André Nollkaemper , National Courts and the International Rule of Law, Oxford: Oxford University...

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Robert Thomas, Administrative Justice and Asylum Appeals: A Study ofTribunal Adjudication, Oxford: Hart Publishing, 2011, 342 pp, pb £50.00.

This excellent work offers both a study of the asylum appeals system in theUnited Kingdom and a contribution to the broader stream of scholarship onadministrative justice. As a particularised study of asylum appeals in the UnitedKingdom, the book is a highly readable account of the realities of such appealsup to the time of writing, May 2010. It successfully performs the difficultdouble act of providing both an engaging introduction to the system’s opera-tion and considered detail and analysis of interest to those familiar with thejurisdiction.

In its second,more general, aspect, the work is in the tradition of administrativelaw as institutional design. In 1999,T. G. Ison, cautioning against the promotionof general principles as ‘panaceas’ to the problems of the administrative statewrote:‘What then is the best approach? I believe that the public interest is betterserved if “administrative justice” is perceived, not as a subject on its own, and notas a rationale for some controlling overlordship, but as a body of thought that canbe drawn on in the design of a particular system, such as income tax, socialsecurity, the regulation of road transport, or occupational health.’ (‘“Administra-tive Justice”: Is it Such a Good Idea?’ in M. Harris and M. Partington (eds),Administrative Justice in the 21st Century (Hart, 1999) 21, 33)Thomas endorses thischaracterisation of administrative justice (12), mindful of the inherent difficultiesand peculiarities of asylum appeals.The two aspects of the work, as a study of asubstantive area and as a contribution to the literature on administrative justice,are interdependent.Thomas outlines the various sources of influence on asylumappeals: the legal framework, the bureaucratic goals and methods, the politicalpressures and the resourcing constraints. The study is grounded in empiricalresearch on the appeals process undertaken in the period 2007–9, centrally theobservation of 182 appeal hearings, 84 per cent of which were initial appealsagainst refusal decisions. This was supplemented by interviews with some themain actors involved in the appeals process: immigration judges, representatives,country experts and others. It evidently, and extensively, draws on a much longerperiod of engagement with, and scholarship on, asylum appeals.

Thomas’s inquiry concentrates on the quality of an administrative-legalprocess. His concern is how best to accommodate the four ‘core values’ heidentifies as criteria for the quality of such a process: ‘its propensity to makeaccurate decisions; the fairness of the procedures by which decisions are made;the resources needed to fund the decision process; and the timeliness of decision-making’ (12–13). Considerations of timeliness and resourcing inevitably exert amarked influence on the system’s design and operation, and need to be factoredinto an assessment of it. Further, the inclusion of ‘managerial’ as well as ‘justice’criteria is necessary to keep both the collective interest in policy implementationand individual justice concerns in view.Thomas details the inevitable trade-offs

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© 2012The Authors.The Modern Law Review © 2012The Modern Law Review Limited. (2012) 75(4) MLR 674–696

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between these core values, showing how these trade-offs inform every facet ofthe appeal system’s design and operation.The guiding aspiration is not a perfectsystem in the sense that ‘every claimant so entitled is granted asylum irrespectiveof the costs imposed or the time taken’, but of a system ‘able to produce goodquality decisions with the limited funds available and subject to the time limitsimposed’ (283).

WhileThomas eschews any express position on the broader politics, the workis imbued with the awareness that the position of most applicants is ‘an unhappyand precarious one’ (30).Those who fear persecution and ill-treatment are, in aperverse sense, the lucky ones as they have a good claim to asylum, whilepersecution and ill-treatment are only some of the risks that applicants face onreturn (30–31).

The administrative justice literature informs Thomas’s central argument,namely that there is a need to shed the assumption that administration andadjudication must be kept ‘wholly separate and distinct’ (293). Against such aseparation, he argues for the recognition of adjudication, or at least adjudicationby tribunals (which can substitute their own decision for that of the originaldecision-maker), as a form of policy implementation. This characterisation oftribunal adjudication reflects the view, newly prominent with the 2007–8 tribu-nal reforms in the United Kingdom, that tribunal decisions are part of the‘delivery chain’ by which policy is implemented (10). Resistance to this charac-terisation on the grounds that it threatens tribunal independence is misguided,Thomas argues, since it fails to appreciate that a body can be independent and stillpart of the broader policy process, in the sense that it can substitute its owndecision according to rules which embody particular policy goals (9).

The argument that adjudication constitutes a form of policy implementationreads at times as an exercise in taking adjudication off its pedestal, at least in itsadversarial, court-centric, form. But Thomas does not deprecate adjudication.The interest of his argument lies in the conjunction of his characterisation oftribunal adjudication as a form of policy implementation with his appreciation ofthe values of adjudication. He is clear that, for as long as we remain committedto an individualised determination of status there will be no real alternative toadjudication. But rather than adopt a tone of resignation, he is something of achampion of adjudication’s virtues. He argues that difficulties that beset theasylum appeals process are best addressed through institutional innovation, witha particular focus on the need to remodel adjudication. The arguments forinstitutional innovation are coupled with a clear affirmation of adjudication’smerits, central among which is the way adjudication enables individuals toparticipate in the implementation of government policy.

The first three chapters of the book frame the study, respectively providing ageneral introduction, an outline of the nature and structure of asylum decision-making, and an account of the resources needed to support good asylumdecision-making and the contribution of adjudication to this end. Thomasconveys well the intractable difficulties encountered when deciding if a claimantis entitled to refugee status. He juxtaposes the importance of accuracy to anyassessment of the quality of decision-making with the difficulty of determiningwhether or not a decision was ‘accurate’. In the overwhelming majority of cases,

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© 2012 The Authors.The Modern Law Review © 2012 The Modern Law Review Limited.675(2012) 75(4) MLR 674–696

we do not know whether an unsuccessful appellant will be persecuted, orwhether a successful appellant, on return, would have been safe (70).

The third chapter of the book devotes itself to the impact of the managerialcriteria, resourcing and timeliness, on the appeals system.The author’s concern,expressed throughout the chapter, is that these very real constraints on the designand operation of the system be confronted and addressed.While acknowledgingthe unattractiveness of the question ‘how much money should be spent toproduce good decisions?’ he confronts us with its unavoidability.As noted above,within the more general rubric of institutional innovation, a key concern is withthe need to remodel adjudication. More particularly, it is in chapter 3 that thequestion of the mode of adjudication – adversarial, inquisitorial or ‘enabling’ – issquarely raised. One of Thomas’s central themes is the need to reconsider thejurisdiction’s ‘cultural ties’ to an adversarial approach (132), with arguments for awholesale shift to a more inquisitorial procedure surfacing at a number of pointsin the book.

