Enchanting Witches and Naughty Rabbits: I'm not bad...I'm just drawn that way?

I just spotted this article on the Guardian website:

 http://www.guardian.co.uk/world/2011/sep/27/amanda-knox-faithful-woman-lawyer

It struck me as an outstanding example of the use of narrative language in oral advocacy. Amanda Knox has been found guilty of the murder of Meredith Kercher. The prosecution case was based on a narrative in which Amanda (and others) stabbed the victim to death in a sex game which went very wrong. Amanda's legal team is seeking to overturn the conviction. Both the prosecution and the defence are painting some pretty colourful pictures of Knox. 

Knox's lawyer has portrayed her as Jessica Rabbit. As in the beautiful, provocative cartoon lady in the 1988 Robert Zemeckis movie “Who Framed Roger Rabbit”. As the article notes, this is almost (but perhaps not quite) intimating that Knox has herself been framed. This link is quite clever as it reflects well on Amanda, who her team are trying to show as a victim. But the analogy comes at a price. They have to connect Amanda (who remember is, for the moment, a convicted sex-game-playing-murderer) with a provocative and suspect cartoon woman. Is that really the image they want the judges to have of her? 

Similarly, the prosecution have apparently described her as an “enchanting witch”. This I find much more objectionable. 

I’m reminded of high school history lessons when we learnt about how (several hundred years ago) we used to burn outcast women as “witches”. Does it strike anyone else, that in using this phrase, the proecution lawyers are aligning themselves with some pretty unattractive characters from history?

Types of Legal Argument

I had a quick flick throught the book for this week’s reading, and I have had the benefit of reading the summary that Tim has posted on his blog.

So instead of repeating points already made, I thought I would draw everyone’s attention to a section in a book called “Letters to a Law Student” by Nicholas J. Mc Bride, because it deals with a similar topic to the five types of legal arguments book, but from a slightly different perspective. Most of the book is for those who haven’t yet begun to study law, but there are a few paragraphs I found myself coming back to as a student when marshalling my arguments for moot court because they give you a clue about how to make the kind of legal argument that would persuade a judge (as opposed to a law professor). Keeping these four points in mind as I wrote kept me focused on the crucial question: what do I want the judge to do with the information I am presenting?

Here is my summary:

McBride says there are four basic reasons that a judge decides a case. Depending on which of these reasons a judge chooses to apply (or emphasise if the judge uses more than one type of reason), the outcome of the case can be different. The judge will look at all the materials presented and come to a decision based on one of the following. 

Reason 1: The formalistic approach

The judge decides the case based on his interpretation of the rule. The material used to come to the decision is the statute, case or contract where the rule is contained.

Reason 2: The principled-based approach

The judge takes an overview of all the relevant precedent in a particular area, and gleans a principle based on the fact that many previous cases seem to be giving effect to a particular idea - a common thread that runs through all the disparate cases. 

Reason 3: The policy-based approach

This sort of judgment focuses on the consequences on future behaviour that would result from the judgment itself. 

Reason 4: The justice-based approach

This is where the judge simply thinks it is fair that the cases is decided in the particular way. 

Finally, there is the “opaque” approach - the sort of judgment that does not make it clear why the case was decided in the way that it was. 

McBride asserts that the public generally expect cases to be decided for Reasons 1 and 2, or a combination that results from the statutes and the cases. By contrast, when it looks as if a judgment has been made for reasons of fairness, justice and the public interest, the public start to think that the system is too subjective and say things like: “If only I had got a different judge!”

Whereas if the decision is based on statutes and cases, the losing party can be consoled by the thought that it was the rule, not the judge, that was his or her downfall. 

My guess is that a great many arbitrators feel the same way. Unless they have been specificaly requested to deliver an ex aequo et bono or an unreasoned award, they will want to (try to) render an award that commands the respect of both parties. For this reason, it is my suggestion that policy and fairness arguments should be very sensitively addressed to the tribunal. My aim would be to provide the arbitrator with sufficient amunition to write an award that could be based entirely on Reasons 1 and 2. I would feed in Reasons 3 and 4 where appropriate to (as Professor Bayer say) “make the arbitrator feel good” about coming to the decision you want him or her to come too.

What are your views on policy and fairness arguments? Do you think my approach is too formalistically British? 

CISG: an Entire Universe of Sales Law?

Autonomous Interpretation and Uniformity - Article 7(1)

One of the key things to note about any international instrument is that it represents a compromise between the contracting parties, in this case the signatory states. This means that each state has to put aside their own diosyncratic notions about, say, the law of contract or tort and accept a broader, international interpretation of these concepts. These concepts that might be jealously guarded by individual legal traditions. In particular I am thinking of the common law insistence upon consideration for the formation of a valid contract, but other legal systems do just fine without it. In the CISG context it will be irrelevant because here a autonomous interpretation is required. 

