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Insights into the Economic and Legal Dimensions of Public Contractual Relationships in Europe

December 5, 2019
By 27004

The aim of my doctoral dissertation research—carried out with the support of a Sylff fellowship—is the examination of contracts concluded by the state and other public bodies in Europe. Particular attention is given to concessions and the interplay between various national legal traditions and the law of the European Union. My work focuses on the legal specificities of these contracts and seeks to understand important socioeconomic connections of this field of law, such as the different modes of the state’s involvement in the economy and the different ways public services are organized, and where the boundaries between the state and market are set. In the following, I would like to give a brief introduction to this topic.

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In the evolution of the law of public contracts at the national and European level, the organization of public services has always played an important part.

Many services that are now considered public services first appeared as private initiatives. As capitalism developed, urbanization and population growth resulted in an ever-increasing number of tasks that public administrations needed to organize for the smooth functioning of society. The state’s involvement in the economy became more active in the first half of the twentieth century owing to two world wars, economic crises, the growing need for public services, and the bankruptcy of private-sector service providers. As welfare states flourished in Europe in the 1960s and the first half of the 1970s, the provision of public services came to be carried out mainly in the public sphere, either by state bodies, local authorities, or by organizations closely related to them.[1]

The Chain Bridge, one of the iconic monuments of Budapest, Hungary, is an example of a private initiative taking the lead in building public infrastructure in the nineteenth century. Its construction was funded and carried out by the Chain Bridge Joint Stock Company, owned by private shareholders. (Photo by Gyurika, CC-BY-SA-2.5, https://commons.wikimedia.org/wiki/File:Lanchid-budaipiller.jpg)

Challenges to the concept of the European welfare state emerged in the 1970s, as the oil crises of 1973 and 1979 triggered a new way of thinking about economic policy. The organization of public services according to market principles, outsourcing, and the involvement of the private sector became widespread, accompanied, in certain cases, by the privatization of assets serving as the basis of a public service. An important factor encouraging these processes was the law of the European Union. The most intensive period of regulation in the European Union to build up an internal market of undistorted competition started in the early the 1990s. An important part of this was the liberalization of network-based public services and the regulation of public procurement, which became more detailed and effective through the adoption of new directives.[2]

The reform of public services and the growing importance of contracting out became a general trend in Europe, but they unfolded differently in the individual member states of the EU, influenced by the respective traditional approaches to delivering public services.

In Germany, public services of an economic nature are traditionally provided by so-called Stadtwerke. These are companies of local authorities (earlier organized also by public law) that provide the population of a geographical area with different utilities. In the field of social services, cooperations of charitable organizations were a traditional form of service provision. The trend of privatization has affected these long-established structures, and private operators now play an important role in the delivery of public services. As a result of EU-led liberalization, these markets also had to be opened up to competition—or at least adjusted to a competition-driven legal system. However, certain sensitive areas, such as water supply and ambulance services, were protected by public policy from the encroachment of market forces by the EU.

Unlike Germany, France did not develop a strong utilities’ sector at the local level. The system of French local authorities was very fragmented, and their scarce resources encouraged the delegation of public services—mainly in the form of concessions—to private providers from as early as the middle of the nineteenth century.[3] The French state’s interference in the economy was particularly strong after World War II; extensive nationalization took place ,which largely affected the utilities, but state involvement was significant even in the competitive parts of industry and in the banking and insurance sectors.[4] Due to this composition of public property and the historic guiding theory of service public in public administration, the privatization of the 1980s and 1990s affected primarily the competitive sectors of the economy, not the utilities. The French constitution of 1946 expressly stated that monopolies and companies providing national public services and the assets necessary to run these services must remain state property.[5] A characteristic of the French model is that the utilities market is dominated by a few large companies, which are also important participants in the EU-wide market of service concessions.

The Channel Tunnel links Great Britain with continental Europe. The infrastructure project, negotiated in the middle of the 1980s, was a pioneer of large-scale, concession-type contracts using the project finance technique relying on the proceeds of the project. (Photo by Florian Févre from Mobilys, CC BY-SA 4.0, https://en.wikipedia.org/wiki/File:TGV_TMST_3011-2_-_Sortie_Tunnel_sous_la_Manche_%C3%A0_Coquelles.jpg)

In Britain, the common law legal system (which follows a different concept than the legal systems of continental Europe) evolved in parallel with another type of economic development. From the outset, capitalism developed with much less state involvement than in Germany or France. Margaret Thatcher, who became prime minister in 1979, was a pioneer of a neoliberal economic policy. She implemented reforms to achieve a more economic and effective public sector, encouraging contracting-out, private-sector involvement in public projects, privatization, and the liberalization of monopolies in utilities. The British administration also developed innovative legal concepts like unbundling and public-private partnerships (PPPs) that later spread to the rest of Europe and beyond.

Nowadays, EU law has a decisive impact on how member states can organize public services. Although there is undoubtedly a push toward more competition and privatization, there are also elements of EU law that try to seek a balance between the principle of undistorted competition and the will of member states to preserve their ability to decide on the most appropriate way to provide public services with different degrees of state involvement and to protect certain traditional elements of their systems.

The Law of Public Contracts

The law governing the contracts of public bodies is also shaped by changing economic circumstances, the increasing recourse to contracting-out, and the impact of EU law. There is a general trend towards unification, mainly deriving from EU public procurement law, whose focus is to sustain undistorted competition in public purchases through transparent procedural rules. But this process also accommodates different legal traditions in national laws.

PPP contracts were widely used from the 1990s to develop different types of public infrastructure, such as motorways. However, there were always concerns whether PPPs could deliver value for money for the public sector. (Photo by Kroock74, CC BY-SA 3.0, https://commons.wikimedia.org/wiki/File:Toll_booths_in_the_UK.jpg)

The most developed legal tradition relating to public contracts can be found in the French legal system in the concept of administrative contracts. What sets this legal regime apart is that contract rules of public authorities must also reflect the public interest and guarantee the proper functioning of public services. Administrative contracts form a distinct category apart from private law contracts, and legal disputes relating to them fall within the jurisdiction of administrative courts. Special rules are applicable to these contracts besides the underlying law of the French Civil Code. The main feature of administrative contracts is that the parties to the contract are not in an equal position and that the law acknowledges certain prerogatives for public authorities (e.g., a unilateral power of modification in case it is so required in the light of the public interest). However, the rules of administrative contracts must also fairly protect the interests of the contracting party by sustaining the economic balance in case of unforeseen circumstances and by compensating the private party in case the administration exercises its special rights.

The German legal system has traditionally been based on a strict distinction between private and public law. Its main approach to the contracts of public authorities is that public administration is also subject to private law when it takes part in economic relationships. This way of thinking has not impeded the acknowledgement of certain specificities of public contracts in connection with the public interest. The emphasis in German law is on the requirement that public authorities give due consideration to human rights even if they are acting under contract. In order to apply public law requirements to private law contracts, German courts incorporated these public law principles into general private law clauses. This solution of taking into account public principles in the interpretation of private law is called Verwaltungsprivatrecht in legal literature.[6]

One difference we can observe in English law is that its evolution is much more based on the needs arising from private economic activity than in continental contract laws. In the system of common law, it follows from the principle of the rule of law that the same law applies to both the state and private parties when they take part in economic relationships. As a result, even the existence of administrative law was recognized much later in England than in Germany or France. The specificities of public contracts appear in the principles elaborated by the courts and in codified laws, but there is no general legal concept or theory on how the public interest is considered in relation to public contracts.  

In spite of the conceptual divergences, common features can also be observed in the main European legal systems.[7] These elements all relate to the public interest and represent two main aspects of public contracts. On the one hand, public bodies need more freedom to act in order to decide on public matters and keep their competence to act as the public interest requires. However, when public interest warrants a derogation from contractual obligations, the private party must be compensated fairly. On the other hand, the administration cannot circumvent its public law obligations—such as respect for human rights—even if it acts in accordance with contractual provisions.

EU law also affects significantly how the traditional principles of public contracts can be applied in the member states. It is possible to maintain different approaches to public contracts in individual legal systems, but their special points of view can only apply within the boundaries set by EU law.

 

[1] Hellmut Wollmann and Gérard Marcou, “Introduction,” in Wollmann and Marcou (eds), The Provision of Public Services in Europe: Between State, Local Government and Market, Edward Elgar Publishing, Cheltenham, 2010, p. 5.

[2] Council Directive 89/440/EEC of July 18, 1989, amending Directive 71/305/EEC concerning the coordination of procedures for the award of public works contracts; Council Directive 88/295/EEC of March 22, 1988, amending Directive 77/62/EEC relating to the coordination of procedures on the award of public supply contracts and repealing certain provisions of Directive 80/767/EEC; Council Directive 92/50/EEC of June 18, 1992, relating to the coordination of procedures for the award of public service contracts; Council Directive 93/36/EEC of June 14, 1993, coordinating procedures for the award of public supply contracts; Council Directive 93/37/EEC of June 14, 1993, concerning the coordination of procedures for the award of public works contracts; Council Directive 93/38/EEC of June 14, 1993, coordinating the procurement procedures of entities operating in the water, energy, transport, and telecommunications sectors.

[3] Attila Harmathy, Szerződés, közigazgatás, gazdaságirányítás, Akadémiai Kiadó, Budapest, 1983, p. 29.

[4] For a detailed account of the different approaches to public ownership in the economy after 1945, see Leigh Hancher, “The Public Sector as Object and Instrument of Economic Policy,” in Terence Daintith (ed), Law as an Instrument of Economic Policy: Comparative and Critical Approaches, Walter de Gruyter, Berlin, 1987, pp. 165–236. 

[5] Ninth paragraph in the preamble of the Constitution of 1946: “Tout bien, toute entreprise, dont l’exploitation a ou acquiert les caractères d’un service public national ou d’un monopole de fait, doit devenir la propriété de la collectivité.”

[6] For a comprehensive analysis of Verwaltungsprivatrecht, see Ulrich Stelkens, Verwaltungsprivatrecht—Zur Privatrechtsbindung der Verwaltung, deren Reichweite und Konsequenzen, Duncker & Humblot, 2005.

[7] See also Rozen Noguellou and Ulrich Stelkens (eds), Droit Comparé des Contrats Publics / Comparative Law on Public Contracts, Bruylant, 2010.