Chapter 4 is the first of the chapters to consider the empirical data gathered.Thomas considers the stages of the appeal process, the issue of representation andits absence, and the impact of performance targets. He discusses the difficulty ofrunning an adversarial system in a context of variable, and often absent, repre-sentation. In 2009, 20 per cent of hearings were without Home Office repre-sentation (123), unrepresented appellants are almost as common, and legal aidfunding is tight. When considering questioning by immigration judges in thiscontext, Thomas first floats his ‘most radical’, and clearly preferred, responseto this state of affairs, ‘a wholesale and decisive move toward a more fullyinquisitorial approach’. It is also in this context that he raises the issue of legalculture, and the long shadow of ‘the judicial paradigm of formal, adversarialprocedure’ (121).

Thomas orients his study around the fact that the principal problem forasylum decision-makers is not one of law, but how to make correct findings offact.The relevant facts in turn divide between the particular and the general: theparticular circumstances of the refugee applicant’s case, and the general social andpolitical situation in the country from which refuge is sought.This classificationdictates the structure of the work, with chapters dedicated to the central issue inthe assessment of a particular applicant’s story,namely his or her credibility,on theone hand, and the development and assessment of country information and thecountry guidance system on the other.

Credibility assessments are introduced as the single most important determi-nant of asylum cases.The central message ofThomas’s chapter on credibility is theabsence of any reliable way of distinguishing truth from falsity.The discussion isa careful one, sensitive to the traps and pitfalls of determining credibility.He closesby reiterating Sir Stephen Sedley’s description of the particular form of impar-tiality required in a context characterised by a lack of hard evidence and culturaldifference, an ‘abstention from pre-ordained or conditioned reactions to whatone is being told’ (165).The book persuasively shows that the difficulties involvedin assessing credibility are inherent in the process.These are issues that have to beaccepted in the exercise of providing surrogate protection to those entitled to itunder legal criteria.

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© 2012 The Authors.The Modern Law Review © 2012 The Modern Law Review Limited.676 (2012) 75(4) MLR 674–696

The issues attending the production, assessment and application of countryinformation are considered in Chapter 6. He is clear that a quality adjudicationprocess requires a higher standard of country information than is currentlyavailable. In the context of generating and considering country information, heraises the difficulties of judges undertaking research on their own initiative in anadversarial context, where this might be seen to compromise their neutrality(181).

Under the country guidance system, senior immigration judges produceauthoritative guidance on recurring country issues. Formally adopted in 2004,at the time of writing this review there were 328 country guidance decisions.In chapter 7, on the country guidance system, the place of adjudication in thedevelopment of policy, in contrast to its implementation, is explored.The countryguidance system provides a good illustration of a novel adjudicative technique,directed at providing guidance in factual issues.Thomas is sensitive to the delicatebalance between predictability and uniformity that any system of factual guid-ance needs to maintain, usefully suggesting that the task is to ‘pinpoint theoptimum degree of binding effect’ (214). He provides a detailed case for thebenefits of certain features of adjudication, as opposed to straightforwardadministrative rule-making, in the development of policy. These features are‘independence, open-procedures and detailed reason-giving’ (233), all of whichenable participation by, and responsiveness to, the individual in policy making.These features of adjudication also underlie the case for adjudication in policyimplementation. Again, on the limitations of an adversarial mode of appeal,Thomas asks whether the development of country guidance requires a modifi-cation of adversarial procedure.For country guidance to work, the tribunal needsto have all the relevant material before it, regardless of whether it has beenprovided by the parties (208).

Asylum appeals exemplify an adjudication system characterised by a high rateof onward challenge. In the United Kingdom, the rate of onward challengeagainst initial appeal decisions ranged from 67 per cent in 2005–6, to 56 per centin 2007–8, with 89 per cent of such challenges lodged by appellants (239, citingTribunal Service, Ministry of Justice). Chapter 8 considers the impact of suchonward rights of challenge on the system as a whole, and the value of suchchallenges. Thomas identifies the chief cost of onward challenge as the delayit occasions, with caseload concerns reaching their apotheosis in the asylumcontext. In considering the relationship between courts and tribunals, he queriesthe conventional assumption that higher courts produce decisions of betterquality than those lower in the hierarchy in two respects: that it pays insufficientattention to the different adjudicatory functions best performed at different levelsof the hierarchy; and that it dismisses the possibility of a cross-cutting hierarchybased on the distinction between specialist and generalist judges.The exercise ofsome degree of ‘caution’ by the higher courts on appeal is regarded as essential tothe development of the Tribunal’s jurisdiction, while Thomas, quoting thecurrent President of the Upper Tribunal (Immigration and Asylum Chamber), isclear that this latitude will have to be earned.

The final chapter is divided between ‘potential generalisations’ foradministrative-legal processes more generally, and a reconsideration of the

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asylum appeals system.The generalisations are approached in a cautious fashion,in keeping with the view that to proceed by general prescription, shorn ofcontext, ‘would be to seek law reform through the methodologies of a bull in achina shop’ (Ison, ibid, 34). The general conclusions are a summation of keythemes of the work: the need to understand the work of administrative tribunalsas part of the larger process of policy implementation; the inevitability oftrade-offs between the criteria for decision-making quality; and the inadequacyof a ‘red-light’ conception of law to explain the work of tribunals. A minorcriticism of the last of these themes is that the ‘red-light’ conception Thomasoutlines is something of a straw man. His target is not given flesh and blood byreference to a particular work or author, except indirectly through the ‘red-light’characterisation.

Thomas separates his proposals on how administrative adjudication should beremodelled in asylum appeals into three bundles, sorted according to the degreeof change they would involve. His faith in adjudication comes out most clearlyin his concluding set of proposals, comprised of those requiring wholesaleinstitutional reform. He advocates replacing the initial Home Office decision onrefugee status with adjudication before a judge (or broader panel),operating in aninquisitorial mode. The underlying assessment is that adjudication promises abetter means of achieving quality decision-making than straightforward admin-istration. He argues that in a jurisdiction characterised by a uniquely high rate ofonward challenge, there would be gains in overall efficiency, as well as decisionalquality, in introducing adjudication at the outset, with appeals only lying onerrors of law. His diagnosis of the inappropriate weight currently placed onappellate review galvanises an argument for the transformation of front-linedecision-making to incorporate the basic legal technique on appeal, namelyadjudication, suitably remodelled along inquisitorial lines.

A work immersed in the particular context of asylum appeals, AdministrativeJustice and Asylum Appeals attends to the detail of the design and operation of therelevant tribunal processes, evaluating them against justice and managerial crite-ria.As a work on tribunal adjudication,Thomas argues both for an appreciationof the limits of what adjudication can achieve, and for the benefits of insertingadjudication into the administrative process of determining eligibility for asylum.He makes a compelling case on both counts.

Rayner Thwaites*

Kevin Coates, Competition Law and Regulation of Technology Markets,Oxford: Oxford University Press, 2011, 405 pp, hb £145.00.

At a time when firms which operate in areas involving high technology haveincreasingly become the subject of antitrust scrutiny in the European Union, the

*Law Faculty, Victoria University of Wellington.

