the legal archipelago issue 22

40 Pages·2014·11.73 MB·English

Obiter Dicta
T H E L E G A L A R C H I P E L A G O
ISSUE 22
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Contents
4 EDITOR'S WELCOME 22 INTERNATIONAL SECONDMENT
5 MEET THE TEAM BY ALEX WAKSMAN [HERBERT SMITH FREEHILLS]
6 PRESIDENTIAL ADDRESS 23 CAMPUS AMBASSADOR INTERVIEW: VICTORIA
STEPEHENSON
8 EXAMINING THE SCOTTISH REFERENDUM
24 THE EU QUESTION
BY CAMMY CHO
BY HENRY FORRESTER
9 THE HOLIDAY PAY RULING AND THE PROSPECT
OF A "BREXIT" 26 WAS THE IRAQ WAR ILLEGAL, AND ON THAT
BASIS, IS TONY BLAIR GUILTY OF WAR CRIMES?
BY FIONA TAM
BY JOE PEGLER
10 WHEN MARRIAGE IS NOT ABOUT LOVE
28 THE USE AND ABUSE OF THE RIGHT TO SELF-
BY EN DU
DEFENCE: ISRAEL AND ITS VIOLATION OF
11 IT'S NOT A MOOT POINT INTERNATIONAL LAW
BY SAM HAYDAY AND MELISSA MAYNARD BY MONICA MYLORDOU
12 THE MEDICAL ARCHIPELAGO: TORT, CRIMINAL 29 IS WEST BEST?
AND HUMAN RIGHTS LAW
BY ELLE SHEERIN
BY JONNY ELEY
30 A DAY IN THE LIFE OF... [TAYLOR WESSING]
13 THREE PARENT BABIES: THE CLASH BETWEEN
32 HOW TO GET AHEAD
LAW, MEDICINE AND ETHICS
BY CLAIRE LESLIE
BY REBECCA LIMB
34 BARRED FOR LIFE
14 REGULATING EXECUTIVE REMUNERATION
FOLLOWING THE GLOBAL FINANCIAL CRISIS BY YASMIN HUGHES PUGH
BY PAROMA INDILO [FIELDFISHER] 36 PRO BONO AT WARWICK
16 THE HUMAN RIGHTS DIVIDE 38 AEROPLANES
BY TRISHA BHATTACHARYA BY ANITA CHAGAR
18 AN INTERVIEW WITH DR DALLAL STEVENS
20 STUDYING LAW IN UTRECHT
BY FRANCESCA ESPOSITO
NON-LAW, OUI LAWYER
BY LUKE GILLIN
21 WHAT'S THE DEAL WITH SPORTS LAW?
BY WIHYUK WIL KIM
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Editors’

Welcome

The development of the legal world in today’s ever changing climate leads us away from the idea
that areas of the law can be neatly mapped. We could choose to view the law as an ‘Archipelago’ – a
cluster of islands that are united by the same body of water; they are allied but distinct. These islands
clash with one another, develop their own cultures and traditions, they are a complex and ever-
changing ecosystem of ideas. Yet, ultimately there is a need for communication. Different areas of
the law overlap and cooperate to complement each other. It would be difficult to fully understand
the European Union without consideration for Human Rights, for example. Particularly in a
commercial context, this requirement of collaboration is paramount for a successful outcome. In the
course of any one transaction, input from the Corporate, Finance, Real Estate, Employment,
Competition, Intellectual Property and Tax teams could be necessary to close the deal. These
reciprocal relationships are exactly what make the law such a stimulating subject to learn and to
practice.
The breadth of topics featured in this edition touch on many aspects of law, with a
particularly global focus. Our writers have carefully woven topics of personal interest into the larger
picture of a connected world. It has been a pleasure to work on this issue and we would like to
thank all our contributors for their originality and hard work. Equally, we must thank our fantastic
subcommittee of assistant editors and marketing team for their creativity and dedication to task.
We would also like to thank the wonderful Warwick Law Society Executive Team who have provided
their unwavering support throughout the entirety of this process.
Finally, an incredible thank you must go to our sponsors, we sincerely hope that this issue has
surpassed your expectations and we hope that you will continue to support Obiter

Dicta for many years to come. ♦
Faizan Sadiq and Jessica Page
Co-Head Editors 2014/15
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Meet the Team
Trisha Bhattacharya Jonny Eley