Gender-Based Violence: Rethinking Social, Legal, and Healthcare Services in Jordan

November 1, 2019
By 25271

In Jordan, legal reforms have been promoted to achieve gender equality, which have led to improvements in female participation in education. However, there is still a big gap to achieving women’s empowerment in a practical sense, as cultural and religious norms encouraging gender inequality prevail in the society. The norms prevent women from social and political participation and even justify gender-based violence toward women. Dr. Tayseer Abu Odeh, a 2007 Sylff fellow at the University of Jordan, held a conference on July 16, 2019, at the University of Jordan to tackle the social issue by rethinking social, legal, and healthcare services. The conference was funded by Sylff Leadership Initiatives (SLI).

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Background and Objectives

It is my great pleasure to say that this conference was the first one organized in the Middle East by Sylff Leadership Initiatives, as one of the substantial and key conferences that seek to point to future directions in the field of gender studies and gender-based violence in Jordan. The conference is intended to address and examine the very implications of the term gender-based violence, which is defined in Guidelines for Integrating Gender-Based Violence Interventions in Humanitarian Actions (Inter Agency Standing Committee, 2015) as follows: “any harmful act that is perpetrated against a person’s will and that is based on socially ascribed (i.e. gender) differences between males and females. It includes acts that inflict physical, sexual or mental harm or suffering, threats of such acts, coercion, and other deprivations of liberty. These acts occur in public and in private.” With that in mind, this conference aims at addressing gender-based violence by assessing and rethinking social, legal, and healthcare services in Jordan.

The conference was held on July 16, 2019, at the University of Jordan.


According to a study conducted in 2015 and published in 2016 by United Nations Women titled “Strengthening the Jordanian Justice Sector’s Response to Cases of Violence against Women,” only 3% of victims of gender-based violence in Jordan seek official support from the police after being traumatized by any act of violence. Similarly, National Council for Family Affairs conducted an important report titled “Status of Violence against Women in Jordan” in 2008. It indicates that National Forensic Medicine Center in Jordan “deals with an average of 700 cases of sexual assault against women annually” and that “the number of murdered women recorded was 120 in 2006, including 18 cases classified as crimes of honor.” Ironically, the actual cases of physical and emotional abuse outnumber these statistics for many sociopolitical and cultural reasons. As a tribal and conservative society, many Jordanian families do not report these cases to protect their superego and collective image at the expense of the victim’s individual trauma.

 

The audience consisted of people from all walks of life.


Opening Remarks

Dr. Abeer Dababneh, director of the Center for Women’s Studies at the University of Jordan, opened the conference by stressing the significance of the event in raising the bar of social and gender consciousness in Jordan in terms of the available services offered by the three major sectors in Jordan: law, justice, and social development.

The president of the University of Jordan, Dr. Abdul-Karim Al Qudah, delivered a speech on how the University of Jordan plays a crucial role in empowering women and giving them a space for sociopolitical representation. He argued that the university is meant to be a feminist and intellectual hub for women’s equality, justice, and creativity, where many female students and teachers have a local and global reach and outshine their counterparts in every field of knowledge.

Moreover, Justice Minister Bassam Talhouni placed an emphasis on the significant role being played by the Ministry of Justice to fight a number of structural obstacles that confine and hinder gender equality. Although Jordan has witnessed some degree of local progress on gender issues, gender-based violence in Jordan is still a serious issue that should be resisted by national institutions at all levels.

Opening remarks.


Conference

The conference held on July 16, 2019, at the University of Jordan sought to develop and implement a more dynamic and practical strategy and method to protect Jordanian survivors who have been repeatedly traumatized by gender-based violence. Accordingly, the conference consisted of four panels:
Panel 1. Legal and Justice Services in Jordan
Panel 2. The Role of National, International, and Civil Society in Jordan
Panel 3. Gender-Based Violence in the Healthcare Sector
Panel 4. Gender-Based Violence in the Social Development Sector

In the first panel, all panelists stressed the way in which the sociocultural and legal contexts impact the whole process of gender-based prosecution in Jordan. The panelists also addressed how the Family Protection Program and other government institutions facilitate legal services for gender-based violence survivors. Meanwhile, they also underscored the limitations of these institutions and how such limitations should be treated locally.

The second panel was premised on the role of national, international, and civil society in Jordan. The panelists highlighted the significant role played by the National Council for Family Affairs and other government and nongovernment institutions vis-à-vis the multiple family protection projects in Jordan. They also emphasized the urgent need to revise the legal system and the alternative ways that this could be carried out to strengthen cooperation between these institutions toward fighting gender-based-violence in Jordan. In a similar vein, the third panel examined the multiple healthcare services offered by the Ministry of Health for victimized women in Jordan. Furthermore, the panelists concretely addressed the cultural and institutional flaws that hinder the process of fighting violence against women in Jordan. The panelists of the last session attempted to explore the way in which the social development sector engages in several rehabilitative counseling programs by training legal employees who are in charge of gender-based violence cases in Jordan. The panelists shed light on the psychological and professional competence of public employees.

 

The second panel, “The Role of National, International, and Civil Society in Jordan Legal and Justice Services in Jordan.”


Open Discussion

Each panel had an open discussion, in which many members of the audience gave compelling and engaging questions and remarks on gender-based violence in Jordan. For instance, an Egyptian activist attempted to challenge the dominant cultural paradigms of gender duties and roles that have been dogmatized and maintained by religion, government, and culture in Jordan. Another graduate student of gender studies was curious to understand the cultural and institutional circumstances that have shaped gender trouble in Jordan. Dr. Tayseer Abu Odeh, the organizer of the conference, responded to this question by arguing that gender trouble emanates from the cultural and social dogma of stereotypes and some religious misinterpretations that deem gender roles as being fixed and unchangeable. Thus, these dogmatic gender roles should be dismantled and challenged by reforming educational pedagogy, incorporating the most up-to-date research findings on gender studies into educational curricula in terms of the cultural and political context of gender-based violence in Jordan, gender equality, and statistical cases.


Final Recommendations Suggested by Participants

The participants agreed on a set of feasible and compelling recommendations that meet the most pressing issues of gender-based violence in Jordan. The media, for instance, should play a crucial role in sustaining and disseminating a profound discourse that offers a counternarrative to gender-based violence that should include updated statistics on all acts of gender-based violence in Jordan, hosting influential feminists to discuss major issues of gender-based violence, and evaluating the kinds of services offered by the three sectors of healthcare, justice and police, and social development. Similarly, the Ministry of Higher Education should be obliged to incorporate a new course on gender-based violence through which university students will be exposed to a wealth of legal, cultural, and epistemological knowledge on gender-based violence in Jordan regarding the discursive quantitative and qualitative circumstances that motivate any act of violence against women in Jordan. Moreover, the panelists stressed the significance of creating a professional national monitoring system through which the risk of gender-based violence in Jordan could be identified and assessed. Several panelists suggested a vibrant institutional and legal collaboration among all government and nongovernmental organizations that are in charge of survivors and victimizers of gender-based violence.

Dr. Tayseer Abu Odeh also stressed the importance of establishing a research database that would function as a professional research platform encompassing all reports, documents, and stories that address and document gender-based violence and assess national services in Jordan. A number of panelists argued that founding a national counseling office for gender-based violence at all universities should be a national priority. Drawing on the agenda of this conference, some of the scholars recommended outlining and endorsing a national manifesto agreed upon by all governmental and nongovernmental institutions that are in charge of fighting gender-based violence in Jordan. It would be a national and academic manifesto that legislates and outlines the national and humanitarian roles, duties, authorities, and agendas among various national partners that are concerned with gender-based violence.


Conclusion

It has been noticed that the vision of gender-based violence held by the government and bureaucracy in Jordan is somewhat limited and dogmatic. Several participants standing for government institutions were obsessed with a discourse of denial in which their findings seemed to underestimate the serious risk of gender-based violence in Jordan. Conversely, independent scholars and gender activists and leaders expressed an opposing view that challenges the one suggested by government representatives. With that in mind, a number of panelists suggested putting forward and organizing another forum in the near future that would reexamine gender-based violence in Jordan from a radical sociopolitical perspective. Drawing on Lila Abu-Lughod’s feminist paradigm, our anticipated conference would be mainly premised on the intersections between globalism, gender politics, and the political economy.

The conference caught the attention of many international and national feminists, scholars, lawyers, activists, senators, officials, policy makers, and academics. It also drew considerable interest from the media in Jordan. The conference was covered by the most influential and popular Jordanian media outlets that include, but are not limited to, the Jordan Times, Petra News Agency, Alrai, Addustour, Alghad, and the University of Jordan’s website. All media reports released on the conference noted the significance of the conference in fighting all forms of gender-based violence in Jordan.

Taking the major proceedings and recommendations of the conference into account, I would argue that gender-based violence in Jordan is still a serious sociopolitical and cultural problem that should be faced and resisted by all levels of the private and public sectors. In a nutshell, there should be a substantial strategic collaboration between all government and nongovernmental institutions. With that in mind, in my capacity as a Jordanian writer, activist, and intellectual, I am determined to keep fighting this crisis in every possible way and exert tremendous efforts to raise cultural and social consciousness about gender-based violence in Jordan. 

 

Dr. Tayseer Abu Odeh, an organizer of the conference.


References

“Strengthening the Jordanian Justice Sector’s Response to Cases of Violence against Women,” United Nations Women, 2016.


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Detailed arguments made in the panels are summarized below.

Panel 1: Legal and Justice Services in Jordan

The first panel of the conference was titled “Legal and Justice Services in Jordan.” Asma Khader, a leading human rights lawyer and former minister of culture, addressed the way in which gender-based prosecution is carried out in Jordan. Khader shed light on the social, cultural, and legal contexts of juridical prosecution in Jordan. Khader argued that many prosecutors who are in charge of gender-based violence cases and the implementation of the legal system lack sufficient legal, sociopolitical, and cultural literacy and professional training.

The second speaker, Reem Abu Hassan, a leading human rights lawyer and former minister of social development, discussed gender violence from a legal perspective. Drawing on her perspective, Abu Hassan also contended that cultural and social stereotypes are considered to be one of the most pressing issues that have shaped the various structures of gender trouble in Jordan.