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publication of a book which deals with the application of (predominantly EU)competition law to technology markets may not come as a surprise.This state-ment however does not do justice to the achievement which Coates’ workrepresents. Indeed, while the topic is not new as such and, almost inevitably, agreat deal of the book relates to the Microsoft antitrust investigation on eitherside of the Atlantic, the book nonetheless represents a welcome change from theusual coverage of the difficulties faced by competition law in the context ofdynamic and innovative intensive industries.To begin with, Coates deliberatelytakes a step back from the sometimes encountered focus either on one particulartechnology sector (such as the software industry) or on one particular aspect ofsuch sectors (such as intellectual property rights) and offer a more holisticcoverage of the topic. In this respect, his book might even be considered the firstcomprehensive English language study of the subject, as Coates undertakes awide-ranging analysis of the various aspects of law and economics which interactor, indeed, which might be considered to be at odds when competition law isapplied to technology markets. Coates’ approach might best be described aspatch-work insofar as he analyses the various relevant aspects of law and tech-nology in a somewhat selective manner. The use of the term ‘selective’ hereshould however not be understood as criticism – far from it – rather, such anapproach is to be welcomed as it recognises that no area of law exists in isolation;a fact which Coates not only expressly acknowledges at the beginning of hisbook (1.1.2) but which is also reflected in the stated aim of the book to act as asupplement to, rather than as a replacement of, the existing academic literature onthe subject (1.03 and 3.13). Put differently, Coates does not purport to offer asubstitute for the study of the particular legal areas which might be ‘touchedupon’ by antitrust scenarios involving technology markets. Yet this fact aloneis not what makes this book an interesting and rewarding read for academicsand practitioners alike.

Another factor which makes this book stand out is the perspective it appliesto the subject; it is, as Coates points out himself, a book about law, written bya lawyer (1.06). Coates also emphasises the fact that ‘a little more than half ofthe book is about competition law’ (1.07); the need for this express and almostapologetic statement is understandable in times where economics seems to bethe driving force in competition law. However this is not to say that Coatesdenies the importance of economics as a discipline for competition lawanalysis; quite the opposite is true, as Coates acknowledges, discusses andthereby ultimately demonstrates the importance of economics for competitionlaw practice throughout the book. Yet, despite the continuous acknowledge-ment of the importance of economics for competition law practice, Coatesneither merely suggests that economics should be applied in blind faith so thatone particular economic approach to competition law will definitely fit allcompetition laws in this world, nor does he suggest that the status quo in thisrespect can be considered satisfactory. In fact, Coates argues to some extentthat the current incorporation of economic theory into competition law’sapproach to technology markets is not good enough (eg at 2.68 with regardto behavioural economics). In this context, mention should also be madeof the fact that Coates further hints at the possibility of non-market focused

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competition law analysis as has recently been discussed in economic theory (egat 3.145).

As indicated above, Coates’ study involves a comparison between theEU and US ‘regulatory’ approaches to technology markets which appears –understandably – to focus on the UK perspective.Yet, and this may be the onlyreal criticism which might be directed at this book, this reviewer cannot helpthinking that, in view of the necessary European angle of the subject and whenone considers that Coates works for DG Competition in Brussels, the occasionalconsideration of, or even reference to, continental European literature on thematter would have made Coates’ work stronger without distracting from its coreargument. Equally, it would have been beneficial for academics and practitionersalike if some references to different views in the academic literature and/orcompetition law practice had been included, instead of merely being alluded to(eg at 4.43 with regard to the point that ‘many’ consider the EU’s approach torebate systems to be ‘simplistic’). However, it has to be said that these are onlyminor points of criticism which, especially as Coates is not afraid of voicingcriticism directed at the Commission’s application of competition law to tech-nology markets (eg at 4.124 ff and 6.253 with regard to the Commission’sEnforcement Priorities Guidelines), do not detract from the fact that Coates’book represents a valuable contribution to the ongoing debate about the appli-cation of competition law to dynamic, innovation intensive industries. Forexample,mention should be made of the inclusion of special ‘outlook’ sections atthe end of chapters 4 to 9 in which Coates highlights some of the more difficult,unresolved and/or emerging legal issues (eg at 7.151 regarding issues involvingproduct design). In addition, in chapter 9, Coates also analyses the interfacebetween competition law and data protection/privacy, a novel area with regardto the question of application of competition law (eg at 9.148 with regard towhy and where data, data protection and/or privacy might raise competition lawconcerns).

Some conclusions drawn by Coates might not be surprising – such as theconclusion that the European Union is more interventionist than the UnitedStates with regard to the regulation of certain economic sectors (8.354) – butneither this fact nor the afore-mentioned minor criticism detracts from theoverall positive evaluation this book rightly deserves.Rather, the express coverageof, and reference to, areas which have already received quite comprehensivetreatment elsewhere (such as S.Anderman and H. Schmidt, EU Competition Lawand Intellectual Property Rights:The Regulation of Innovation (Oxford: OUP, 2011)regarding chapter 5) makes this book what it is: a comprehensive and valuablestudy of the application and applicability of competition law in the context oftechnology markets.

Kathrin Kühnel-Fitchen*

*School of Law, University of Northumbria.

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André Nollkaemper, National Courts and the International Rule of Law,Oxford: Oxford University Press, 2011, 304 pp, hb £70.00.

It would perhaps not be too great an overgeneralisation to say that interna-tional lawyers have always cared about how their law – their discipline – faredbefore national courts. For some, perhaps more existentially insecure, validationof their discipline by established national courts inherently made it appearmore firm and less utopian. For others, national courts could serve as thedevelopers and the enforcers of international law and subject the politicalbranches of their state to international law from within. Some parts of inter-national law are of course by their very design best suited to application bydomestic courts, as is the case for instance with the law of immunities. But formore ambitious international lawyers, domestic courts can be and should bethe agents of international law generally, not just of some of its very specific andparticular parts.

The literature on the relationship between international law and domestic lawis unsurprisingly vast; the one on the role of domestic courts only slightly less so.Making a truly original contribution to this body of scholarship is thus hardly aneasy task. It is nonetheless a task that André Nollkaemper’s fine new bookmanages to perform admirably.

Nollkaemper’s book is not one of breathtaking novelty, but one of synthe-sis. Its first strength is its angle. Rather than opt for a more traditional andwell-trodden ground of the role of national courts in developing and enforcinginternational law, he examines their contribution to developing the rule of lawat the international level. As Nollkaemper rightly emphasises, domestic courtsfind themselves in a double bind, in the grip of a basic dilemma on ‘how theinternational legal order can combine, on the one hand, the need to rely onnational courts to provide elements of an international rule of law and, on theother hand, the essential connection between national courts and their nationalpolitical and legal order’ (14).Nollkaemper proceeds to analyse the various factorsthat influence how national courts try to extricate themselves (or not) from thisdouble bind – fidelity to both the international and their domestic orders, whichmay at times present competing demands.

