit of a jolt.
“Warren confirmed much of the previous case law but still held against IBM. The breach is very fact-specific and depended quite a bit on the finding that IBM had (in its previous communications and recent changes to benefits) engendered “reasonable expectations” in the affected employees that their benefits would not be changed for a period without a very good reason. Further argument may still ensue in IBM and the employer looks likely to seek leave to appeal. This may be an extreme case that ultimately proves the rule.”
— David Pollard is a Partner at Freshfields Bruckhaus Deringer LLP and author of The Law of Pension Trusts.
Image Credit: “Once They Opened So Many Doors” by Viewminder. CC by 2.0 via Flickr.