By Dr Jed Odermatt

Article 3(5) of the Treaty on European Union (TEU) sets out the Union’s obligation to “contribute […] to the strict observance and the development of international law”. The Court of Justice of the European Union (CJEU) has interpreted this to mean that “when [the Union] adopts an act, it is bound to observe international law in its entirety, including customary international law, which is binding upon the institutions of the European Union.” Until now, however, the CJEU had not gone so far as to annul a Union legal act on the basis that it violates international law. On 4 October 2024 the Grand Chamber of the Court of Justice upheld the General Court’s decision to annul two economic agreements concluded between the European Union and the Kingdom of Morocco. The landmark judgment is the first time the CJEU has annulled an EU agreement for violating international law binding on the Union.

The legal and factual background to these cases has been discussed elsewhere on this blog. The cases relate to the former Spanish colony of Western Sahara, which is considered by the United Nations to be a non-self-governing territory. In a 1975 Advisory Opinion, the International Court of Justice (ICJ) recognised the people of Western Sahara have the right to self-determination. The status of the territory continues to be subject to a long-stalled United Nations mediated peace process. France, the only EU Member State with a permanent seat on the UN Security Council, recently backed Morocco’s autonomy plan that would recognise Morocco’s sovereignty over the territory.

The economic agreements between the European Union and the Kingdom of Morocco have been the subject to ongoing litigation before the CJEU and domestic courts in the EU Member States over the last decade. In December 2015, the General Court annulled the Council Decision approving the Euro-Mediterranean Agreement concluded between the EU and Morocco in so far that it applies to the territory of Western Sahara. That decision was reversed on appeal in 2016. In these judgments, the Court highlighted two important factors. First, the territory of Western Sahara is separate and distinct from Morocco. Second, as Western Sahara is considered a ‘third party’ to these agreements, they can only apply with respect to Western Sahara with the consent of the people of Western Sahara.

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By Muhammad Tanvir Hashem Munim

For the last few days, Bangladesh has seceded from the outside world. The government has imposed a communication blackout amid its crackdown on the student protestors demanding quota reforms. It has enforced a nationwide curfew and deployed military forces.

The student protests in Bangladesh demanding quota reforms began in early 2018. The movement was sparked by growing frustration among university students over the existing public sector job quota system, which they felt disproportionately favoured certain groups at the expense of merit-based selection. The quota system in the country reserves 56% of government first-class and second-class jobs for some specific groups. In some job sectors, this quota reservation may reach as many as 96% of the jobs. Such a system caused discontent among the university students.

The discontent led to organised demonstrations, initially gaining momentum at Dhaka University and quickly spreading to other universities across the country. The students’ primary demand was to significantly reduce the quotas and allocate more jobs based on merit, ensuring equal opportunities for all candidates. The movement gained widespread support, highlighting broader issues of fairness and transparency in government recruitment processes.

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By: Sahar T. Sadoughi

“Europe will be forged in crisis and will be the sum of the solutions adopted for those crises”— Jean Monnet.

The last decade has seen great geopolitical challenges, from ‘Brexit’ to the COVID-19 Pandemic to the wholescale Russian invasion of Ukraine and beyond. With these arguably seismic events, the role of states, transnational bodies, and the international order takes centre stage. It is these questions that grounded the City Law School  Institute for the Study of European Law (ISEL) Annual lecture on 10 July entitled ‘The EU and the Current Geopolitical Challenges’. Featuring a lecture by two-term former President of the European Commission and former Portuguese Prime Minister José Manuel Barroso, followed by a panel with Professors Panos Koutrakos and Elaine Fahey, chaired by Christopher Vajda KC, former Judge at the European Court of Justice; the Event aimed to provide insight into the unique role the European Union currently occupies vis-à-vis these ongoing geopolitical challenges and its potential role in a rapidly changing international order.

Barroso’s lecture used insight from his previous role as president of the European Commission and his current role as chair of Global Vaccine alliance ‘GAVI’ to highlight the challenges currently facing the international order and the place that the EU operates and the strength of unity arising from its response to these crises. He presented his thesis behind the lecture, stating that he believes the EU is going to make more progress in its identity insofar is the EU is moving from “geopolitical adolescence” to becoming a “geopolitical adult”.  He began by positing that the power behind the international order was based in the US and Europe after the Second World War, but that this international order is in the process of changing. Barroso cited the invasion of Ukraine by Russia in March 2022 as a historic moment that has turned the tide for the EU, claiming that it is unlikely the world will come to a status quo ante.