Part I of the book thus examines the conditions under which national courtscan review the exercise of public power against international law, namely ques-tions of jurisdiction, judicial independence, applicable law, and standing. Part IIdiscusses several techniques devised by national courts in applying internationallaw, such as direct effect, consistent interpretation, and remedies and reparation.Part III shifts the perspective of analysis from the domestic to the internationallegal order, by examining the effects that the decisions of national courts mayhave within it. It thus deals with questions of fragmentation, authority of deci-sions, and the review by domestic courts of the compatibility of internationalobligations against rule of law principles.

Clearly, the scope of the book is very broad. It covers a great number of issues,across a wide range of different municipal legal systems.The price to pay for suchbreadth is that at times some parts of the work feel a bit disjointed,while at othersthe analysis may be somewhat lacking in depth. For example, the claim made in

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the book (50) that non-justiciability or political question doctrines endangerjudicial independence is at best dubious. Such doctrines are usually invented bythe courts themselves precisely because they want to preserve their independenceand their (supposedly) apolitical character by avoiding getting embroiled indifficult matters of foreign policy.

That said, the virtues of the clarity and comprehensiveness of the book’sanalysis are many, as for instance with the discussion of the concept of self-execution of international obligations in domestic law,conceptualised either as anissue of direct effect of international law or as one of the standing of individualsto bring a particular claim under international law before domestic courts(121–122).Chapter 10,on the various conceptions of authority of national courtjudgments, and chapter 11, on national courts restraining the supremacy ofinternational law on rule of law grounds (for example, with respect to targetedsanctions against suspected terrorists ordered by the UN Security Council),are particularly illuminating.

A further strength of the book is the breadth of the research on it is based.Indeed, to say that it is remarkably well-researched would be to fail to do itjustice. As the leader of the research project on International Law in DomesticCourts (ILDC), with case law from 80 different jurisdictions available throughthe Oxford Reports on International Law database,André Nollkaemper was ina uniquely suitable position to write this book. It references a wealth of nationalcase law, a lot of it previously unexamined, on points both important and trivial.For instance, it warmed this reviewer’s heart to see cited an obscure judgmentof an even more obscure court in the then equally obscure and now alsodefunct state union of Serbia and Montenegro (62, fn 94).This means that inits area the book is simply unmatched as a reference work. On the negative side,however, this also means that the book suffers from a severe case of ‘cite-itis,’with almost half of every page consisting of footnotes, at times also burdened byexcessive quotation, thus rendering the book less readable than it perhaps couldhave been.

This is, in sum, an excellent piece of scholarship. It needs to be noted that itis quite openly committed to a particular ideological view – what advances theinternational rule of law is usually what advances the power of international lawwithin domestic legal systems.While that ideological view is probably shared bymost international lawyers, it may not be as appealing to others. Even on thatpoint, however, Nollkaemper is sufficiently cautious to underscore that at timesinternational law needs saving from itself if it is to realise the normative ideal ofthe rule of law.And in the final analysis, his conclusion is surely sound, that onlystrong courts, operating in countries which are themselves committed internallyto the rule of law, can truly make a systemic contribution to the international ruleof law.

Marko Milanovic*

*School of Law, University of Nottingham.

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José Alvarez, The Public International Law Regime Governing InternationalInvestment, The Hague: Pocketbooks of The Hague Academy of InternationalLaw, 2011, 502 pp, pb €18.00.

Professor José Alvarez of New York University Law School brings a deepunderstanding of public international law to the rapidly evolving and highlycontroversial discipline of international investment law, a field that is oftendescribed as a lex specialis and as such isolated from scrutiny by the broader lens ofpublic international law.International investment law is enshrined variously in themore than 3000 bilateral investment treaties (BITs), many of which have beenconcluded in the last ten years, and the growing jurisprudence of internationalarbitration tribunals, including that of the International Centre for the Settlementof Investment Disputes (ICSID), established under the Washington Convention.While traditionally BITs and the arbitrations that enforced them had beendesigned to serve the interests of capital exporting states and their multinationalcorporations seeking strong protections for property rights, some recent BITshave been concluded at the behest of emerging markets such as China, nolonger a developing state ripe for exploitation by the West.The content of theseinstruments has been modified accordingly, allowing for greater policy control byhost states in spheres such as environmental protection as well as national security,the latter of which is now controversially ‘self-judging’ by the instigatinggovernment.Alvarez captures this transition through careful analysis of a numberof treaties, focusing primarily on the changes observed in the more recentiteration of the United States Model BIT. This instrument has become lessinvestor-friendly just as the US has begun to receive foreign investment fromabroad, appreciating the dangers of surrendering its economic sovereignty to apanel of arbitrators.

Alvarez adopts a neutral stance in his analysis of modern international invest-ment law, an approach that is refreshing most notably in his description of thehighly critical stance taken by many academics in the field who continuallydisparage the regime as a system of global administrative law designed by privatecommercial lawyers and which is insensitive to the broader needs of society.Muchscholarship has been myopically harsh in this regard.Alvarez deftly observes howthe supposedWestern-biased body of international investment treaties now servesthe interests of emerging markets that have begun to export capital to developedcountries, rather than depicting them as slaves to their colonial masters. Heskilfully refutes a number of authors’ work directly, notably Guzman, who hadargued that developing states had signed BITs out of fear of being left behind.Alvarez argues that it was the failure of command economies to alleviate povertyand to stimulate growth that led to many developing states accepting WesternBITs.These countries believed, in many cases correctly, that freer markets andWashington Consensus policies would attract investment and assist in economicdevelopment. To his credit, Alvarez avoids any heavy-handed rhetoric on thedemise of capitalism in light of the recent financial crisis and the correspondingneed to re-conceptualise the role of investment in economic progress.This bookis too rigorously analytical to resort to simplistic Marxist panaceas that characterisemuch of the recent commentary in this highly complex discipline.Still,while rich

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in historic narrative about the encroachment of multinationals on the UN’s NewInternational Economic Order, the book would have benefited from a discussionof the damaging expropriations suffered by Western firms in the Middle Eastwhich underpinned many of the developments in the field.

The discussion of ICSID arbitration decisions relating to the Argentinefinancial crisis of the early 2000s is somewhat lengthy; however,Alvarez justifiesthe inclusion of this material as a suitable laboratory in which the consistencyof investment jurisprudence can be evaluated objectively.The focus on the fairand equitable treatment standard is also protracted, and while it is an excellentdiscussion of this highly important concept, this section of the book offers limitedoriginal insight and is unduly burdened with citations.The author’s expertise in thefield of investment law is evident through his fastidious attention to the text ofinvestment treaties as well as the reasoning of arbitration tribunals.His understand-ing is highly nuanced, often positioning legal commentary in the broader debateof international politics,most frequently with a US focus, perhaps unsatisfactorilyfor a European audience. His treatment of WTO law is somewhat less sophisti-cated, as he dwells exclusively on the GATT and its role in illuminating tests ofproportionality and national security, sometimes ignoring the many importantinvestment-related provisions in otherWTO instruments like the GATS.