ASSISTANT EDITOR ASSISTANT EDITOR
SECOND YEAR LAW FOURTH YEAR LAW
Cammy Cho Francesca Esposito

ASSISTANT EDITOR ASSISTANT EDITOR
THIRD YEAR LAW FOURTH YEAR LAW
Sarah Zahri Scarlett Mansfield

MARKETING AND PUBLICITY OFFICER MARKETING AND PUBLICITY OFFICER
THIRD YEAR LAW SECOND YEAR HISTORY
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P
residential
A
ddress
Dear Members,

Firstly, I would like to thank our sponsors. They provide us with the opportunity
to continue the proud history of Warwick Law Society. Over many years, we
have built strong relationships with our sponsors and each year the Executive
Committee work extremely hard to fulfil their objectives. We are hugely grateful
to our sponsors for their unwavering support and for the great deal of trust that
they put in us. We will continue to build on the great work of previous
generations and maintain strong relationships with our sponsors in order to
ensure the Society’s long-term success.
We are constantly driven to improve in every academic cycle, through the
development of existing areas of the Society and with the introduction of new
ones. We strongly believe employability must remain at the heart of the Society.
We hope that our careers events will enable you to make an informed decision
on your future career and that our activities will give you a way to exhibit your
skills to potential employers. This year so far we have seen the development of
the Commercial Law Open Day Series, the Allen & Overy LLP Commercial
Negotiation Competition, the Burges Salmon LLP Commercial Moot
Competition and the Alumni Network. Our new Introductory Freshers’ Programme integrated first years into the
Society quickly and we have also seen an increase in member engagement, from law and non-law students alike. It is
you, our members, who make Law Society what it is.
Obiter Dicta is an extremely important part of Law Society. A great deal of care, attention and hard work goes into
each edition. Particular appreciation must go to the sub-committee and our Obiter Dicta Editors, Jessica and Faizan,
who have dedicated their year to developing the magazine. I am impressed by the exceptional level of enthusiasm,
teamwork and commitment that they have demonstrated in the creation of this issue. A great deal of thanks must also
be given to the contributors. The standard of submissions was remarkably high and we are exceedingly proud to be
able to present them.
The ‘Legal Archipelago’ theme is an excellent portrayal of a connected legal world. The interplay between different
areas of law, and the context in which it sits, is what makes law such an interesting subject. I am particularly fascinated
by the globalisation of the legal profession and the legal issues that surround global business and politics. The articles
in this edition perfectly encapsulate this global element, as well as the relationship between different elements of the
legal sphere.
It is with great honour that I am able to contribute to Obiter Dicta. The magazine never fails to amaze readers with the
engaging topics and professional finish; I am confident that this issue will surpass expectations once again. ♦