The third speaker of this panel was Fakhri al Qatarneh, director of the Family Protection Program. Qatarneh examined the role of the program in facilitating the multiple services that are offered for gender-based violence survivors in Jordan. Unlike Khader and Abu Hassan, Qatarneh argued that the increasing number of complaints that have been recently reported to the Family Protection Program is an indicator of people’s awareness of gender-based violence in Jordan. Qatarneh’s argument sounded somewhat contradictory, as it confirmed an ideological discourse of denial that has been sustained by government officials whenever they address gender-based violence in Jordan.

Panel 2: The Role of National, International, and Civil Society in Jordan

The second panel addressed the role of national, international, and civil society in reinforcing sufficient and effective services that have to do with gender-based violence in Jordan. The first speaker was Yara Al Deer, a researcher at the Arab State Regional Office of the United Nations Population Fund. Al Deer pointed out that national and local institutions of healthcare, justice, and social development sectors should collaborate and cooperate more effectively to implement a range of feasible procedures of social, psychological, and legal support for survivors.

The second speaker, Dr. Mohammad Fakhri Meqdady, secretary general of the National Council for Family Affairs in Amman, highlighted the role of the NCFA in fighting gender-based violence in Jordan in light of various social and political transformations. Meqdady noted that a family protection project was initiated to protect a large number of survivors in Jordan. He also stressed the importance of collaboration among government and nongovernmental institutions that fight gender-based violence in Jordan from statistical, procedural, and legal perspectives.

Dr. Salma Nims was the third speaker of this panel. She is secretary general of the Jordanian National Commission for Women in Jordan. She addressed the dynamic and vital way in which the political and social roles of the Jordanian National Commission for Women are played. According to Al Nims, the commission is in charge of the following responsibilities: ensuring a convenient and applicable environment, revising the legal system, opening up a powerful and face-to-face dialogue with the government, building up an effective dialogue with the civil society in order to agree on specific legal amendments and revisions, and enforcing an active form of cooperation among all government and nongovernmental institutions to fight gender violence in Jordan. Such a dynamic role, however, is diminishing due to lack of institutionalism and bureaucracy.  

Dr. Ibrhim Aqil, director of the Noor Al Hussein Center for Family Health Care, was the last speaker of this panel. Aqil explored how civil society can imagine and offer alternative and feasible services for survivors of gender-based violence in Jordan. Aqil juxtaposed the interplay between data of gender-based violence, getting access to these data, and the right to get adequate and efficient services. He also placed an emphasis on the indispensable nature of multiple services that should be offered for survivors. These services include protective, educational, legal, administrative, social, and psychological procedures.

Panel 3: Gender-Based Violence in the Healthcare Sector

The third panel was titled “Gender-Based Violence in the Healthcare Sector.” Dr. Malak Al Ouri, director of Women’s Healthcare in the Ministry of Health, examined the role of the Ministry of Health in the reinforcement of health services for traumatized women in Jordan. Al Ouri discussed how the family violence department plays a vital role in handling gender-based violence issues in Jordan. In addition, a number of professional committees have been initiated by the ministry to follow up on all cases of gender violence in Jordan and make sure that each case is reported and documented immediately and rigorously. However, there is a built-in flaw in the institutionalized and scholarly documentation of such kind of cases arising from governmental bureaucracy, cultural stigmatization, and lack of cooperation between government and nongovernmental institutions regarding gender-based violence.

Dr. Maha Darwish, an expert on gender-based violence with the United States Agency for International Development, also addressed alternative and feasible services to rehabilitate gender-based victimizers from a psychosocial perspective. Darwish suggested psychological procedures to rehabilitate victimizers and ensure a professional training program designated by the Ministry of Health and other local institutions. 

Panel 4: Gender-Based Violence in the Social Development Sector

Panel four was concerned with gender-based violence in the social development sector. Amer Hiasat, director of the Social Development Program in Amman, discussed the multiple ways in which social protection for gender-based victims is maintained and carried out by the Ministry of Social Development. Hiasat asserted that the ministry has a crucial role in offering beneficial services for survivors of gender-based violence in Jordan. Nevertheless, this role is still flawed due to multiple bureaucratic and institutional inconsistencies.

Meanwhile, Eva Abu Halawa, director of Mizan Organization for Women’s Rights, put forward a number of suggested methods that civil society should use to protect survivors of gender-based violence. She contended that raising gender consciousness among people is a national priority that should be taken into account in fighting gender-based violence in Jordan. She also suggested creating more specialized counseling departments for training legal prosecutors and employees who handle cases of gender-based violence.

The last speaker of this panel was Dr. Amal Al Awawdeh, a professor of gender studies at the Center for Women’s Studies, University of Jordan. She interrogated the professional and technical competence of government social specialists who are in charge of handling gender-based violence in Jordan. Her findings are premised on the lack of effective professionalism among government social specialists and how such a flaw impacts social and counseling intervention and protective programs that have been employed by the Ministry of Social Development.

To Unmake a Victim: Criteria for the Successful Social Reintegration of Human Trafficking Victims

April 3, 2018
By 24051

Rui Caria is a Sylff fellow currently enrolled in a master’s program at the University of Coimbra in Portugal. He is currently addressing research in the field of criminology, specifically victimization and social reintegration of human trafficking victims, which should be a legitimate policy to protect victims and prevent retrafficking.

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Introduction

I am currently doing my dissertation for a master’s in criminal law. The title is “The social reintegration of human trafficking victims,” a theme that deals not only with international and European criminal law, criminology, and victimology, but also shines the light on how criminal policy should be carried out in order to find a balance between victim protection and criminal prosecution.

The goal of my research is to advance a criminal law policy oriented by the idea of social reintegration of the victims, capable of harmonizing and bettering the different mechanisms of victim protection, while at the same time helping the fight against trafficking.

To reach this goal, I explore the current international legislation on human trafficking and compare policies from various countries to see which are most effective and which to avoid. I also explore the real circumstances of the victims to paint a clear picture of their vulnerability, followed by an examination of the different concepts of vulnerability in various legislations to see which one is the most suitable for policy making. To conclude, a proposal of a concept of social reintegration is advanced, as well as an attempt to justify its purpose in criminal policy, and a study of the various criteria that in my understanding contribute to its success.

 

What Is Human Trafficking?

The isolation of the victim. (Photo courtesy of Pexels.com)

Human trafficking is one of the most devastating crimes occurring in the international landscape, not only for the gravity of its offenses but also for the way it exploits the victims through their vulnerability. It is considered a crime against personal liberty, transforming human beings into things and using them as such.

According to international and European law—Article 3 of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (Palermo Protocol) of 2000, and Article 2 of the Directive 2011/36/EU—trafficking in human beings refers to the recruitment, transportation, transfer, harboring, or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power, or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person for the purpose of exploitation.

This exploitation includes the exploitation of the prostitution of others or other forms of sexual exploitation, forced labor or services, including begging, slavery or practices similar to slavery, servitude, exploitation of criminal activities, or the removal of organs.

The definition of what constitutes human trafficking is important to determine what actions fall under the scope of the crime, as well as which victims.

 

Victims and Their Vulnerability

The despair of the victim. (Photo courtesy of Pexels.com)

According to the European directive and the Palermo Protocol, a position of vulnerability means a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved. What, then, are some of the factors that contribute to the special vulnerability of human trafficking victims?

A brief criminological analysis will help us reach an understanding. By and large, human trafficking victims are people in situations of great economic struggle and social unbalance, originating from countries or regions that are both economically and socially debilitated. In the face of these circumstances, these people seek countries with better conditions where they might improve their lives, and it is with this idea that they fall in the trap of human trafficking.

Their being in a strange country or region is another factor of their vulnerability, for they lack knowledge of this new territory and suffer from geographical disorientation. Also, traffickers make them afraid of violence on themselves and their families. Another fear is that their community might find out about their activities in prostitution. Finally, a distrust of the local police and judicial authorities is fed by the traffickers that, along with the previous factors, leaves these people extremely dependent on them, which helps reinforce the control of their captors.

Various personal circumstances can contribute to the acceptance of their situation. Victims might have developed drug dependency during their stay in a foreign country, which makes them crave income so that they can satisfy their needs. They might also be economically indebted to their traffickers for having brought them to a new country, so that they need to work and suffer the exploitation to pay off that debt; this is a common stratagem among traffickers. Studies have shown that there are very reduced percentages of voluntary exercise of prostitution, indicating dark figures of exploitation in this area.

In light of these factors, Article 3 of the Palermo Protocol deems the consent of the victims irrelevant to excuse the criminal action when it is used in the context of this special vulnerability.

 

Social Reintegration as a Criminal Policy Goal

The shame of the victim. (Photo courtesy of Pexels.com)

It is this special vulnerability of the victims of human trafficking that, in our understanding, justifies the need for social reintegration, given the potential for prevention through this process. Before developing these justifications, we must define social reintegration: it is a process by which secondary victimization is maximally reduced throughout the victim’s journey before, during, and after criminal procedure, with the goal that they are not further victimized and, especially, that they are not retrafficked.

Secondary victimization, which social reintegration works to avoid, is a process by which, through complex selection and stigmatization by—but not only by—the judicial process and its entities, a person assumes the stereotype of a victim, suffering further victimization as a consequence of the way she regards her own identity. Human trafficking victims are very susceptible to this kind of process due to the stigmatization they suffer from their sexual work, the constant abuse from their traffickers, and their placement in the illegal market.

So, to sum up, the special vulnerability of the victims, whose factors we previously referred to, make victims more prone to stigmatization and mistreatment, which results in secondary victimization, therefore justifying the need for social reintegration. This is the humanistic or human rights approach aspect present in this process. The criminal law approach aspect, on the other hand, may manifest itself by justifying this minimization of secondary victimization as a form of prevention of future crimes. The logic we put behind this is the following: if social reintegration prevents secondary victimization, it prevents victims from being revictimized, mainly and ideally in the form of retrafficking; if it prevents them from being retrafficked, it prevents the crime of trafficking, for the object of this crime is the person itself.

We made the effort of emphasizing the two aspects of the process—the human rights approach and the criminal law approach—because these are the two opposing approaches represented in the policy making of human trafficking today: the first oriented towards the protection of victims and the recognition of their rights and the second towards border or migration control and criminal prosecution of the traffickers. We believe that by incorporating both these approaches in its goals, social reintegration can be a balanced criminal policy, taking into account the protection of vulnerable victims and the fight against the crime that exploits them.