This book makes a two-fold theoretical contribution to the growing body ofacademic literature in the field of international investment law.First, it emphasisesthe critical importance of general public international law, including customaryinternational law, to the law governing foreign direct investment. Many com-mentators are contrastingly pre-occupied with BITs, often straining this analysisto conclude that there is a ‘regime’ of international investment law from the textof a handful of instruments. Alvarez rightly insists that public international law,including the Vienna Convention’s principles of treaty interpretation and con-cepts such as necessity and proportionality must also be acknowledged in orderfully to grasp the discipline. Secondly,Alvarez cautions readers that internationalinvestment law is undergoing a dangerous process of ‘fragmentation’ in whichthe international rules governing foreign direct investment appear to be shiftingtowards specialisation, detaching from general public international law as invest-ment treaty language converges towards unity and the claims brought by investorsagainst host states are increasingly standardised.This process raises the spectre ofconflict with other international regimes, such as trade and human rights infavour of excessive commercialisation at the hands of private arbitrators. In orderto deal with this transformation,Alvarez wisely recommends a contextual appli-cation of general rules of international law to fill in the gaps of discrete legalregimes. Books such as this one provide a useful illustration of how this blendingof sources of international investment law might be achieved, a commendableand highly valuable service to the discipline that should be well-received byacademics and practitioners.

David Collins*

*The City Law School, City University London.

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Conor Gearty and Virginia Mantouvalou, Debating Social Rights, Oxford: HartPublishing, 2010, 201 pp, hb £15.75.

Social rights are at a critical juncture in the UK.Despite the fact that social rightsare binding on all branches of government as a matter of international humanrights law, political and academic discussion of such rights has tended to focus(indeed,fixate) on the role of the courts, rather than addressing the obligations ofthe elected branches of government.

Social rights have historically been largely excluded from parliamentary pro-cesses and executive decision-making. For instance, while the UK Treasury’sguide to appraisal and evaluation states that a range of international human rightsconventions, including those enshrining social rights ‘should inform the devel-opment of policy’ (HM Treasury, The Green Book: Appraisal and Evaluation inCentral Government, Annexe 5, 95), there is no evidence that this occurs inpractice. In the contemporary context, despite growing evidence of the delete-rious impact on social rights of the Conservative-Liberal Democrat administra-tion’s austerity agenda, the Government has resisted carrying out an adequatehuman rights impact assessment of its post-economic crisis austerity measures –a fact that suggests a clear reluctance to build social rights into decision-making.

At the legislative level, the UK Government has been reluctant to contemplatethe domestic incorporation of justiciable social rights, in either a national orregional Bill of Rights. Furthermore, law is being used to entrench and imple-ment austerity. The cuts and amendments to specific social security benefitsinstigated by the Welfare Reform Act 2012 and other measures are set to have adeleterious impact on the right to social security and housing and health rights.This is particularly so with regard to the enjoyment of these rights by vulnerablegroups such as people with disabilities and children. In addition,cuts such as thoseto legal support for victims of domestic violence proposed in the Legal Aid,Sentencing and Punishment of Offenders Bill 2010-11 have significant, albeitmore indirect, implications for the enjoyment of a range of social rights, includingthe rights to an adequate standard of living and housing.

Given the topical nature of social rights, a book specifically focused on theissue by two prominent human rights scholars is to be welcomed. Forming partof Hart Publishing’s ‘Debating Law’ series, Gearty and Mantouvalou’s respectivesections are written as separate pieces.This results in a broader range of issuesbeing addressed than would be the case if the book merely adopted a classic‘response pieces’ format. It also obviates the risk of a somewhat insularinter-author discussion. The authors engage with a large number of the samethemes from very different perspectives which gives the book a satisfying stylisticcohesion.

Gearty outlines three key propositions that underline his approach to socialrights. His first claim is that the idea of social rights is important and that suchrights deserve to be respected, protected and promoted. His second assertion(which will come as no surprise to readers of his previous work) is that the valueof social rights lies principally in the political arena as this is where such rights canmore effectively be realised. His third proposition is arguably the most contro-versial: namely, that an over-concentration on the legal process is the ‘least

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effective way’ of securing social rights (1). Reflecting these foci, he splits hiscontribution into three parts: ‘Why Care?’; ‘How Should We Care?’; and ‘HowCan We Tame the Lawyers?’.

Gearty opens the book by arguing for the existence of an inherent human‘propensity to care’ for others,even where those others are people with whom wehave no relationship or connection (20). In his view, the best ‘commitmentgadget’ available in terms of embedding caring in a global society is respect forhuman rights (12). Having considered the evolution of this ‘instinct’ from theperspective of political philosophy,he argues convincingly that the principles thatguide the framing, interpretation and enforcement of human rights render theman appropriate vehicle for the concretisation of the societal commitment to care.

The second part of Gearty’s work builds on the need for human rights to beembedded in a culture ‘before human rights can be guaranteed the kind oftraction they need to succeed’ in practice (22). It is hard to imagine anyonedisagreeing with his assertion that ‘the primary way of embedding . . . socialrights . . . in any given culture is via the political process’. Indeed,as Gearty notes,the central role of the political process vis-à-vis social rights realisation is madeclear by the principal international social rights instrument, the InternationalCovenant on Economic, Social and Cultural Rights.That said, although Geartyidentifies those elements of ICESCR that render it primarily an instrument forthe elected branches of government, he appears not to recognise that so too havesocial rights advocates.

Gearty’s concern with the ‘lure of the legal’ is evident throughout the book.However, despite his preference for the political implementation of social rights,he arguably overemphasises the role of the law and lawyers in the context ofsocial rights activism. While he correctly highlights the central role of lawyerswith regard to human rights generally postWorldWar II, he fails to acknowledgethe growing body of work of political scientists, development scholars andeconomists focusing on social rights. (See eg T. Landman and E. Carvalho,Measuring Human Rights (NewYork: Routledge, 2010); R. Balakrishnan, D. Elsonand R. Patel (eds), Rethinking Macro Economic Strategies from a Human RightsPerspective (New York: Marymount Manhattan College, New York, 2009); S.Randolph, S. Fukuda-Parr and T. Lawson-Remer, ‘Economic and Social RightsFulfillment Index: Country Scores and Rankings’, Economic and Social RightsWorking Paper Series, Human Rights Institute, University of Connecticut, No.11of 2009; and L. Minkler, ‘Economic Rights and the Policymaker’s DecisionProblem’ (2009) 31 Human Rights Quarterly 368). Such work demonstrates thegrowing range of actors that are focusing on social rights from a non-judicialperspective.Tools such as indicators, benchmarks and social rights-based budgetanalysis, which are primarily directed at monitoring and bringing about theintegration of human rights with governmental functions, go far beyond thehistorical model of the social rights proponent as lawyer.Thus, Gearty’s portraitof contemporary social rights activism as primarily focused on justiciability isonly partial in nature.