Yours sincerely,

Megan McMellon
President of Warwick Law Society 2014/15

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Two months have passed since the Scottish Legally speaking, London’s Supreme Court would no
referendum was held on the 18th September and the longer have been the final civil court for the Scottish.
UK has gone ahead in its business as before. The The UK’s employment law, much of which is under
historic referendum posed the question: “Should European law, would have also been inapplicable to
Scotland be an independent country?” The Scotland as soon as results polled in as an
monarchies of England and Scotland were united independent Scotland would not have been an
under James VI of Scotland (James I England), and a immediate member of the EU. A new financial service
little more than one hundred years later in 1707 the system would have also needed to be adopted as
two countries united to form Great Britain. Since then, much of the UK’s regulations are driven by EU rules
devolution aside, governance of the United Kingdom and this is a similar case for competition law. It is
had extended from Westminster. clear, thus, that an independent Scotland would be
largely influenced by its membership to the European
Union.
With 55.3% of the Scottish public voting “No”, it
would be easy to view the referendum as if it had not
happened. After all, things have gone back to the way Unfortunately, the new Scotland may find itself facing
it was. Yet, it cannot be denied that this has formally obstacles if it were to enter the EU. Foreign politicians
opened up the question to future change particularly have been outspoken about their views against
with Scotland being promised more devolved powers Scottish independence, as a break from the UK would
from London. It would be beneficial therefore to have set the precedent for others such as the Catalans
picture the implications that the Scottish referendum to break away from Spain. Of course, retrospectively,
may have had on the United Kingdom had the results even without a ‘Yes’ victory, the Catalans have
gone the other way. conducted their own informal self-determination
referendum in early November.
EXAMINING
THE SCOTTISH REFERENDUM
by Cammy Cho
Had the Scots voted ‘Yes’, bearing in mind that Looking at the above, while the Scottish Referendum
Scotland’s GDP is one-tenth of the UK, proportionally had minimal consequences on a domestic level after
speaking it would assume £93bn of the UK’s debts. the question was rejected, it can be safely concluded
Naturally, the Scottish economy would have felt the that despite the majority of ‘No’ votes, it has spurred
disproportionate effects when compared UK’s on the movement for other separatist entities to act in
economy. An independent Scotland would have also the future.♦
meant the disbanding of the single economic unit in
which free trade and investment is possible.
Independent Scotland would have received a huge
benefit from the North Sea’s oil and gas reserves but
this would be volatile as it is likely there would be a
stronger dependency on it. The continuance of using
the sterling as Scotland’s national currency was an
option the ‘Yes’ campaign had considered, but this
would have been difficult to implement as both fiscal
and expenditure policies would not have been
decided by the Westminster Parliament.
There would have been an increase in tax and cuts in
to support the new country yet this may be what the
Scottish nation needs as new systems may be tailored
to meet Scotland’s specific needs. The current tax
system in the UK that is governed by a number of
treaties with other countries would not be applied to
independent Scotland and therefore Scotland would
not have the right to agreements such as withheld
interest rates.

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The Holiday Pay

Ruling and the
Prospect of a
“Brexit”

by Fiona Tam
On 4 November, the EAT (Employment Appeal Tribunal) announced a ruling involving three
holiday pay cases, namely Bear Scotland v Fulton and Baxter, Hertel (UK) Ltd v Wood and others
and Amec Group Ltd v Law and others.1 Instead of only receiving “basic pay”, UK workers can
now claim extra holiday pay based on calculation of regular “compulsory” overtime. Employers’
anxieties about payments “potentially backdated to 1998” have been alleviated by the ruling that
claims preceding a three-month gap between holidays are invalid, and workers cannot claim
payouts for the additional eight days of annual leave permitted by UK law. There are currently no
accurate figures for the possible number of claimants, but the government estimates that there
are five million workers who do voluntary or compulsory overtime.
The Possibility of a “Brexit”
UK employers will have to cope with these changes by deciding how to resolve claims, and may
choose to appeal against the decision in both UK domestic courts and EU courts in Luxembourg.
However, the second option may no longer be available if a “Brexit” occurs. Cameron has
announced that an in-or-out referendum on the UK’s EU membership will be held in 2017 if the
Conservatives win the May 2015 election. A “Brexit” would affect UK employment law, which is
derived from EU law, and it would be useless for UK employers to appeal against the holiday pay
ruling in EU courts. Much depends on whether the government will repeal the European
Communities Act 1972, which ensures the supremacy of European law. As the holiday pay ruling is
related to the European Working Time Directive, it is possible that the ruling itself will be greatly
affected if the European Communities Act is repealed after a “Brexit”.
The European Working Time Directive
The European Working Time Directive, which states that workers should receive four weeks’
holiday pay annually, is implemented by Working Time Regulations 1998 (SI 1998/1833). As
secondary legislation in the form of a statutory instrument, the Working Time Regulations 1998
would be rendered invalid if the European Communities Act were repealed. The holiday pay
ruling is a domestic application of the ECJ’s (European Court of Justice) recent rulings in favour of
payouts based on a worker’s “normal” salary, which now includes overtime, allowances, and
commission payments. The problem of commission payments has not yet been considered in the
UK, but a test case will be heard by the end of the year. A “Brexit” would call the holiday pay
ruling into question, since the rulings of the ECJ would act as a persuasive, but not binding force.
Conclusion
As a ruling greatly influenced by the ECJ’s decisions, the calculation of holiday pay would depend
on the government’s approach to reforming laws after “Brexit”. Instead of repealing the European
Communities Act, which would imply a reversion to the previous UK interpretation of “normal”
salary as “basic pay”, the government might choose to retain secondary legislation and address
certain laws by judging individual test cases. As a result, the situation may not change significantly
even if a “Brexit” occurs, but the complex relationship between EU law and UK employment law
indicates that the holiday pay ruling is far from conclusive.♦
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dishonor and shame their child has brought upon the
family.

