Services Negotiations in the Doha Round: Lost in Flexibility?

The World Trade Organization (WTO) rules for services trade,under the General Agreement on Trade in Services (GATS), arefar broader in policy coverage than their counterpart provisionsunder the General Agreement on Tariffs and Trade (GATT), reflecting,inter alia, the Agreement’s extension to cross-bordermovements of services consumers and factors of production. Atthe same time, the GATS is significantly more flexible in applicationthan the GATT. There are virtually no political sensitivities,protectionist or not, that could not be formally accommodatedwithin its structure. Moreover, the paucity of relevant jurisprudenceon key concepts and a yet incomplete rule-making agenda haveprovided additional scope for ‘creative’ interpretation.However, while flexibility was a sine qua non for the conclusionof the Agreement, given the diversity of institutional conditions,political concerns, and so on among participants, it has notbeen conducive to one of the key objectives: ‘early achievementof progressively higher levels of liberalization’. Thisarticle discusses possible approaches that, within the Agreement’scurrent structure, could promote the clarity, quantity, andcommercial relevance of services commitments and address remainingrule-making issues. However, there is no panacea. The challengeremains to find a reasonable balance between economically meaningfuldisciplines and their broad application across sectors, modesof supply, and WTO Members.     

Contract Negotiations and the Common Law: A Move to Good Faith in Commercial Contracting?

Classically a duty to negotiate commercial contracts in good faith has been seen as part of the civil, not the common, law world. Common law commercial lawyers have long resisted the lure of “good faith” as a contractual concept, despite engagement with civil law principles in harmonisation projects, by virtue of membership of the European Union and their use in international conventions such as the United Nations Convention on Contracts for the International Sale of Goods (CISG). This paper will examine whether this situation is changing, focusing on two common law jurisdictions—England and Wales and Canada. In England and Wales and the common law of Canada, case-law in the last 10 years has indicated a movement towards acceptance of express and implied duties of good faith in relation to contractual performance, see e.g. Yam Seng Pte Limited v International Trade Corporation Limited [2013] EWHC 111 (QB) and, most recently, Essex CC v UBB Waste (Essex) Ltd (No. 2) [2020] EWHC 1581 (TCC) in England and Wales; Bhasin v Hrynew 2014 SCC 71 and Callow v Zollinger 2020 SCC 45 in Canada. This paper will examine the extent to which these cases may open the way more generally for a duty to negotiate commercial contracts in good faith. It will examine the reception of these cases and whether they indicate (i) greater acceptance of “good faith” as part of contract law thinking and (ii) a possible extension of good faith into the pre-contractual period.

     

Evaluating the Long-Term Effects of Prisoner Reentry Services on Recidivism: What Types of Services Matter?

We analyzed data collected for a large multi-site evaluation of 12 prisoner reentry programs in 12 states to examine the impact of pre-release services on time to rearrest and number of rearrests up to 56 months post-release for male offenders. A two-stage matching quasi-experimental design was used to define the comparison groups and multivariate models were used to examine the relationships among service and program receipt and recidivism. Participation in the reentry program was associated with longer time to arrest and fewer arrests after release. However, the specific services delivered as part of the program showed modest or inconsistent impacts on recidivism. Services that focused on individual change were more beneficial than services that focused on practical skills and needs. Practitioners should consider careful sequencing of program and service delivery in prison, linking in-prison services to post-release assistance, and evaluating all services and programs for fidelity and effectiveness.     

Balancing autonomy and risk: a failure of nerve in England and Wales?

Specialised mental health legislation typically provides for the hospitalisation and treatment of those with mental disorders in the absence of their consent. The article examines the possible justifications for the existence of these special powers and argues that two of the most common justifications, the protection of the patient and the protection of others, do discriminate against those with a mental, as opposed to a physical, disorder. The relationship between mental health and mental capacity, or guardianship, legislation is then considered and possible ways forward are discussed with particular reference to the current reform debate in England and Wales.     

Public Services and the Internal Market: Building Blocks or Persistent Irritant?