Gearty is right to criticise the fixation on justiciability as the benchmark forsocial rights. However, his suggestion that judicial intervention is particularlyattractive to social rights activists simply because it provides a ‘quick and full fix’

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with regard to human rights violations (33) ignores the extensive work done bysocial rights advocates and academics that demonstrates strong awareness of theshortcomings of using the law to advance social rights in the absence of broaderpolitical buy-in.Even where courts are responsive to such claims – and there is noguarantee that they will be (see eg M.Jackman,‘Constitutional Castaways:Povertyand the McLachlin Courts’ (2010) 50 Sup Ct L Rev 297;J Dugard,‘Courts and thePoor in South Africa: A Critique of Systemic Judicial Failures to AdvanceTransformative Justice’ (2009) 24 South African Journal on Human Rights 214; B.Rajagopal, ‘Pro-Human Rights but Anti-Poor? A Critical Evaluation of theIndian Supreme Court from a Social Movement Perspective’ (2007) 7 HumanRights Review 157) – serious debate exists amongst advocates and academics aboutthe risks inherent in litigation and the efficacy of efforts to resolve social rightsclaims on the parts of judges. (See eg V. Gauri and D. Brinks (eds), Courting SocialJustice: Judicial Enforcement of Social and Economic Rights in the DevelopingWorld (NewYork:Cambridge University Press,2008);R.Gargarella et al (eds),Courts and SocialTransformation in New Democracies (Aldershot: Ashgate, 2006) and; O. Ferraz,‘Harming the Poor through Social Rights Litigation: Lessons from Brazil’ (2011)89 SouthTexas Law Review 1643).The suggestion that any but the most naïve ofsocial rights proponents would argue that a victory before the courts wouldconstitute ‘the ideal way of avoiding the pitfalls of the political, while securing allthe benefits that ordinarily flow from such a process’ (54) is strongly disputable.

Furthermore, the claim that ‘having to do politics at all represents a majorproblem for human rights activists’ (26) constitutes a failure to accord adequaterecognition to the central role that rights have played in political movements ina range of countries including South Africa, Colombia, Argentina and, increas-ingly, the US, where the language of rights forms a key part of advocacy effortsdirected towards the elected branches of government. Rather, it seems reflectiveof a perspective rooted in a specific domestic (UK) context in which there hashistorically been reluctance on the part of human rights activists to adopt thelanguage of social rights in advocacy.As such, Gearty arguably fails to appreciatefully the politically-directed nature of the use of ‘human rights language’ on thepart of the civil society groups and local communities that he identifies in Part 2of the book (48-49).

Gearty’s concern with judicialisation focuses in particular on the constitu-tional entrenchment of social rights. He praises the role of judges as ‘secondaryactors’who hold the state to account for failing to give effect to that which it has‘already committed itself in a specific, targeted legislation or policy’ (55). Healso lauds the constitutional inclusion of non-justiciable social rights, citing theexample of the explicitly non-enforceable directive principles under the Irish andIndian constitutions. (Although in doing so, he fails to address the fact that thedirective principles have been effectively rendered justiciable in India through theincorporation of a wide range of social rights under the umbrella provision ofArticle 21). While Gearty addresses the UK position interestingly and withinsight, his treatment of comparative jurisprudence and regional social rightsexperiences could have been broader in scope and deeper in terms of analysis.

Far from dealing a ‘knock-out blow against the credibility of delivering socialrights by means of a system of legally enforceable, generalised entitlements that

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are then fleshed out by judges in the course of adversarial litigation’ (65),Gearty’sdiscussion of justiciability ultimately proves unsatisfactory. As a whole, it fails toengage adequately with the wide-ranging and well-established internationalliterature that would challenge the objections he advances in relation to issuessuch as institutional incapacity, enforcement, vagueness and the risk that thejudicial enforcement of social rights will benefit powerful elites rather than thedisadvantaged. It is notable that his critique of the undemocratic nature of socialrights adjudication focuses only on one (UK-based) author, Sandra Fredman.

There is much to be valued in Gearty’s part of the book. He demonstrates anadmirable concern with law – and specifically social rights – as a tool for theachievement of desirable social ends; he does not fall into the classic lawyer trapof focusing on the law for law’s sake. However, Gearty underestimates socialrights activists. Specifically, he fails to acknowledge the self-conscious, criticalstance adopted by many activists who, building on previous experiences dem-onstrating the shortcomings of employing law as a social change, are veryconscious of the limits of legal action as a tool to advance the broader cause ofsocial rights realisation. In his review of comparative examples,Gearty argues that‘the fact that each country has judicially enforceable guarantees against ending upin exactly the situation in which millions of citizens continue to find themselvesshould surely give even the most enthusiastic of rights-proponents pause forthought: these kind of social rights are hardly capable of dealing with challengeson such a vast scale, however active and intrusive their judicial overseers mightchoose to be’ (82). In practice, though, the question for informed social rightsactivists is not whether justiciable social rights are the exclusive means by whichthe ‘instinct to care’ will/should manifest itself in terms of a more just society.Rather, it is to argue that there is a legitimate role for courts to operate reactivelywhere the elected branches of government fail to give effect to those rights forwhich they – not the courts – have primary responsibility.This emphasis on thefundamental role of executive and legislative responsibility in the area of socialand economic policy is consistent with the requirements of liberal democracyand the requirements of constitutionally entrenched social rights.

In her part of the book, Mantouvalou argues for a general legal right to haveone’s basic needs met and asserts that ‘the legalisation of social and economicrights,which encapsulate this general right, is necessary in any decent society andin a just world order’ (88). In doing so, she asserts that social rights and theirjudicial protection ‘may contribute to our quest for social justice’, and that theymay serve to promote democracy, rather than undermining it (89). She empha-sises, however, (in contrast to Gearty’s depiction of the court-obsessed socialrights advocate) that efforts should not just be focused on the judicial enforce-ment of social rights, given the limitations of the judicial process.Moving beyondthe issue of justiciability, she argues strongly for a second aspect of legalisation ofsocial rights, focused on the role of legislators and their ‘primary obligation’ topromote social rights (89). Ultimately, she concludes that legislatures and courtsought to work in partnership for the legal protection of social rights.

Mantouvalou’s part of the book serves as a useful introduction to key argu-ments relating to traditional debates on social rights. In exploring and challengingthe implications of the (alleged) strict dichotomy between civil and political

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rights and social rights, she accurately identifies and expounds upon the key issuesarising in these contexts. In particular, her discussion of the shared foundations ofthe purported categories of rights, namely dignity, liberty and citizenship, is clearand convincing. While Mantouvalou arguably understates the extent of theconstitutionalisation of justiciable social rights, she engages with a strong range ofdomestic and regional case-law. Her use of examples based on specific socialrights cases render her arguments accessible to a wide audience.

