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Book reviews

16 July 12

Reviews of Scottish Arbitration Handbook,

by Iain K Clark, Susan Oswald, David J Dickson, Lorna Drummond (Book review editor: David J Dickson)

Parratt & Foreman

PUBLISHER: AVIZANDUM
ISBN: 9781904968443
PRICE: £95

When the Scottish Parliament unanimously passed the Arbitration (Scotland) Act 2010, the aim was to place Scotland in the forefront of modern arbitration practice. It is refreshing to see what can be achieved when party rivalries are abandoned. Only time will tell if the ambition becomes reality, but we have a good start and, in this book, a good guide to arbitration in Scotland.

Generations of Scots lawyers who finished their studies having barely heard of arbitration can be forgiven, although the concept has been with us since the Middle Ages. In essence, traders looked to have disputes resolved quickly and cost effectively by “men of affairs” - in other words by people with an understanding of the issues in question. For decades far too many commercial cases have been won by the side with the better expert witnesses, regardless of the true merits.

It is perhaps astonishing to learn that the earliest mention of arbitration in Scotland, the Regiam Majestatem, dates from the early 14th century; and even with legislation being passed in 1598, 300 years passed until we had the Arbitration (Scotland) Act 1894. Its name notwithstanding, it had very little influence on substantive matters. Post-war Britain saw the realisation in Scotland that, whilst having a distinctive legal system was one thing, it was no great advantage to have a commercial legal system radically different on either side of Hadrian’s Wall. The Administration of Justice (Scotland) Act 1972 tried to assimilate some English procedures, in particular the stated case system. Unfortunately that was introduced to Scotland at the same time as it was being discredited in England. It had the effect of encouraging referrals back to the courts, negating the very point of arbitration. There was also little improvement on the takeup of arbitration in Scotland, despite the introduction of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (which was intended to embrace the UNCITRAL Model Law).

However, with the "new" Arbitration (Scotland) Act 2010, now in force for almost two years, it is to be hoped that arbitration finally finds its place as a preferred means of dispute resolution. The authors recognise that the success of this legislation will depend, to an extent, on the attitude of the courts. It is to be hoped that the courts will positively discourage references to them, save in extreme cases. Two early decisions of Lord Glennie, who also contributed the foreword, suggest that the courts will support the spirit of the legislation.

Over 200 pages of the book are devoted to the Scottish Arbitration Rules themselves (helpfully included as sched 1 to the Scottish Act). There is also ample reference to English and international authority (the authors noting that the early indications from the Court of Session are that the new Scottish Act should be read in the context of the well developed case law under the English Arbitration Act 1996); and numerous “Practical Points” throughout.

Finally, for those of you considering new careers as arbitrators (if you still make reference to “arbiters” you are definitely not keeping up to date), you will be delighted to know that the eligibility is that you have to be an individual who is 16 or over and not incapacitated in terms of the Adults With Incapacity legislation (set out in rules 3 and 4 of the Scottish Arbitration Rules). For those who want more detailed knowledge, legal or practical, this book will greatly assist the Scottish arbitration practitioner.

Iain K Clark, solicitor advocate, Young & Partners LLP, Glasgow and Dunfermline

Thalia Kruger

PUBLISHER: HART PUBLISHING
ISBN: 9781849461566
Price: £50

Thalia Kruger was part of a research team that conducted a study to examine the problem in Belgium and Hungary of international child abduction. Cases from 2007 and 2008 were analysed.The book is a revised version of the Belgian research report.

The research was based on 667 files. Twenty five parents were interviewed: 23 were left-behind parents and two were abducting parents.

"Abducting parent" is used to refer to the parent who has wrongfully removed or wrongfully retained a child or children. An abducting parent can be the parent with whom the child or children have had their principal residence, or may be a parent who had contact rights only. The left-behind parent has not consented to the removal or the retention of the child or children.

The qualitative data highlight how inadequate, in most cases, the solutions offered by the law are. The interviews with families highlight the difficulties for children having to move between countries: being removed from school, their circle of friends and a familiar environment. In some cases children have to adapt to a new environment and then return to the country of their habitual residence pending the legal proceedings. After their return the child has to re-adapt and in some cases relearn a language, not having spoken it for several months or even a year or more.

The child’s place in legal proceedings, and in particular the appropriateness of hearing the views of the child, is considered. The main arguments against hearing the child’s views were a worry that the child might be manipulated and a concern that the child may feel that they are being asked to choose between their parents, which would aggravate any conflict of loyalty that the child may feel and give them a sense of responsibility which they are too young to assume.