We perceive this social reintegration not as a mere post-interventive response to crime, as it is often thought, but as a holistic process that is present before, during, and after criminal procedure and therefore dependent on various criteria for its success. For it to be successful, we believe there must be: a well-defined and useful concept of trafficking of human beings, mainly with regard to the position of vulnerability; a successful identification of the victims so they can benefit from the protection allowed to them by criminal procedure; mechanisms of protection integrated into criminal procedure that reduce the degrading effect it tends to have on the victims, allowing for their protection, legal assistance, and support, without demanding their cooperation in the prosecution; realistic and well-adjusted criteria in regard to the return, or not, of the victims to their country of origin, as well as defined obligations for the states regarding the matter of repatriation.

It is a difficult process, with many variables dependent on making it successful and many in need of improvement. However, I believe that through a good understanding of the real circumstances of the victims and effort on the improvement of international criminal policy to humanistic ideas of protection, there is way to unmake trafficking by unmaking the victims.

 

Own Fate: Self-Managing the Future―How to Link Academic Knowledge and Local Practice

January 5, 2018
By 19685

On September 8 and 9, 2017, five Sylff fellows organized an event aimed at promoting sustainable development in Hungary: Professor Eva Kiss, Dr. Andrea Kunsagi, Dr. Viktoria Ferenc, Dr. Viktor Oliver Lorincz, and Dr. Loretta Huszak. Mari Suzuki, director for leadership development of the Tokyo Foundation, attended the two-day event as a representative of the Sylff Association secretariat to support the fellows’ initiatives. The event was significant in that many participants as well as speakers consisted of past and current Sylff fellows. This opportunity served not only to encourage cooperation between academics and local practitioners in Hungary but also to strengthen the bonds among Sylff fellows in Hungary.

***

The Role of Bottom-Up Local Initiatives in Sustainable Development

A round-table discussion during the event, titled “Sustainability Initiated ‘Bottom-Up’: Is It Possible?” The participants are (from left to right): Zsolt Molnar, Andras Jakab, Balazs Hamori, Eva Deak, and Andras Takacs-Santa.

A round-table discussion during the event, titled “Sustainability Initiated ‘Bottom-Up’: Is It Possible?” The participants are (from left to right): Zsolt Molnar, Andras Jakab, Balazs Hamori, Eva Deak, and Andras Takacs-Santa.

Economically and ecologically sustainable development has become a universal concern. It merits the attention and action of all of us. Hungarian fellows of the Ryoichi Sasakawa Young Leaders Fellowship Fund (Sylff) have realized that efforts are needed on a variety of fronts to promote sustainable development. Local and bottom-up initiatives have significant impact and are indispensable for sustainable development. Accordingly, more attention should be paid to them.

Post-communist civil societies, like the one in Hungary, are characterized by a lower level of participation in bottom-up initiatives by ordinary citizens.[1] Nonetheless, recent academic literature indicates that an increasing number of municipalities in Hungary possess local strategies for sustainable development or support initiatives related to sustainability.[2] These initiatives are designed to use and develop the municipalities’ own resources and internal potential to change society for the better.

The focus of the two-day Sylff event was on analyzing how imperative local bottom-up initiatives are to the economic, social, cultural, political, and legal development of modern societies and understanding how their sustainable development can be ensured and observed in Hungary. The first day was dedicated to academic analysis of the above themes, and the second day was a field trip to Szigetmonostor—one of the most active municipalities in Hungary, where the local administration is very much engaged in cooperation with grassroots initiatives. The object of the initiative was to facilitate a bottom-up dialogue between academics and local leaders and initiators. The chief patron of the event was Laszlo Lovasz, president of the Hungarian Academy of Sciences.[3]

Conference Day at the Hungarian Academy of Sciences

 The first day of the initiative was an interdisciplinary forum, which took place at the Hungarian Academy of Sciences in Budapest. It was dedicated to the academic analysis of sustainability and to the scientific elaboration of the role of bottom-up local initiatives in sustainable development. After the opening addresses, Andras Takacs-Santa, program director at Eötvös Loránd University Budapest, gave an opening lecture on “The need for a protective science in the light of the ecological crisis.”[4] He pointed out that the imperative of sustainable development is forcing us to think in new ways but that the way to an ecologically sustainable future is not at all yet clear. Human ecology and the sustainable way of thinking about the Earth’s resources should “run out in all directions” and find their path to the Hungarian Academy of Sciences too.

Section 1 of the forum focused on “the spatial dimensions of sustainable development” with five presentations. The well-prepared speakers approached sustainability from different aspects - environmental, economic, and social - and on diverse spatial levels. They dealt with different parts of the world, from the regional to micro level: China, the Carpathian Basin, Visegrad countries, the South-Bekes microregion, and underdeveloped regions of Hungary. Taken as a whole, the presentations significantly contributed to the success of the conference and to a better understanding of the processes of sustainability on different spatial levels. After the presentations, there was a lively discussion in which the audience raised several questions.

Section 2 analyzed “the successes and anomalies in communication and their role in community generating, business, and social life.” These aspects were investigated from psychological, marketing, management, and human-ecological collateral perspectives. The impact of people on their environment also prevails by numerous forms of manifestation in communication. Making public property from successes and anomalies in communication may help initiate more constructive societal, business, and grassroots movements and give these movements sustainability.

“The human dimension of biodiversity” was studied in section 3. Biodiversity can be found in both nature and culture. Our world is a living network made up of the millions of species of plants and animals and thousands of human cultures and languages that have developed over time. Languages, cultures, and ecosystems are interdependent. For humanity at large, the loss of cultural and linguistic diversity represents a drastic reduction of our collective human heritage. In this section, Sylff fellows discussed human communities that have special attributes in ethnic, linguistic, and cultural respects and whose existence is endangered. The topic is highly relevant in Europe as well as in the Hungarian context. The objective of the panel was to shed light on the importance of maintaining these communities and to link the knowledge represented by Sylff fellows to the practice of local actors and decision makers in Hungary.

Topping the presentation part of the forum was the legal section, which focused on “law and equity in a sustainable society.” Beyond environmental law, the question of sustainability also emerges in other domains of legal studies and political sciences, such as constitutional law, the institutional background of the protection of future generations, populism versus long-term policymaking, and the economic aspects of environmental damages and its legal consequences.

The conference day closed with a round-table discussion. Invited participants talked about the question of “sustainability initiated ‘bottom-up’: is it possible?” It was a valuable discussion, not only in that it summarized the main findings of the conference day but also because it brought together academia and municipalities with bottom-up local initiatives, as well as nongovernmental organizations, and raised expectations for the field trip that was to follow the next day. 

A key point of the conference day was that the presentations went beyond the speakers’ own research, adding aspects of sustainable economic development. They encouraged the audience to analyze the theme from broad perspectives and led to a successful forum, as audience members were able to understand the contents without specialized knowledge. The perspectives that were offered helped not only to identify research interests shared by the different disciplines but also to link academic knowledge with local practice.

Workshop Day in the Idyllic Village of Szigetmonostor

Discussion during the workshop in Szigetmonostor.

Discussion during the workshop in Szigetmonostor.

The field trip to Szigetmonostor was aimed at disseminating and applying academic knowledge to the field. To achieve these goals, academics—scientists employed by HAS (research institutions) and people employed by institutions of higher education—went to the field and experienced knowledge spillovers to the locals. Another aim was to heighten the awareness of local initiators about how academics can support and help their initiatives, thereby helping theoretical academic projects take on a more applied and realistic role; in other words, to help academic projects realize themselves in a more practical pragmatic environment.

The main reason for choosing Szigetmonostor was its isolation. Although the village is just 25 km from Budapest, it is difficult to access due to poor infrastructure; because there is no direct motorway, the only ways of reaching it are via a 50-km detour or by ferry.[5] This makes the village unique in its inhabitants’ reliance on one another. Given the natural beauty and environment of the place, which has been underdeveloped to date, it is an ideal spot to develop tourism. There is a need to create job opportunities within Szigetmonostor, as its geographic location makes it difficult for the locals to seek job opportunities in central Budapest.

Activities provided by Sylff fellows included raising awareness of the historical background of Szigetmonostor among the academic participants. Mayor Zsolt Molnar of Szigetmonostor elaborated on the current situation that the half-island was facing.[6] He gave his account at the dam, with the Danube and the city of Budapest visible in the background. This setting enhanced and inspired the visitors’ interest.

After this opening, the focus turned to local initiatives. Local initiators presented their activities and highlighted the key social challenges that they wanted to be tackled. A short group session followed, in which participants were divided into groups and had to identify possible solutions to local issues. These discussions were led by professional mediators as well as local experts. The idea was to find a common ground between the academics and locals to help with Szigetmonostor’s advancement in terms of tourism, education, local job creation, and so forth.

The group work was then followed by participants presenting new ideas and possible solutions to existing difficulties. The group activities provided a great platform for initiating future collaboration between the academics and local initiators.

Discussion during the Workshop in Szigetmonostor.

Hungarian Sylff fellows and locals in Szigetmonstor, with the newly planted Sylff tree in the background. Holding the plaque for the tree at center are Mariann Tarnoczy, who has been working with Sylff at the Hungarian Academy of Sciences since the program’s inception, and Mari Suzuki, director of leadership development at the Tokyo Foundation.

Hungarian Sylff fellows and locals in Szigetmonstor, with the newly planted Sylff tree in the background. Holding the plaque for the tree at center are Mariann Tarnoczy, who has been working with Sylff at the Hungarian Academy of Sciences since the program’s inception, and Mari Suzuki, director of leadership development at the Tokyo Foundation.

To mark Sylff’s contribution and its recognition for future collaboration, the group of workshop participants went out to a beautiful park built by the local volunteers, where they planted a South European flowering ash tree as a symbol for future collaboration. With the help of locals, the academics dug the ground and planted and watered the new tree.

Impact of the Initiative

The two-day event was well attended, which is an objective indicator of success. Eighty-one people attended the conference day, almost half of whom were Hungarian Sylff fellows. The workshop day in Szigetmonostor saw the participation of 45 academics and locals; the number of Sylff fellows was 12.