Several European Union intruments (such as the Rome I and II Regulations, and the Brussels Regulation) require autonomous interpretations of concepts such as tort and contract. The problem regarding which European countries have got it ‘right’ and ‘wrong’ is fairly simply solved by the authoritative and binding rulings of a supranational court: The European Court of Justice. In addition, domestic courts throughout Europe have been quite good at interpreting in the ‘broad internationalist spirit’ evidently required by an autonomous interpretation.

But how this plays out in the CISG world is likely to be much more fluid because firstly there is no supranational court to keep a watchful eye on CISG signatory courts and secondly in the private world of ICA, awards are generally not available for scrutiny.  

How, then can the CISG live up to its second guideline for interpretation, that of uniformity? It is impossible for all arbitral panels and all courts to live up to this ideal at all times, even with access to the databases of foreign case law and judicial writings. A comparative legal analysis of the rules or an analysis of the travaux preparatoire must be conducted afresh each time, because of the lack of binding precedent.

Filling the gaps...

States have not found agreement in all areas over which CISG has jurisdiction. As a result, CISG is a far from hermetically sealed instrument. The drafters have left gaps, and these gaps must be filled by the arbitral panels or courts in each case. And what are they to use to fill these gaps? They are to use not just their domestic law, nor simply from the UNIDROIT Principles of International Commercial Contracts (which offers itself for this very purpose), but general principles and underlying policies gleaned from the entire CISG document. Flexible indeed. 

No doubt this level of flexibility lends itself to the porous, often ad hoc nature of international trade, and probably has contributed to its popularity and success within international commercial arbitration.

Challenges to Arbitral Awards and The 'pro-enforcement bias'

The rules about when you can challenge an arbitral award seem remarkably strict, but without such rules, arbitration would cease to be an attractive method of dispute resolution for parties. 

When reading this chapter, I was continually reminding myself that this is a commercial context and   that fairness does not trump all other considerations. It suits a some parties to have a result (and therefore an end to the dispute) rather than the uncertainty of having no settled result at all. This makes a lot of sense to me: it is bad for business if you can't predict how much of next year’s profits are going to be swallowed up paying to argue as case through the appeal courts. Once you have got the arbitral award it is final. At least it usually is. And if it is not final, then arbitration will start to look increasingly like litigation. 

Party Autonomy and The Law of the Seat of the Arbitration

Parties can, it seems, add layer upon layer of complexity to their arbitration agreement, if they so choose. This freedom of choice means that parties may inadvertently make disadvantageous selections in the drafting of an arbitration clause, or simply get stuck with unfortunate default rules in the absence of choice. 

Example: what procedure should parties select to govern the arbitration?

Parties may elect the arbitral seat of their choice. The arbitral seat has been described as the “centre of gravity” of the arbitration: it provides not only the geographical location, the legal system within which the arbitration lies. Unsurprisingly, the arbitration must adhere to any of the mandatory rules governing arbitration that might apply, just as any (even fleeting) visitor must obey the traffic rules and the criminal laws and so on when passing through a given jurisdiction.

However, the arbitration also has the ability to opt out of any of the non-mandatory rules, and make choices about the following:  

• Which substantive law should govern the dispute
• Where the geographical location of any of the meetings and hearings related to the arbitration.
• Whether to perform investigations at locations outside the geographical limits of the lex arbitri.
• Whether to adopt institutional rules such as UNCITRAL
• Whether to select the procedural rules of a State other than the the lex arbitri, in so far as they do not conflict with the mandatory rules of the lex arbitri. 

The above (non-exhaustive) list seems largely sensible, except for the last item. I can’t imagine advising a client that they would be better off with procedural rules that might conflict with the legal system of which their arbitration would form part. As a matter of party autonomy, it seems logical to allow total freedom of choice, but perhaps this is a case of autonomy gone too far?

On the other hand, party autonomy can be curtailed by the mandatory rules of a State. For example, two parties might agree on an arbitration clause to govern any future disputes between them. Depending on which lex arbitri they choose, the tribunal might be granted the power to consolidate arbitrations which deal with overlapping subject matter. This means that unwelcome third parties could be drawn into the arbitration.  

It seems that selecting an unsuitable lex arbitri could be just as inconvenient as selecting an unsuitable substantive law. And this certainly makes sense of last week’s reading about having an understanding about the variations in procedure between different countries.