Mantouvalou argues that social rights – like other human rights – should beremoved from political bargaining as ‘they provide a safety net that ensures thatno one will suffer overwhelmingly by the failures of our economic or socialsystem, no matter what the government prefers’ (108). She claims that legali-sation and particularly the constitutional protection of such rights serves toprotect them ‘by sheltering them from everyday political bargaining’ (108).However, the actual implementation of legal social rights, whether in thefirst instance or in response to a court order, is inevitably subject to politicalbargaining – a point that appears to be implicitly recognised elsewhere in herargument.

In engaging with the question of the appropriate role of the courts, Mantou-valou addresses and counters a number of the objections raised to the judicialenforcement of social rights that Gearty highlights in his section of the book.These include expertise, judicial hostility to social rights claims and the effects oflitigation. In arguing for the justiciability of social rights claims, she asserts that‘democracy, properly understood, requires satisfaction of basic needs’ (123).Thisis due to the fact that social rights are an essential precondition for politicalequality. She argues that the protection of social rights cannot be left to ordinarypolitics due to the potential for majoritarian domination or elite minorityusurpation of those processes.

The most interesting part of Mantouvalou’s section centres on the role oflegislatures. Indeed, Mantouvalou’s work is a welcome addition to the emergentliterature on the role of parliaments in giving effect to human rights.As Mant-ouavlou notes, social rights ‘are addressed to legislators as much as to thejudiciary’ in the sense that constitutional social rights are binding on all branchesof government (132).That said, as Gearty would no doubt agree, the legislatureand the executive are – and should be – the first port of call when it comes tothe implementation of those rights, given the greater claim to representativelegitimacy, as well as the specific functions and powers primarily accorded tothose branches in most liberal democracies.Mantouvalou argues that social rightsshould constitute very weighty considerations ‘for the legislature when legislat-ing’ (169). In doing so, she argues that the international community and nationalgovernments ought to give those rights the attention they deserve.This is truenot just in relation to regulating the relationship between the individual and thestate; legislators must also take social rights into account in regulating therelationship between private actors and ‘in reforming the global institutionalstructure that affects interstate duties’ with regard to social rights (170).A moreextensive consideration of the different mechanisms for assisting in the protectionof human rights outside courts would be very welcome in future work in thisarea.

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This review opened by highlighting governmental resistance to the legalentrenchment of social rights at a national level in the UK.Two recent devel-opments in the devolved regions highlight the fact that such an approach may notbe sustainable in the future.The Rights of Children andYoung Persons (Wales)Measure 2011 requires thatWelsh Ministers and the First Minister must currentlyhave due regard to the United Nations Convention on the Rights of the Child(CRC) when making any decision about a provision proposed to be included inan enactment, the formulation of a new policy, and a review of or change to anexisting policy.As of May 2014, Ministers will be required to have due regard tothe CRC in the exercise of any of their functions.A similar measure seems likelyto be introduced in Scotland. (See Scottish Government, Consultation on Rights ofChildren andYoung People Bill, 8 Sept 2011.) Given that the CRC contains a rangeof social rights, we are set to see, at a sub-national level at least, more explicitrecognition and application of social rights in a range of governmental functions.Furthermore, despite the challenges posed to the realisation of social rights in theUnited Kingdom by the current economic context, there is growing reference tosuch rights in advocacy work, including among groups that have previously beenreluctant to adopt social rights language as a tool.Thus, as the austerity agendagrows ever more entrenched, social rights seem poised to assume a more promi-nent role in UK legal and political discourse. As such, this engagingly written,provocative book raises questions that are likely to become increasingly impor-tant to law- and policy-makers, lawyers, national human rights institutions, civilsociety organisations and other actors in this country.

Aoife Nolan*

Norman Doe, Law and Religion in Europe, Oxford: Oxford University Press,2011, 306 pp, hb £60.00.

It was the comedian Groucho Marx who once commented, ‘Those are myprinciples. If you don’t like them I have others’. Readers of Professor NormanDoe’s latest monograph may arrive at a similar conclusion.The book concludeswith fifty principles of religion law common to the States of Europe which arelikely to provoke much discussion, disagreement and critical reflection. Is it reallythe case, for instance, that in all European States ‘a religious group may associatefreely to manifest its beliefs’ (principle 18) and that ‘a religious organization isautonomous, and the State cannot intervene in its internal affairs’ (principle 22)?

It would appear that the principles appended to the book are, in the main,general yardsticks. To use an appropriate metaphor given the book’s subject-matter, the devil is in the detail.Although European States may implicitly agreeon well-meaning but vague benchmarks, the way in which the terms are definedand understood, and the extent to which exceptions to the general rule are

*School of Law, University of Nottingham.

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permitted, are likely to differ. For instance, just referring to English law, principle18 is subject to criminal offences concerning public order, while in respect ofprinciple 22 there is a long established principle that although courts will tendnot to intervene in the internal affairs of religious groups, they will do so if thereis a financial or property interest (Forbes v Eden (1867) LR 1 Sc & Div 568).Moreover, the role Parliament plays in the creation and enactment of Measuresof the Church of England serves as an important qualifier to principle 22: giventhat the law of the established Church is part of the law of the land, it is somewhatartificial to say that the Church is autonomous per se.

However, it is the existence of such exceptions, nuances and quirks that makesDoe’s comparative account of the legal regulation of religion in Europe sointeresting and so compelling as he explores the evidence for these principles. Itis also novel in three respects. Doe’s fifty principles provide the first innovationwhile the way in which the book is arranged provides the second. Previousworks (notably by members of the European Consortium for Church and StateResearch) have tended to deal with each European country separately, typicallydevoting a chapter to each country. In contrast, Law and Religion in Europe dealswith all of the countries at the same time. Each chapter looks at a specific topic,examining how the laws of the various countries regulate that matter. Chapterthree, for instance, looks at religious discrimination law while chapter eight looksat religion and education law.

However, it is Doe’s third innovation that is perhaps the most important. Indescribing and analysing the laws of various European States on religion, Doeundermines conventional understandings of European Church-State relations.Traditionally, European jurists have distinguished between three models orsystems of Church-State relations: State church systems; separation systems; andhybrid (or cooperationist) systems. State church systems are characterised by theexistence of close links between the State and a particular religious community,which may be styled as a ‘State’, ‘national’, ‘established’, or ‘folk’ church. Thiswould include England, Denmark, Greece, Finland, Malta and Bulgaria. Bycontrast, separation systems are those countries where there is a constitutionalbarrier forbidding the financial support and establishment of any one religion.Examples of such a separation can be found in France (with the exception ofthe three eastern départements), the Netherlands and Ireland.As the name suggests,the Hybrid label, is used to cover those States whose constitutional provisionsconcerning religion come in between state church systems and separationsystems. Also known as cooperationist systems or sometimes concordatariansystems, these States are characterised by a simple separation of State and churchcoupled with the recognition of a multitude of common tasks which link Stateand church activity, which are often recognised in the form of agreements,treaties, and Concordats. Spain, Italy, Germany, Belgium,Austria, Hungary, Por-tugal and the Baltic States are all understood to fall within this type.