The initiative aspired to link academic knowledge and local practice. Analyzing sustainable local initiatives and their impact on society was a new activity field for most of the participants. The researchers who gave presentations had been invited to combine their actual research with this important topic. It was an experiment that made great demands of the presenters but led to unforeseen ties between researchers from different disciplines—to real-time interdisciplinary interactions. 

The initiative also had the aim of contributing to society. Understanding basic human ecology principles and the operation of local initiatives can help to map out and evaluate alternatives. The participants identified such principles and recognized new opportunities for cooperation between local initiators and academics. We hope that this future cooperation will lead to positive social change in such forms as increased citizens’ participation in local initiatives, better understanding of the significance of such initiatives among scholars, and more academic projects taking on advanced applied and realistic roles.

A well-informed public is crucial for sustainable development. The media can help reach a wider audience, inform local stakeholders, and direct attention to the role of local initiatives in Hungary’s sustainable economic development. The first report of the initiative has already been published; an article appeared in the local online newspaper of Szigetmonostor, informing local stakeholders about the event..[7]

The organizers of the initiative have prepared a special edition for Magyar Tudomany, the periodical of the Hungarian Academy of Sciences. All manuscripts are completed and should be published in the coming weeks. In addition, a seven-minute video on the initiative will be published soon on social media and Internet channels (YouTube and Facebook).

The main organizers of the event (from left to right): Viktoria Ferenc, Andrea Kunsagi, Eva Kiss, Loretta Huszak, and Viktor Lorincz.

The main organizers of the event (from left to right): Viktoria Ferenc, Andrea Kunsagi, Eva Kiss, Loretta Huszak, and Viktor Lorincz.

[1] Marc Marje Howard, The Weakness of Civil Society in Post-Communist Europe (Cambridge: Cambridge University Press, 2013), p. i.

[2] Henrietta Nagy, Tamas Toth, and Izabella Olah, “The Role of Local Markets in the Sustainable Economic Development of Hungarian Rural Areas,” Visegrad Journal on Bioeconomy and Sustainable Development, vol. 1, no. 1 (2012): pp. 27–31. https://vua.uniag.sk/sites/default/files/27-31.pdf

[3] For a list of elected chief officers of the Hungarian Academy of Sciences see:

 http://mta.hu/english/elected-chief-officers-of-mta-106110

[4] For further information on Andras Takacs-Santa visit: http://tatk.elte.hu/en/staff/TakacsSantaAndras

[5] Official website of the municipality: http://szigetmonostor.hu/ (in Hungarian)

[6] For further information on Zsolt Molnar visit: http://szigetmonostor.hu/index.php/onkormanyzat/polgarmester (in Hungarian)

[7] Loretta Huszak, “Az MTA kutatóinak és ösztöndíjasainak látogatása Szigetmonostoron,” Ujsagolo, vol. 23, no. 10 (October 2017): pp. 1, 10. http://szigetmonostor.hu/images/dokumentumok/ujsagolo/ujsagolo_2017_10.pdf

Internet Policymaking and the Case of Brazil’s Marco Civil

March 7, 2016
By 19622

Guy Hoskins, a Sylff fellow at York University, traveled to Brazil to study the implications of a new civil law on Internet freedoms with huge implications for privacy, freedom of expression, and network neutrality for Internet users around the world.

* * *

When the revelations made by former US government contractor Edward Snowden emerged regarding his country’s practice of dragnet surveillance of global digital communications, the repercussions were manifold. Some of the consequences, such as diplomatic tensions and a heightened public awareness of data privacy issues, could have been foreseen. Others, however, were much less predictable. One such outlier was the passing into law in Brazil of a bill called the Marco Civil da Internet (the Civil Framework for the Internet) enshrining a substantive set of civil rights for the country’s more than 100 million Internet users, built upon the three pillars of privacy, freedom of expression, and network neutrality. Having been subject to abandoned votes on 29 separate occasions in the country’s lower chamber, the success of this partially crowdsourced, multi-stakeholder policy document was far from assured. The public and executive outrage generated by news of the National Security Agency’s practice of intercepting sensitive Brazilian communications proved to be the tipping point. President Dilma Rousseff signed the bill into law on April 24, 2014.1

Within a global media environment marked by almost daily stories of government infiltration of digital communications, threats against the neutrality of the Internet by telecommunications companies seeking to impose a tiered system, and state and corporate suffocation of freedom of expression online, it is little wonder that a bill of online civil rights in one of the most populous countries on earth should attract the interest of the world. That story, at least for English-speaking audiences, has yet to be fully told. It is the purpose of my doctoral dissertation to address that shortfall. By undertaking a detailed analysis of the development of this world-first bill of rights for Internet users, my hope is that a viable framework can be developed for other countries to follow and to safeguard an Internet legislated according to civic logic. It is not enough to hold aloft the bill itself and point only to the provisions contained therein. In isolation they cannot provide a cogent and replicable model for the rest of the world if the means of their resolution are not properly chronicled and understood.

With an undergraduate degree in Latin American studies, fluency in Portuguese, and experience living and working in the region, I had always attempted to integrate developments in Latin America into my graduate research in communication studies. So when I first read reports about the Marco Civil at the outset of my doctoral studies, it was immediately clear that this would make an excellent object of study. I first traveled to Brazil in March 2014 on a preliminary fact-finding mission while the Marco Civil was still in development. I had the immense good fortune not only to establish a network of contacts among civil society organizations that were promoting the bill but also to be granted access to the Brazilian Congress on the evening of March 25, 2014, to bear witness to the historic successful vote.

Buoyed by these experiences, and with financial assistance from SRA, I planned a period of formal field research in Brazil to coincide with the one-year anniversary of that first vote in March 2015. My primary objective was to interview some of the main protagonists who had participated in the open contribution phase of the bill’s development initiated by the Ministry of Justice. These people represented some of the major stakeholders in the Brazilian Internet, including telecommunications corporations, government bureaucrats, members of Congress, civil society leaders, traditional media companies, and web service companies. In gathering firsthand testimony from these individuals, I sought to discover how different groups of social actors were guided by particular logics with regard to the future direction of the Internet—profit, state security, surveillance, civic engagement, innovation, etc.—and how these were tied to the social values of privacy, freedom of expression, and economic freedom that ultimately form the technical and legal operating environment of a national Internet.

Network neutrality has received much media and public attention in recent months as the subject of major regulatory decisions in the United States, India, and the European Union, as well as of course in Brazil. It was fascinating to observe how what might appear at first glance to be a rather arcane technical premise—that all the data that flows on the Internet must be treated equally without any attempt by network administrators to allow data from certain sources to travel faster than any other—was articulated and interpreted by the different stakeholders in the Marco Civil case.

Traditional media companies, dominated in Brazil by the ubiquitous Globo Group, saw net neutrality as a means to ensure mass access to their commercial content. Web companies interpreted it as a safeguard for innovative new online services. Telecommunications companies opposed it on the grounds that it would stifle the potential for new business models. Civil society organizations generally viewed the legislation as essential to both consumers’ rights to digital services and citizens’ rights to freedom of knowledge. Identifying and charting these diverse interpretations of one element of the technical architecture of the Internet can allow us to better understand why these details are so fiercely contested and to appreciate the deeply social process that underpins these apparently neutral technological considerations.

Another essential facet of the Marco Civil process that I was able to appreciate much better after speaking with my interviewees was the way in which the object of the policymaking process—the Internet itself—had influenced how the various groups were able to “operationalize” their agendas or logics. The Brazilian government’s use of an online consultation forum opened the bill to large-scale public scrutiny and input. This made the legislative project much more democratically legitimate—a fact that helped considerably to overcome partisan opposition in Congress. Civil society groups took advantage of the same mechanism to raise public awareness of the substantive issues under discussion while the telecommunications companies, with no little irony, were the group most disadvantaged by the transparency and ready coalition-building facilitated by the Internet and continued to pursue their traditional tactics of backroom lobbying rather than exposing rational arguments to the oxygen of (online) publicity.

I am now in the early phases of data analysis as I translate, transcribe, and codify the hours of interview footage I gathered during my fieldwork in Brazil. As I work, I seek the insights that will allow me to portray as accurately as possible how, in spite of a concentration of forces applying logics of profit and control online, “another Internet is possible” (Franklin, 20132)—one premised on safeguarding freedom of expression, data privacy, and network neutrality.

1http://www.newscientist.com/article/dn25467-brazils-internet-gets-groundbreaking-bill-of-rights.html
2Franklin, M.I. (2013) Digital Dilemmas: Power, Resistance and the Internet, Oxford: Oxford University Press.

Arbitration in Europe: Article 2 of the European Convention on International Commercial Arbitration

February 5, 2015
By 19692

Nērika Lizinska, a Sylff fellow at the University of Latvia, used her Sylff Research Abroad (SRA) award to research state participation in international commercial arbitration in 2014. She conducted her research at the Swiss Institute of Comparative Law. It was in Switzerland that the European Convention on International Commercial Arbitration—which plays a significant role on this issue—was signed. A summary of her research regarding Article 2 of the convention is presented below.

* * *

Introduction

Everything starts with an idea. Parties then enter into a commercial contract with the hope of profiting from it in an optimistic frame of mind. At this stage, unfortunately, not all parties think that a dispute might someday arise and that a mechanism would be needed to resolve it. However, international trade and commercial transactions are specific and linked to particular legal systems (which laws are to be applied and which court will hear the case, etc.), that need to be agreed upon between the parties in any contract.

Businesses mainly choose arbitration (arbitration is the “settlement of a dispute by the decision of a person or persons chosen and accepted as judges”)1 as a mechanism for dispute resolution, instead of litigation (litigation is “a formal process whereby claims are taken through court and conducted in public. Judgements are binding on the parties subject to rights of appeal” 2 ) due to its neutrality (parties can choose the seat of arbitration), flexibility (“parties may control the manner of the proceedings having regard to the nature of the dispute and to their precise needs”), 3finality (there is no appeal), confidentiality, and speed of resolution. “Parties in cross-border disputes may be unfamiliar with the complicated procedure of litigation and the language of the national court. . . . [M]ost businesses want a quick and efficient remedy and are reluctant to wait for an extended period for their disputes to be resolved through national courts.”4

Nowadays, it is internationally accepted that a state, too, can conclude international commercial contracts with a private party (for example, to purchase goods) and can choose arbitration as a dispute resolution mechanism by adding an arbitration clause in a commercial contract. This means that in the case a dispute that cannot be otherwise resolved between the parties (for example, by negotiation or mediation, which “is essentially a negotiation facilitated by a neutral third party”)5, a claimant can seek arbitration6 . Although a state can act like a private party and has similar rights, there are plenty of issues and risks for contracting parties. The main risk is that when a state becomes a contractual party, dispute resolution can take a considerably different course from general procedures. This is why the inclusion of an arbitration clause for a commercial party in such agreements has become a precondition for concluding a commercial contract with the state. The state, too, has many considerations in this regard.