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By Enrico Bonadio (City, University of London) – Tanvi Agarwal (West Bengal National University of Juridical Sciences)

The ‘right to repair’ movement is currently gaining momentum, as also confirmed by a directive recently approved by the European Council. Broadly speaking, such a right aims at giving consumers the liberty to enjoy products efficiently for a longer period of time. Every product has indeed a period for which it functions effectively, beyond which it starts becoming obsolete. Here, the divide in the ideology between the manufacturers and the consumers becomes stark.

Manufacturers of products such as consumers’ electronics (e.g. smartphones) often, either directly or indirectly, tend to prevent consumers from repairing or modifying these products on their own. They may deploy strategies like restricting access to the information available to the public regarding the basic blueprint or manuals of the product along with denying access to necessary instruments, tools of repair and essential elements of the product.

But consumers often want the right and freedom to modify and repair these products on their own without which they are forced to endure expenses in buying a new product. While this debate is burgeoning advocating for a change in legislation to allow this right to be made available for consumers, the manufacturers are rigorously trying to stall the process by claiming how the ‘right to repair’ impinges on their intellectual property (IP) rights.

Indeed, such IP rights, especially copyright, can be invoked to control who can repair these goods. For examples, complex products such as those within the information and communication technology sector often incorporate software or other technological device which are protected by IP rights. And pieces of legislation like the US Digital Millennium Copyright Act (DMCA) and the EU Info-Society Directive explicitly prohibit the circumvention of technological protection measures embedded into such copyright-protected products. These rules can be enforced against third parties who are involved in repairing services.

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By Dr Tietie “Frank” Zhang, The City Law School

In an article recently published in the Hong Kong Law Journal, Dr Tietie “Frank” Zhang discusses the appropriate approach that the Supreme People’s Court of China (SPC) should adopt when interpreting the scope of an arbitration agreement.

Arbitration is the preferred method to resolve international commercial disputes in today’s world. The scope of an arbitration agreement is a key issue in the theories and practice of international arbitration, because it directly decides an arbitrator’s jurisdiction. If a dispute falls outside the scope of an arbitration agreement concluded between the two parties, the arbitrator will not have authority to decide the case. This therefore makes scope a crucial factor in the arbitration process.

Courts in many jurisdictions and particularly those that are pro-arbitration, or friendly towards arbitration, have adopted a presumptive rule when determining scope issues. Under this rule, courts interpret the scope of an arbitration agreement broadly to cover all disputes related to the contract between the parties, except for those they have explicitly excluded. As a result, disputes broadly related to a contract, including those arising out of a supplemental agreement or a settlement agreement, are usually deemed as falling within the scope of the arbitration clause in the original contract.

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By Nouf Ali S AlGazlan, PhD Researcher at The City Law School

Law students are always asked to be ‘more critical.’ But what does this really mean? Patrick Goold’s ‘A Critical Introduction to Intellectual Property Law’ is a good example of a book that enables students to deeply engage with philosophical concepts and refine their critical thinking skills. At the book launch last week, on June 11, 2024, a diverse panel of experts engaged in an interesting discussion on the role of interdisciplinary research in Intellectual Property.

The panel consisted of Lord Justice Richard Arnold (Chair), Professor Estelle Derclaye (Nottingham), Professor Justine Pila (Oxford), Professor Martin Kretchmer (Glasgow), Dr Enrico Bonadio (City), and Dr Patrick Goold (City). The panel first introduced their thoughts on the book and then there was an open discussion. A summary of each panel member’s main points is provided below.

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By Dr Enrico Bonadio (City, University of London) and Akshita Rohatgi (University School of Law and Legal Studies, New Delhi)

Blurring the edges between reality and make-believe, the Metaverse is part of an aspirational Web 3.0, characterised by certain features including an immersive 3D virtual space, interoperability, and real-time operation. While there is no consensus on its definition, certain foundational technologies such as AI (artificial intelligence) and XR (extended reality), which includes VR (virtual reality), AR (augmented reality) and MR (mixed reality) contribute to the Metaverse.

The Metaverse market is anticipated to experience a compound annual growth rate (CAGR) of 37.73% between 2024 and 2030, reaching a projected market volume of US $507.8 billion by the end of the forecast period. Considering that around 390,000 patent applications are pending worldwide concerning AR, VR, and ER, Metaverse-related inventions may dominate the market in the future.