Little could be generalised from the families analysed, the research showed. Key sources of stress and conflict in the family were identified, including the fact of a parent living in a foreign country. In some of the interviews parents acknowledged that more could have been done to help their partner integrate. Issues such as good communication and respect for different values and traditions were recognised as key.

The author contends that, rather than respond to child abduction with contentious legal proceedings, solutions based on psychological assistance may be more efficacious. Prevention in the form of assisting families to deal with conflict is more effective than waiting until there are indications of a planned abduction, or indeed abduction has taken place. Parents should seek professional help whilst dialogue is still possible.

Clearly prevention is better than cure. It has to be remembered that the main victim of international child abduction is the child. There are far reaching consequences not just for children for whom the legal process fails, but also even for those children that are returned.

Susan Oswald, Sheehan Kelsey Oswald, Family Law Specialists

Aidan O'Neill QC

PUBLISHER: HART PUBLISHING
ISBN: 978184113046X
PRICE: £75

O'Neill opens by stating: "The European Union is based on a conviction, confirmed in and by World War II, that the experiment of the nation state had failed."

In a legal world where specialism is seen as an end in itself, it is refreshing to have an author consider one supposed area of specialised law and demonstrate its relevance, influence and direct impact on individuals' rights and obligations across all areas of practice: civil, commercial, criminal, employment, competition, planning, intellectual property, taxation, public procurement, health and safety, and more.

The author takes each discipline as a standalone chapter, but taken as a whole, demonstrates the full and daily impact of EU law. He does so with authority, lucidly describing the treaty base before moving to consider secondary EU legal instruments such as directives, concluding with implementation in the UK.

O'Neill anchors his belief that EU law needs to be read "in a manner which is informed by fundamental rights" by referencing each area of practice to the relevant provision of the Charter of Fundamental Rights. This is a compelling text and at this price is worthy of being in all practices.

David J Dickson, solicitor advocate

Steve Peers

PUBLISHER: OXFORD UNIVERSITY PRESS
PRICE: £95;
ISBN: 9780199604906)

This book offers a thorough and accessible account of this important and developing area of law. This area of practice may seem to the many to be of interest to the few. However, one only need consider the decision in Salduz v Turkey [2009] EHRR 19 to witness the profound impact EU law jurisprudence has on domestic criminal law in Scotland; or that, within the EU, 54,689 European arrest warrants have been issued in the past six years, resulting in 11,630 people being extradited to face continued criminal proceedings.

Peers echoes O'Neill (book reviewed above)in demonstrating the underpinning of EU law in national practice, wedded to "a sufficient standard of human rights protections". Peers also discusses EU policy development to secure free movement of people allied to the recognition of pre-trial detention orders (so-called Eurobail), the European protection order to protect victims of crime, or the future harmonisation of criminal law through "community criminal law competence" within the Lisbon Treaty.

This book will be of real value to those working in criminal law, legislation and policy development, considering as it does, visas, border control and the free movement of people, those within immigration and asylum, and related areas.

David J Dickson, solicitor advocate

Ian Hendry and Susan Dickson

PUBLISHER: HART PUBLISHING
ISBN: 9781849460194
PRICE: £60

Ian Hendry and Susan Dickson’s book on British Overseas Territories Law is a welcome and comprehensive review of the law in this area.

The last book on the subject, Commonwealth and Colonial Law, was published as long ago as 1966 and written by Sir Kenneth Roberts-Wray, a legal adviser of the Colonial Office, who had gained unique knowledge of the laws of the countries of the Commonwealth, many of whom in his time had become independent. It was well received and much respected, with Lord Denning remarking in the foreword: “at last we have the book to tell us all we need of the laws of the Commonwealth and Colonies”.

Although still of relevance today in parts, with the passing of 44 years much has changed in the former colonies, now known as the British overseas territories, many of whom have had new constitutions in recent years. And so it might be said that the time was ripe for the publication of British Overseas Territories Law, by two legal advisers to the Foreign Office with expert knowledge and experience in this field.

The book is a fresh look at this area of law as at 15 October 2010. It is a manual of law and practice, well organised and clearly written, dealing with a wide range of issues including sources of law, constitutional arrangements, relationships between the executive, judiciary and legislature, human rights protection, nationality and status, as well as the territories’ status in international and EU law.

And with a nod to Roberts-Wray, the book includes a very useful annex describing the arrangements in each specific territory. Already regarded by some as the definitive authority, I am grateful to the authors for their efforts and ability to provide what I have no doubt is the essential text for those who have an interest in this area.

Lorna Drummond QC, Murray Stable

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