Critics such as Fritz Scharpf maintain that in the EU, negative integration (abolishing national rules) by definition wins out over positive integration (adopting new EU rules). This claim is examined here regarding public services—both utilities and welfare services. In EU law, the (partly overlapping) relevant categories are as follows: (1) services of general interest (SGI) and (2) services of general economic interest (SGEI). The latter are provided by undertakings. SGI that are not also SGEI are subject only to non‐discrimination requirements: this covers most welfare services. SGEI must comply with the EU competition and state aid rules, which promotes liberalisation. However, a proportional exception is allowed in so far as necessary for SGEI to carry out their public tasks. Moreover, alongside liberalisation, EU regimes for public services have emerged that benefit citizens/consumers. In sum, public services can now arguably be seen as building blocks of the internal market.     

Enforcing WTO Obligations: What Can We Learn from Export Subsidies?

Export subsidies provide a good example for discussing someinteresting questions underlying the debate over reforming thecurrent system of remedies for violations of World Trade Organization(WTO) obligations. If the purpose of trade agreements is tomaximize economic welfare, discussion of violations of WTO obligationswill need to take account of the form of both the requirementand the remedy. The requirement could take the form of a standardor a rule and may be more or less complex. The remedy couldtake the form of a property rule or a liability rule. Further,both the level and the form of the remedy will be important.Each type of violation needs to be examined separately to determinewhether flexibility to adapt to new circumstances should comethrough the requirement or the remedy. In the case of exportsubsidies, the current simple rule prohibiting export subsidiesis likely optimal but the remedies which support this rule needto be reformed. They are currently both over-inclusive and under-inclusiveand do not provide sufficient flexibility or incentive for efficientadjustment. This article considers some alternative remediesfor export subsidies and discusses the general lessons for thedebate on remedies for violations of WTO obligations.     

Simultaneous Use of Public and Private Specialist Services as a Potential Strategic Behaviour in Access to the National Health Service: Is There a Pattern by Socio-economic Level?

Social Justice Research - Under national health services (NHS), non-urgent access to specialist doctors is not straightforward and sometimes leads to long waiting times. Consequently, some citizens...     

Malingering and Pain: is this a Major Problem in the Medicolegal Setting?

The term malingering has a negative connotation, in that it is considered to intentionally project exaggerated physical and/or psychosocial symptoms for the purpose of gaining some external rewards/secondary gain. The present article will review a number of misconceptions about malingering, as well as the inherent problem in objectively measuring this construct. It will be suggested that a more comprehensive biopsychosocial approach should be used to evaluate potential barriers to recovery, as well as suboptimal performance that may delay, or prevent, recovery over an expected time period for musculoskeletal pain disorders. Such an approach will eliminate the common misuse and misdiagnosis of the construct of malingering.     

Juvenile sex offenders: a group on its own?

There is some debate about whether sex offenders are similar to non-sex offenders. It is known that sex and non-sex offenders are heterogeneous groups. Comparative studies must take this heterogeneity into account. Based on an aggregated database, a study was conducted among adjudicated juvenile (sex) offenders. The sample consisted of juvenile male sex and non-sex offenders who had been subjected to a psychological assessment at the request of the judge or district attorney. The central question focused on the differences between juvenile sex offenders, in particular rapists and sexual assaulters (n = 57), child molesters (n = 55), and non-sex offenders: violent (n = 85) and nonviolent offenders (n = 80). The results demonstrated that sex offenders differ from non-sex offenders with regard to demographic characteristics, problem behavior, and personality traits. Some reference is made regarding future research.     

Cohabitation in Europe: a revenge of history?

Unmarried cohabitation is often seen as a radically ‘new’ phenomenon, originating in the 1960s, but in fact it has long historical antecedents. The question is, however, whether traditional and modern cohabitation are comparable and whether we can speak of persistence. This article offers a literature review on cohabitation in Europe, with the focus on persistence over time, integrating the results of a 2013 conference on this topic. What sources are available to confirm or reject such persistence? How should we understand persistence? In terms of the motivations of unmarried cohabitants? Or in terms of the acceptance of the community at large? And if no real persistence is found, does this mean that European cohabitation since the 1970s truly represents ‘new’ behaviour? We show that, on the regional level, the legacy of the past is still visible in factors affecting the timing and frequency of marriage of cohabiting couples. These factors are a mixture of regional socio-economic constraints, the relative cultural importance attached to marriage, the religious history, and the level of secularization.