At present, the US and China lead in the number of Metaverse-related patent filings. Companies innovating in the Metaverse seek patent protection for two main types of subject matter: hardware components and software processes. The former typically includes enhanced Central Processor Units for the virtual environment and physical access devices such as ER headsets. In contrast, the latter includes algorithms and networked computer systems like distributed ledgers and blockchain.

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By Dr Patrick Goold

A few years ago, I wrote a short article arguing that the section on computer-generated works in the Copyright, Designs and Patents Act 1988 (CDPA) is either meaningless or lacking justification. At the end of December 2023, the Court of Appeal took a step toward the position I outlined in that article.

As many readers will know, copyright is a property right which subsists, primarily, in ‘original literary, dramatic, musical or artistic works’ (s1(1)(a) CDPA). ‘Originality’ in this sense refers to the relationship between the author and the work. In modern EU and UK jurisprudence, a work is original if it is the ‘personal intellectual creation’ of an author and flows form their ‘free and creative choices’. In such cases, copyright vests initially in the author. There is, however, an exception in s9(3) CDPA. If a work is computer-generated – that is, not authored by a human – then copyright ought to be vested in the person who made the ‘arrangements necessary for the creation of work’. In the only case to interpret this provision (Nova Productions Ltd v Mazooma Games Ltd & Ors [2006] EWHC 24 (Ch)), the programmer of the computer was held to be such a person.

In The Curious Case of Computer-Generated Works under the Copyright, Designs and Patents Act 1988, I argued the s9(3) provision makes little sense. Broadly, the section could be interpreted in two ways. For simplicity, I will refer to them here as options A and B. Under option A, s9(3) must be interpreted consistently with s1(1)(a), meaning that such works must be original to enjoy copyright. Under option B, s9(3) is an exception to s1(1)(a), meaning that such works do not need to be original to be protected. However, if option A is selected, then the provision is incoherent. In that case, the statute dictates that where there is no human author, then the work should only receive protection if there is an author who supplies the necessary originality (!).  Furthermore, in this eventuality, s9(3) is meaningless because the person supplying the necessary originality would be entitled to claim copyright in the normal manner. In the alternative option B interpretation, then the provision is not meaningless, it is just a bad law. It is no longer meaningless in this scenario because it expands the scope of copyrightable subject matter. It is a bad idea because there has never been a particularly good reason for doing so.

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By Dr Pia Rebelo

Diminishing ice shelves in the Arctic caused by climate change are allowing for new maritime routes in previously unnavigable marine spaces. This coincides with increasing oil and gas exploration plans in the arctic region which will no doubt require maritime services. The shipping industry may also want to capitalise on these newly opened routes as they provide shorter sailing times which can eventually result in fuel savings and less time at sea for seafarers. In a recent article authored by Dr Pia Rebelo and Mr Cyril Uchenna Amaefule published in the Environmental Law Review (ELR), the unique risks and hazards of Arctic shipping are discussed from a marine insurance perspective. While the authors do not necessarily advance an argument for increased economic activity in this ecologically sensitive region, nor is climate change viewed as an economic advantage, they do posit that insurers require better risk management frameworks to safeguard against the multitude of risks that are associated with artic shipping and to address some of the gaps in existing regulatory frameworks.

It is argued in the ELR article that in order for arctic shipping to become commercially practical, marine insurers require improved data and risk management methodologies in order to better calculate the premiums of Hull & Machinery (H&M) and Protection & Indemnity (P&I) insurance policies for ships travelling through the Arctic. Until such risks can be assessed, evaluated, and managed; marine insurers are likely to be cautious gatekeepers of arctic shipping pursuits. To date, insurers have paid out more in ship damage that has occurred in the Arctic than they have collected in premiums, which in itself is problematic. For Hull & Marine (H&M) insurers, bespoke policy plans will need to consider challenges caused by the extreme environment. Navigational concerns include, uncertain ice conditions, rapidly changing weather, extremely low temperatures, extended periods of darkness, communication failures due to high latitude, remoteness, emergency preparedness, and limited access to salvage services (Arctic Council, 2020). All of these factors can result in structural damage due to collisions (both ice and ship-to-ship), loss of propulsion, restrictions on manoeuvrability, and loss of entire ship. From a Protection and Indemnity (P&I) insurance standpoint, arctic shipping poses a number of problems with respect to crew safety and occupational hazards, major pollution incidents, wreck removal and salvage, and the impact on third party communities living in remote arctic regions.

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