History and Application

At the international level, a document governing the capacity of states to conclude arbitration agreements is the European Convention on International Commercial Arbitration7 (hereinafter called the European Convention), signed on April 21, 1961, in Geneva at a meeting convened by United Nations Economic Commission for Europe. More than 30 countries are currently party to the European Convention, including Cuba, Burkina Faso, the Russian Federation, and Turkey,8 which became contracting parties in accordance with the provisions of Article 10 (1) and (2) of the European Convention.

Provisions regarding the application of the European Convention are stated in Article 1 (1), according to which “this Convention shall apply: (a) to arbitration agreements9 concluded for the purpose of settling disputes arising from international trade between physical or legal persons having, when concluding the agreement, their habitual place of residence or their seat in different Contracting States; (b) to arbitral procedures and awards based on agreements referred to in paragraph 1 (a) above.” This means that if arbitration agreements concluded for the purpose of settling disputes arising from international trade between physical or legal persons having, when concluding the agreement, their habitual place of residence or their seat in countries that are not contracting states—such as the United Kingdom, the Netherlands, and Switzerland—the European Convention will not apply.

Historically, “the intention of the European Convention was to introduce the first uniform set of rules concerning international arbitration in order to remove the obstacles created by widely differing national arbitration laws. With its scope focusing on Europe, the aim was to facilitate and promote European trade between the (back then) Eastern and Western block.”10 “When the European Convention was signed, . . . Europe was still dominated by the East-West conflict. The different political and economic systems made trade between parties coming from the two blocks very difficult. Each side had little confidence in the courts of the other side with the consequence arbitration was often the only option for dispute settlement acceptable to all parties. . . . The main purpose of the European Convention was to overcome these psychological barriers and the legal problems which were affecting arbitration in the East-West trade in Europe.” 11In addition, it should be noted that “in certain countries that were to become Contracting States of the European Convention, public corporate bodies were not allowed to enter into arbitration agreements. This led the draftsmen of the European Convention to include Article 2 (1).”12

Right of States to Resort to Arbitration

With regard to the historical circumstances, Article 2 (1) of the European Convention states as follows: “. . . legal persons considered by the law which is applicable to them as ‘legal persons of public law’ have the right to conclude valid arbitration agreements.” The term “legal persons of public law” is used here instead of “state” in order to cover a broader scope of state institutions, such as state agencies, public entities, and governmental institutions.

There have often been cases in which the state argues that in accordance with its domestic laws, it is not entitled (lack of capacity issue) to enter into an arbitration agreement, thus an agreement, even if legally concluded, does not have legal force. There have also been cases where a state party concludes an agreement but then relies on its national (internal) law to prove that a contract is null and void, as its national law prohibits resorting to arbitration. For example, Article 2060 of the Civil Code of France prohibits French state public bodies and institutions from concluding arbitration agreements.13 Article 487 of the Latvian Civil Procedure Law states, “any civil dispute may be referred for resolution to an arbitration court, with the exception of a dispute: . . . 2) in which a party, albeit even one, is a State or local government institution or the award of the arbitration court may affect the rights of State or local government institutions.”14 In Hungary, Act CXCVI of 2011 on National Assets, which came into force on January 1, 2012, states in Article 17 (3) that “in civil law agreements concerning national assets located on the territory of Hungary, the governing language may only be Hungarian, the governing law may only be Hungarian and the jurisdiction for the settlement of disputes may only be that of the Hungarian state courts.” 15At the same time, for example, Article 177 (2) of the Swiss Private International Act contains advanced regulation stating, “if a party to the arbitration agreement is a state, a stateheld enterprise or a state owned organization, it cannot rely on its own law in order to contest its capacity to be a party to an arbitration or the arbitrability of a dispute covered by the arbitration agreement.”16

Belgium also has special regulations.17 In fact, Belgium was involved in one of the first cases18 in which the court had to decide whether a state can invoke its domestic laws to avoid arbitral jurisdiction. “Benteler v. Belgium provides further authority for the proposition that a commercial arbitration between a [s]tate and a private party cannot be avoided simply by the [s]tate’s invoking a prohibition in its own law against arbitration by the [s]tate.”19 After this ad hoc decision, Belgium chose to use its rights provided in Article 2 (2) of the European Convention.

Declarations

Article 2 (2) of the European Convention stipulates, “On signing, ratifying or acceding to this Convention any State shall be entitled to declare that it limits the above faculty to such conditions as may be stated in its declaration.” “The content of Article II met strong opposition from Civil Law countries where public entities are, generally, prohibited from resorting to arbitration. To accommodate these States, which otherwise would have not ratified the Convention, a second paragraph providing for the possibility of a reservation was added to Art. II.”20

One may say that to some extent the European Convention has reached the objective set out in its Preamble,21 because at the present time only Belgium has such a declaration, as provided for in Article 2 (2). After the Benteler v. Belgium case, Belgium stated that “in accordance with article II, paragraph 2, of the [European] Convention, the Belgian Government declares that in Belgium only the State has . . . the faculty to conclude arbitration agreements” 22to avoid similar cases in the future.

When Latvia ratified the European Convention, it also made a declaration in accordance with Article 2 (2). It stated that Latvian state and local government authorities have no right to conclude arbitration agreements. At a time when there were discussions and debates about the withdrawal of the declaration, one of the draft laws stipulated that “local government authorities before concluding the arbitration agreement shall transmit a draft to the Ministry of Environmental Protection and Regional Development to obtain opinion from the State Chancellery that the arbitration agreement is in conformity with the state interest.”23 Accordingly, if such a law were to be adopted, the State Chancellery would need to assess whether the arbitration clause included in international commercial contracts (between a local authority and a private party) is consistent with the public interest. The questions this gave rise to were, what is the state interest (common good), how to determine it, and is it possible only from the content of the arbitration agreement to determine whether the state interest will be protected?

On December 23, 2013, Latvia notified the Secretary General of the United Nations of its full withdrawal of the declaration under Article II (2), made upon accession in 2003. Accordingly, these fundamental changes can be considered a new page for Latvian state and local government authorities and practitioners to record their experiences in the history of international commercial arbitration and for scientific researchers to document new ideas and findings in the field of arbitration.

1A.S. Hornby & Ruse, Oxford ESL Dictionary, Oxford University Press, 1997, p. 30.
2Peter Fenn, Commercial Conflict Management and Dispute Resolution, Spon Press, 2012, p. 12.
3Ibid, p. 89.
4Sameer Sattar, “National Courts and International Arbitration: A Double-edged Sword?” Journal of International Arbitration, 27 (1), Kluwer Law International, 2010, pp. 51-52.
5What is mediation? Detailed information available at http://adr.findlaw.com/mediation/what-is-mediation-.html.
6State participation in international arbitration can be analyzed from various aspects, for example, whether arbitration as a dispute resolution mechanism is suitable for state contracts in general, is it possible to properly protect state interests in arbitration, and whether an arbitration clause in a state contract automatically implies a waiver of state immunity from jurisdiction and enforcement, etc.
7European Convention on International Commercial Arbitration, available at https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXII-2&chapter=22&lang=en.
8Full list of contracting states available at https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXII-2&chapter=22&lang=en.
9Article 1 (2) of the European Convention gives the following definitions: (a) the term “arbitration agreement” shall mean either an arbitral clause in a contract or an arbitration agreement being signed by the parties, or contained in an exchange of letters, telegrams, or in a communication by teleprinter and, in relations between States whose laws do not require that an arbitration agreement be made in writing, any arbitration agreement concluded in the form authorized by these laws; (b) as the term “arbitration” shall mean not only settlement by arbitrators appointed for each case (ad hoc arbitration) but also by permanent arbitral institutions; (c) the term “seat” shall mean the place of the situation of the establishment that has made the arbitration agreement.
10Alice Fremuth-Wolf, “Issues Specific to Arbitration in Europe: The European Convention on International Arbitration as a Tool to Remedy Pathological Arbitration Agreements—There’s Still Life in the Old Dog Yet!” in Chapter 1 of C. Klausegger, P. Klein, et.al. (eds.), Austrian Yearbook on International Arbitration 2013, pp. 60–61.
11Stefan Michael Kroll, “Issues Specific to Arbitration in Europe: The European Convention on International Commercial Arbitration—The Tale of a Sleeping Beauty,” in Chapter 1 of C. Klausegger, P.Klein, et al. (eds.), Austrian Yearbook on International Arbitration 2013, p. 3.
12Nikolaus Pitkowitz, “Issues Specific to Arbitration in Europe: Is There Still a Scope of Application of the European Convention on International Commercial Arbitration?” In Chapter 1 of C. Klausegger, P. Klein, et.al. (eds.), Austrian Yearbook on International Arbitration 2013, p. 106.
13Article 2060 of the Civil Code of France, Title XVI of Arbitration Agreements, states, “One may not enter into arbitration agreements in matters of status and capacity of the persons, in those relating to divorce and judicial separation or on controversies concerning public bodies and institutions and more generally in all matters in which public policy is concerned, (Act no 75-596 of 9 July 1975), however, categories of public institutions of an industrial or commercial character may be authorized by decree to enter into arbitration agreements,” available at http://www.legifrance.gouv.fr/Traductions/en-English/Legifrance-translations.
14Latvian Civil Procedure Law, Civilprocesa likums. 14th edition. Rīga: TNA, 2010.
15Gabor Bardos, “The Award and the Courts, Hungary: New Rules on Arbitration Related to National Assets” in Chapter 4 of C.Klausegger, P.Klein, et al. (eds), Austrian Yearbook on International Arbitration 2013, p. 181.
16Swiss Private International Law Act available at https://www.swissarbitration.org/sa/en/rules.php.
17See Article 1676.2 of Belgium Code Judiciaire, May 19, 1998, available at http://www.jus.uio.no/lm/belgium.code.judicature.1998/1676.2.html.
18Ad Hoc Award of November 18, 1983, Benteler v. Belgian State, Journal of International Arbitration, 1984, pp.184–90.
19Jan Paulsson, “May a State Invoke Its Internal Law to Repudiate Consent to International Commercial Arbitration? Reflections On the Benteler v. Belgium Preliminary Award,” Arbitration International, Vol. 2, No. 2 (1986), p. 95.
20Albert Jan Van Den Berg (general ed.), Yearbook Commercial Arbitration, Volume XX, 1995, Kluwer, p. 1017.
21The Preamble of the European Convention states as follows: “. . . desirous of promoting the development of European trade by, as far as possible, removing certain difficulties that may impede the organization and operation of international commercial arbitration in relations between physical or legal persons of different European countries, have agreed on the following provisions.”
22Declarations and reservations are available at https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXII-2&chapter=22&lang=en
23Draft law available in Latvian, “Grozījums likumā ‘Par Eiropas konvenciju par Starptautisko komercšķīrējtiesu,’” available at http://titania.saeima.lv/LIVS11/saeimalivs11.nsf/0/ED4CEB6E5CF3B1A5C22579A00044FB8C?.