As a result, these children often live terrible lives full of
violence and enslavement. Not only confined to sexual
slavery by their dominant partners, they are also forced to
w h e n dome stic servitude. It is hard to imagine the physical,
psychological and emotional impacts that are caused by
forced marriage on their victims as they are bound to
serve their spouse indefinitely. Any means of escape is

impossible for them due to the fact that they rely on their
spouses’ for survival and the fear of stigmatization and
m a r r i a g e discrimination that they may face in the community.
Learning becomes a luxury for them as they have been
deprived of the rights to access of basic education. Hence,
i s n o t
it is crucial for authorities to step in and regulate this issue
for the betterment of these neglected groups in society.

Many countries had made initiatives to control forced
a b o u t marriages. One of the most proactive initiators is the
United Kingdom. Back in 2007, Parliament passed the
Forced Marriage (Civil Protection) Act, which came into
effect in the subsequent year. This Act allows the courts to
issue a Forced Marriage Protection Order under the
l o v e . . . application of the affected victim or a third party to give
protection to the victim of forced marriage. Consequently,
in July 2014, the Anti-Social Behavior Crime and Policing
Act had been brought into implementation. Any person in
breach of this offence may be sentenced to prison for a
maximum of 7 years. This brings a powerful message in
by En Du terms of upholding freedom as part of human rights as
well as providing deterrence.
In the 21st century, we often perceive marriage as the
union of lovers and the consent of sharing of mutual On an international level, through the Human Rights
responsibility between the two parties in taking care of Office, the United Nations had been making recent efforts
each other. Only couples that truly love each other and to eradicate forced marriage. Last year, the Human Rights
are prepared for the challenges of constructing a family of Council passed a resolution that recognized forced
their own may venture to this stage. However, it is sad to marriage as a violation of human rights in an attempt to
say that most of the time the idea of love as a key for completely control and eliminate this issue. Early in March
marriage doesn’t apply to most cases. Countless women 2014, a documentary exhibition on photography and
and girls all over the world have been forced by their videos relating to child marriage also took place in
parents to marry a stranger whom they have not met and Geneva to bring this issue into the spotlight. Additionally,
have ended up living miserable lives. This is the true fate the United Nations also supported many campaigns
for girls who are the victims of forced marriage. organized by NGOs across the globe relating to this issue.
Last year, the UN supported a transmedia campaign
Not to be confused with an arranged marriage, forced called “Too Young to Wed” that is also aimed to spread
marriage occurs without the full and free consent of one global awareness of child brides in conjunction with the
or both parties. More prevalent in Asian and African Swiss Anti-Human Trafficking week.
countries, forced marriage mainly affects young girls of
age 18 and below. Based on the statistics by UNICEF, an Despite all of these efforts, it is impossible to say that the
estimated 10 million girls have been forced to marry states and authorities will ever be successful in eliminating
before the age of 18 each year to men who may be more forced marriage completely. Challenges such as the lack
than 3 to 4 times their age. If this trend persists until the of education and accessibility of information, the deeply
next decade, around 142 million girls will be married entrenched patriarchal society, high held individual beliefs
before they turn 18 – a statistic that is both staggering and in traditional practices as well as poverty has raised
unsettling. questions regarding the effectiveness of these measures.
Nevertheless, the public should cooperate with authorities
The reason behind its existence can be attributed to to ensure the effectiveness of the enforcements of these
elements of poverty, family interests, tradition and control. policies as the responsibility rests on the shoulders of
Equivalent to financial assets, the marriage of these young society as well.
children is being used as a method of improving the
family’s economic status and strengthening ties between So, when you are making your wedding vows next to
beneficial and potential allies. These families often someone you love, be grateful that you get the freedom
perceive marriage as a way to advance family interests of choice to marry the for love. Millions of people have no
while preserving family honor through the prevention of option but to live a life of inevitable suffering and
relationships that are deemed ‘unhealthy’ – all in the cost responsibility.♦
of sacrificing their children’s freedom of choice. In
extreme cases of defiance, honor killings also take place
where the family members commit homicide due to the
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