Portland State Fellow Makes Presentation at Waseda University Conference

November 5, 2013

Bryan Matthew Thompson, a Sylff fellow from 2009 to 2010 at Portland State University, delivered a presentation at the 3rd International Conference on Government Performance Management and Leadership (www.icw2013.org) at Waseda University in Tokyo.

Bryan ThompsonThe conference was held on the theme of governance, leadership, and performance (“Accelerating Innovation in Government Performance through International Partnership”) and took place in September 2013 at the International Conference Center of Waseda University.

Bryan analyzed the controversial lay judge system in Japan that was launched in 2009, comparing it to the jury system in the United States and pointing out that the strict confidentiality restrictions in Japan may not be in tune with the democracy-enhancing aims of the system.

Bryan recently earned his juris doctor (JD) at Lewis and Clark Law School in Portland, Oregon (USA). He received a Sylff fellowship in 2009–10 and earned a master’s degree in political science from Portland State University in 2010.

Japan’s Ratification of the Rome Statute of the International Criminal Court

May 20, 2013
By 19657

Salla Garský,1 a Sylff fellow at the University of Helsinki, used her Sylff Research Abroad (SRA) award to research the process of Japan’s ratification of the Rome Statue of the International Criminal Court (ICC). She presents an objective explanation of why Japan’s ratification was prolonged until 2007 after voting for the Statue in 1998.

* * *

Salla Garský, in front of the Okuma Auditorium at Waseda University’s main campus.

Salla Garský, in front of the Okuma Auditorium at Waseda University’s main campus.

The Rome Statute creating the International Criminal Court (ICC) was adopted in 1998 by 120 countries, including Japan. Since 2002, when the Rome Statue came into force, the ICC has been a permanent and independent institution. Its establishment was a historical achievement that permanently conferred jurisdiction to punish the masterminds behind heinous crimes, including genocide, war crimes, crimes against humanity, and the crime of aggression. No one who commits these crimes will thus be able to escape the consequences.

However, the power of the ICC depends entirely on member states because it has no resources of its own to make arrests and is financed by the state parties. Therefore, it is important to study the ratification process of the Rome Statute and explore potential obstacles for states’ decision to join the ICC.

Japan acceded to the Statute fairly late. While most ICC member states had ratified it by 2003, Japanese ratification did not come until July 20072. The objective of my research in Japan was to gather empirical evidence to answer the question: Why did it take almost 10 years for Japan to join an institution that it presumably supported from the beginning? Literature on Japan’s accession to the ICC has thus far focused on the legal aspects3. My research is aimed at contributing a political aspect to this literature by analyzing different political motivations behind the ratification process. This short article discusses some of the findings of my research in Japan.

Although I am interested in the political aspects of the ratification process, it is impossible to deny the role of the legal aspects. When countries consider joining the ICC, amendments to national laws are usually necessary. The Japanese legal system is a mix of civil and common law, with civil law characteristics, adopted from the German legal system, dominating the system4. Japan’s ratification of the Rome Statute required the deliberation of three main legal issues.

The Peace Bell, which Salla rang on her trip to Hiroshima.

The Peace Bell, which Salla rang on her trip to Hiroshima.

First, Japan had to consider whether and how to accommodate the crimes under the jurisdiction of the ICC with the national Criminal Code, which is very specific and, as such, takes time to amend. As Arai et al. point out, Japan decided not to amend the Criminal Code because almost all crimes under the ICC’s jurisdiction, with a few, rather irrelevant exceptions, are already covered by Japanese laws.5

As Meierhenrich and Ko elaborate, another legal issue, related to the jurisdiction of the ICC, was Article 9 of the Japanese Constitution:

“Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes. In order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential, will never be maintained. The right of belligerency of the state will not be recognized.”6

Because of this paragraph, legislating war-related laws was initially complicated, as this would imply the hypothetical possibility of Japan engaging in war-related activities. This obstacle, however, was overcome in 2004, when the Diet adopted a package of emergency legislation that enabled Japan to ratify the 1977 Additional Protocols of the Geneva Conventions.7

The last important legal issue was cooperation with the ICC, which Japan resolved by adopting the ICC Cooperation Law, consisting of 65 articles8. Altogether, the elaborate legal review of national laws and the Rome Statute, as well as the preparation of the ICC Cooperation Law, slowed down Japan’s accession to the ICC.

Besides legal questions, according to the interviews I conducted in Japan, the US policy on the ICC also delayed ratification. While the Bill Clinton administration was not enthusiastic about the ICC, the George W. Bush administration was openly opposed, starting a global campaign against the ICC and not hesitating to voice its dismay about the institution in bilateral and multilateral forums9. Since the United States is Japan’s most important ally, this US policy affected Japan’s willingness to join the ICC. The US opposition against the ICC started to ease after 2005, though, when the UN Security Council referred the situation in Darfur to the ICC. Shortly thereafter, Japan started to consider ratifying the Rome Statute.10

Another aspect that delayed Japan’s ratification of the Rome Statute was money. Due to its high gross domestic income, Japan was slated to become the main contributor to the ICC. Article 117 of the Rome Statute, defining the assessment of the contribution, left some room for interpretation, and Japan initially calculated that its contribution to the ICC would be 28% of the total budget.

Japan wanted to apply the UN ceiling of 22% to its ICC contribution, but the European Union hesitated to accept the proposal. Eventually, the ICC Assembly of States Parties approved the 22% ceiling, and ratification began to materialize.11

Words of Pope John Paul II to the people of Hiroshima, which have been the beacon guiding Salla's research.

Words of Pope John Paul II to the people of Hiroshima, which have been the beacon guiding Salla's research.

To conclude, unlike the European countries, most of which wanted to join the ICC quickly in order to show their support for the new Court, Japan was not in a hurry to ratify the Rome Statute. Rather, Japan wanted to wait and see how the newly established ICC would develop before it joined. In general, there was not much political pressure in Japan to join the ICC, but the UN Security Council’s referral of the Darfur case to the ICC clearly had a positive influence on Japan’s decision.

The impact of the Jun’ichiro Koizumi administration on the ratification process has not yet been researched in depth, and this will be the subject of my future research. Tentatively, the delay in ratification can be explained in terms of the Japanese way of dealing with international treaties, which was described in many of the interviews I conducted.

Today, Japan is an active member of the ICC, and one of the Judges, Kuniko Ozaki, is Japanese. I hope that in the future, Japan will start to actively promote the ICC in Asia, as the region is clearly underrepresented in the organization.

 

1 I want to thank the Tokyo Foundation for making my research in Japan possible. I also wholeheartedly thank my Japanese advisor, Professor Mariko Kawano of the Waseda University’s School of Law, for allowing me to visit her institution and for her warm and most helpful guidance with my research in Japan. I am also grateful to Professors Shuichi Furuya (Waseda University), Akira Mayama (Osaka University), Osamu Niikura (Ayoama Gakuin University), and Hideaki Shinoda (Hiroshima University) for discussing and sharing their experiences regarding Japanese policy on the ICC with me and Keita Sugai (Tokyo Foundation) for his helpfulness. Furthermore, I am indebted to the Embassy of Finland in Tokyo, in particular Ambassador Jari Gustafsson and First Secretary Jukka Pajarinen, and the Delegation of the European Union to Japan. Lastly, I want to thank Juha Hopia, Suvi Huikuri, Sergey Kryukov, Riikka Rantala, and Asaka Taniyama for making my stay in Japan unforgettable. Unless otherwise mentioned, the opinions expressed in this paper are solely my own.
2 United Nations Treaty Collection, “Status of Treaties,” Multilateral Treaties Deposited with the Secretary-General, 2012. Available at: <http://treaties.un.org/Pages/ParticipationStatus.aspx> (visited March 8, 2013).
3 Kyo Arai, Akira Mayama, and Osamu Yoshida, “Accession of Japan to the International Criminal Court: Japan’s Accession to the ICC Statute and the ICC Cooperation Law,” Japanese Yearbook of International Law, 51 (2008): 359–383; Kanako Takayama, “Participation in the ICC and the National Criminal Law of Japan,” Japanese Yearbook of International Law, 51 (2008): 348–408; Yasushi Masaki, “Japan’s Entry to the International Criminal Court and the Legal Challenges It Faced,” Japanese Yearbook of International Law, 51 (2008): 409–426; Jens Meierhenrich and Keiko Ko, “How Do States Join the International Criminal Court? The Implementation of the Rome Statute in Japan,” Journal of International Criminal Justice, 7/2 (2009): 233–256.
4 Veronica Taylor, Robert R. Britt, Kyoko Ishida, and John Chaffee, “Introduction: Nature of the Japanese Legal System,” Business Law in Japan, 1 (2008): 3–8; CIA, The World Factbook: Legal System, March 5, 2013. Available at: <https://www.cia.gov/library/publications/the-world-factbook/fields/2100.html> (visited March 8, 2013).
5 Arai, Mayama, and Yoshida, “Japan’s Accession,” p. 365ff.
6 The Constitution of Japan, November 3, 1946. Available at: <http://www.kantei.go.jp/foreign/constitution_and_government_of_japan/constitution_e.html> (visited March 8, 2013).
7 Meierhenrich and Ko, “Rome Statue in Japan,” p. 237ff.
8 Takayama, “Participation in the ICC,” p. 388.
9 John R. Bolton, “Letter to UN Secretary General Kofi Annan,” Digest of United States Practice in International Law 2002, Sally J. Cummins and David P. Stewart, eds., 148–149, Office of the Legal Adviser, United States Department of State (Washington, D.C.: International Law Institute, 2002); H.R. 4775, Title II, American Service-Members’ Protection Act (Washington D.C.: Congress of the United States of America, January 23, 2002); H.R. 4818, Consolidated Appropriations Act, 2005. Washington D.C.: Congress of the United States of America, January 20, 2004; Human Rights First, “U.S. Threatens to Cut Aid to Countries That Support the ICC,” December 7, 2004. Available at: <http://www.iccnow.org/documents/HRF_Nethercutt_07Dec04.pdf> (visited March 8, 2013); John R. Bolton, “American Justice and the International Criminal Court: Remarks at the American Enterprise Institute,” Washington, D.C., November 3, 2003; Philip T. Reeker, “Press Statement: U.S. Initiative on the International Criminal Court,” U.S. Department of State, June 13, 2000.
10 Masaki, “Japan’s Entry to the ICC,” p. 418ff.
11 Ibid., p. 415ff.

Why Regulate Hedge Funds? : Comments on the Brazilian Experience

August 20, 2012
By 19674

In June 2007, two hedge funds linked to Bear Stearns, a major American investment bank, announced losses of US$16 billion, forcing the bank to inject that amount to prevent the collapse of both funds. These funds operated with a high degree of leverage, based on derivatives financed with funds borrowed from large banks, guaranteed with securities backed by mortgages and other debts: the Collateralized Debt Obligations (CDO). The funds together accounted for approximately US$18 billion in bonds (of which US$16.2 billion had been purchased with borrowed funds), which led Bear Stearns Asset Management to play a prominent role in the CDO market.

The losses represented the first signs of the serious financial crisis that would reach its peak the following year, in 2008, when Bear Stearns itself was bought by JP Morgan Chase in a deal for only US$236 million, aimed at avoiding bankruptcy.

Despite its seriousness, this was not the first time that the failure of a hedge fund triggered panic on international financial markets and weakened them. Ten years earlier, in 1998, the collapse of Long-Term Capital Management (LTCM) forced the Fed, along with 14 financial institutions, to orchestrate a recapitalization of US$0.6 billion. Like Bear Stearns, LTCM had borrowed large amounts from the banking sector, allowing it to take bets that exceeded the notional value of US$1.5 trillion, while shareholders capital was no more than US$4.8 billion. This fund was, arguably, the most active user of interest rate swaps in the world, with contracts that totaled US$750 billion. The magnitude of the two events and the similarity of strategies used to obtain high returns—high degree of leverage and loans from banks—have raised questions about the effectiveness of regulatory initiatives to avoid the recurrence of systemic crisis.

Debate on Regulation

Traditionally, supporters of “laissez faire” argue that hedge funds increase the efficiency and liquidity of the financial system, either by spreading risk among a large number of investors or by improving the pricing of the traded assets, thus removing any space for more restrictive regulations. Not coincidentally, in the last 10 years, mainly in the United States and Europe, the notion that financial regulatory institutions should interfere minimally and only in situations involving the general public has preponderated. Along this line, the hedge funds, as private investment structures targeting high-income investors—and treated in a different way from regular investors—were placed outside the direct jurisdiction of regulators.

Following this line of thinking, regulatory efforts in the period focused on improving the ability of banks and other financial institutions to monitor and manage risks by individually managing exposure to these funds. The promotion of transparency about the risks assumed by those investment companies would be sufficient, it was argued, to enforce an adequate market discipline, with no need for a more direct regulation.

The predominance of this view has hindered the adoption of a more restrictive regulatory framework, especially with regard to the systemic aspects of these funds in financial markets. Even in the context of the last global crisis, the belief that hedge funds played a limited role in the genesis of the systemic turmoil has prevailed, in spite of the substantial losses they have suffered.

In this scenario, hedge funds have fed paradoxes with serious implications for the dynamics of the international financial system. First, they present themselves as managers of large private fortunes, mainly for large institutional investors; however, they usually take loans with the formal banking system, and thus they naturally transfer the risk of their positions to the entire credit system, that is, they transform the operations of private funds into operations throughout the investing public. Second, they claim to be able to deliver high absolute returns, in any condition, exploiting price anomalies in the market; however, they often suffer significant losses in situations of turbulence, as seen in the last global crisis. Third, while they remain largely outside the scope of regulations, they are undoubtedly channels of transmission of systemic risk. Fourth, despite the large number of these agents and the diversity in their investment strategies and objectives, they present a noticeable similarity in their risk exposures and the securities they trade, which tends to cancel any eventually positive effect of a possible heterogeneity of these agents.

The recent, post-crisis initiatives on the regulation of hedge funds, both in United States and Europe, have exhibited superficial and still timid proposals to effectively counter the contradictions listed above. On the other hand, unlike most countries that are still discussing and trying to adopt their laws, in Brazil it has already become a reality. Interestingly, most of the claims for stricter rules on the behavior of hedge funds are particularly familiar to the Brazilian financial markets, and Brazil may be able to make a significant contributions to the design of a more effective regulatory framework at the international level.

The Example of the Brazilian Experience

Traditionally, the Brazilian capital market has been marked by the presence of restrictive regulatory and supervisory structures. Particularly in the segment of investment funds, while the offshore vehicles enjoy wide freedom in conducting its operations, onshore funds must conform to strict standards of regulation and supervision. These standards, although targets of criticism by those who advocate a more flexible market, recently have received worldwide attention because of the low vulnerability demonstrated by domestic financial institutions during the unfolding of the international financial crisis, initiated in the subprime mortgage market in the United States.

Among the major domestic requirements, all investment funds based in Brazil must be registered with the Comissão de Valores Mobiliários (CVM, or the Securities Commission) that acts as the primary regulator and supervisor of funds and investment firms in the country. In accordance with CVM instructions, all funds, including hedge funds, must provide daily liquidity reports and disclose, also daily, the value of their quotas and assets to the general public. Moreover, managers must monthly deliver to CVM statements with the composition and diversification of the portfolio, as well as a summary trial balance of their funds. Additionally, every year they have to send to CVM a consolidated balance sheet approved by an independent auditor. At the same time, the Associação Brasileira das Entidades dos Mercados Financeiros e de Capitais (ANBIMA, or the Brazilian Association of Financial and Capital Markets Entities), which pools the institutions that manage funds in Brazil, also plays an important self-policing role.

In addition to these requirements that provide more transparency to the public, an important restriction applied to the funds in Brazil is that these entities are prohibited from contracting and receiving loans from financial institutions. This limitation establishes an important difference between domestic and offshore funds, since it reduces the possibility of highly leveraged funds being supported by third parties and eliminates a disturbing channel of exposure of the formal banking system to hedge funds, which proved to be particularly disruptive to the international financial market in the last crisis.

On this point, it is important to note that Brazilian authorities do not officially consider hedge funds to be a different family of investment funds and usually subject them to the same regulatory rules that are applied to other funds. Another specificity of the Brazilian financial sector involves the over-the-counter market, in which all financial derivative instruments and securities traded are recorded with the Central de Custódia e de Liquidação Financeira de Títulos (CETIP, or the Central Securities Depository), an agency supervised by the Central Bank of Brazil and whose activities are regulated by CVM. Thus, all securities exchanged between private investors outside the regulated market (São Paulo Stock Exchange) are subject anyway to observation by national regulatory authorities. Again, in the context of both the international financial crisis and the collapse of LTCM in the United States, the absence of such information was particularly harmful in assessing the real extent of risk exposure between different financial institutions.

All these restrictions have been relatively successful in preventing and avoiding the propagation of systemic risk within the domestic financial market, although they are not fully able to prevent the contagion of crisis in the unregulated global markets. Amid the recent turmoil, the defense of more direct, coordinated, and continuous supervision of financial institutions in different countries has gained importance in international forums, making it increasingly more urgent. In this scenario, the Brazilian experience on the regulation of the investment fund industry can be a relevant reference in guiding these discussions at the international level.

The opinions expressed in this paper are those of the author and do not necessarily reflect the views of any organization with which she is or has been affiliated.

Japan’s Lay Judges and Implications for Democratic Governance

May 11, 2012
By 19600

On a sunny January morning in 2010, I sat high above the bustling streets of Tokyo in the central offices of the Japan Federation of Bar Associations (JFBA), speaking with a professor and noted scholar of Japan’s newest judicial incarnation, the saiban-in seido, or “lay judge system.” As I listened and learned more about the Japanese lay judge system that January morning, I found it amazing that it was my position as a Sylff fellow that had led me here.

The sign in front of the Supreme Court of Japan.

The sign in front of the Supreme Court of Japan.

In May of 2009, Japan began formal operations of the saiban-in seido, a quasi-jury method of trial adjudication that blends elements of the Anglo-American jury and the European lay assessor adjudicatory systems. Mandated by the Lay Judge Act of 2004, this system represents the first time that Japanese citizens have been asked to formally participate in the criminal adjudicatory processes of the state since 1943. At its core, the Lay Judge Act established a form of criminal trial adjudication where citizen jurists serve with and work alongside their professional counterparts on trials where the offense falls within a limited range of high crimes.

Under the saiban-in seido, in cases where the defendant contests his or her guilt, the judicial bench is composed of three professional judges and six lay civilians chosen from the population at random. These mixed tribunals are charged with not only determining the guilt of the defendant but also the sentence to be imposed. Decisions and judgments by the lay judge panel are based on majority vote, although any valid verdict is required to include the votes of at least one professional judge and at least one lay jurist. On a sunny January morning in 2010, I sat high above the bustling streets of Tokyo in the central offices of the Japan Federation of Bar Associations (JFBA), speaking with a professor Continue reading →