Law and Religion in Europe shows that these models are of little use inunderstanding how European States regulate religion in the twenty-first century.Although it is possible to identify these models at a constitutional level, Doe’sdetailed analysis shows that the tripartite classification of States falls down oncethe focus moves away from the letter of the continental constitutions. When

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specific areas of law are examined, the countries do not tend to comply with theirconventional classifications. For instance, although Ireland is classified as a sepa-ration system, there is a close nexus between the Irish State and the Churchparticularly in the sphere of education.And whilst both Denmark and Greece areseen as State Church systems, the control of ecclesiastical functions by the Statecould not be more different in these countries. While Danish law places thegovernance of the church generally in the hands of the Ministry of EcclesiasticalAffairs,Article 3 of the Greek Constitution provides for the self-government ofthe Orthodox Church.

Indeed in some areas of law, different typologies emerge. For instance, inrelation to the recognition of religious marriage Doe distinguishes between threedifferent approaches (216-222).These three approaches do not accord with theconventional models.The first approach includes those States which recognisethe validity and public effects of certain religious marriages formed at the timeof their ritual celebration provided the conditions of civil law are met. Countrieswhich adopt this approach include England (a State Church system), Ireland (aseparation system) and Austria (a hybrid system).The second approach includesthose States which recognise religious marriages as having civil effect from thetime of their ritual celebration but recognise the marriages conducted by min-isters of other faith communities as essentially civil marriages merely solemnisedin a religious context and formed on subsequent civil registration. The thirdapproach includes those States which do not recognise religious marriages at all,but may permit a religious ceremony subsequent to a civil marriage, or indeedpenalise their solemnisation under criminal law if conducted prior to a civilmarriage. Again, the States who adopt this third approach straddle the conven-tional tripartite distinction. Examples include France (a separation system),Denmark (a state church system) and Belgium (a hybrid system).

However, Doe does not simply use the nuances found in specific laws toquestion the effectiveness of the three models. By their very nature, modelsprovide approximations and generalisations which, though useful for the proposesof comparative study, can be undermined by reference to the messy reality. Itwould be a fairly straightforward task to present legal evidence that questions themodels and conclude that the legal materials suggest that the situation is morecomplex than the models suggest.To his credit, Doe does not do this. He avoidssuch an easy conclusion by proposing instead something much more ambitious:that European States share a common approach to the regulation of religion andthat this common approach has much in common with the cooperationist modelof Church-State relations.This audacious conclusion allows Doe to formulate hisfifty principles which are common to the States of Europe.

Moreover, Doe’s insistence that there are more similarities than differences inthe way in which European States regulate religion is important in its own right.It debunks conventional understandings that suggest, for instance, that the secularposture, or laïcité, of the French State has little in common with the Englishapproach with its established church and benign tolerance of religious difference.Doe shows that so-called separation systems are not characterised by indifferencetowards religion. Instead the State’s role is facilitative. Neutrality is not a passiveobligation: rather, in its pursuit of religious freedom and equality, the State actively

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seeks to remove all existing boundaries and often seeks to provide the meanswhereby all citizens enjoy the equal right to manifest their religiosity throughouttheir everyday life.This means in practice there is little to distinguish so-calledseparation systems from other European States. The only difference is not theactual legal relationship but the emphasis of the letter of the law.The means maybe different but the end is the same.All States seek to facilitate religious freedomand cooperate with religious groups in order to achieve this.

ChapterTen applies this thesis to the law of the European Union.Doe contendsthat the posture of the EU towards religion is characterised by seven fundamentalprinciples – the value of religion, subsidiary, deference to the Member State,religious freedom, religious equality, the autonomy of religious organisations,cooperation with religion and the special protection of religion through legalprivileges and exceptions.Again, although there are of course notable qualifica-tions to these principles (which Doe discusses in the text),Doe’s identification ofexplicitly and implicitly agreed common principles provides a valuable newinsight which questions conventional thinking.Analysis of the jurisprudence ofthe European Court of Human Rights buttresses this conclusion.Article 9 of theECHR is one of the, if not the, most important sources of religion law in mostEuropean States, and the Strasbourg Court has repeatedly emphasised ‘the State’srole as the neutral and impartial organiser of the exercise of various religions, faithsand beliefs’ (Refah Partisi vTurkey (2003) 37 EHRR 1 at para 91).

In an era where the place of religion in the public sphere is increasinglycontroversial, the calm analysis provided in Law and Religion in Europe is more thanwelcome. Professor Doe’s innovative new book is one of those rare texts whichchanges the way in which a field of study is understood. It has long been thoughtthat European legal systems differ substantially in how they deal with religion,with the French separation of Church and State contrasted, for instance,with thepresence of the established Church of England. However, Law and Religion inEurope demonstrates how the laws affecting religion in European States areactually underpinned by common principles.Doe’s book delights in questioninglong-held assumptions, debunking conventional understandings and proposingbold new research questions. It is destined to become a classic in the field.

Russell Sandberg*

Albert Sánchez Graells, Public Procurement and the EU Competition Rules,Oxford: Hart Publishing, 2011, 480 pp, hb £85.00.

As one of the largest sources of demand in most Western economies, the state isnot a neutral actor in competitive markets. But the distinctive flaws in the state’sexercise of buyer power can result in a raw deal for taxpayers. State bodies canoften be exploited by well-advised, economically-sophisticated private actors. Of

*Cardiff Law School, Cardiff University.

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course, not every company that deals with the state seeks to rip it off. But thepoor value realised by many of these contracts could be due to the weakness ofthe state as a self-interested negotiator.What can explain this? Poorly resourcedstate bodies can struggle to procure services at a good price to satisfy theburgeoning statutory obligations which politicians place upon them. Conversely,public choice theory emphasises that there are no effective incentives for civilservants to obtain best value from contracts which may increase efficiency, reducecosts and make them redundant – think of the comic cynicism of Nigel Haw-thorn’s character in Yes Minister.There is also the threat of judicial review. Publiclawyers scrutinise the decisions taken by over-worked civil servants with scarceresources.The situation is far from satisfactory.

Public procurement law seeks to protect the state from one aspect of thisproblem: anti-competitive conduct by private contractors. It is a dense field oflaw, and scholarship has been led in the past by practitioner works such as SueArrowsmith’s authoritative, if now dated, Law of Public and Utilities Procurement(Sweet & Maxwell, 2005 – a new edition is expected this year) and PeterTrepte’sPractitioner’s Guide (OUP, 2007). This outstanding new monograph by AlbertSánchez Graells, a first book by a young academic, provides a fresh perspective.The author concentrates solely on the overlap of public procurement withcompetition law as a way of recasting the entire subject. Both areas of law areregulated by the EU and they naturally share a number of complementaryobjectives, such as free movement and integration of the common market,anti-fraud and transparency protection, and also prevention of discriminationagainst private companies in different EU member states.The author concernshimself in particular with ‘publicly-created distortions of competition’ (9) thatmay lessen the effect of the main corpus of EU competition law. Central to hisperspective is the economic concept of monopsony buyer power exercised by thestate.The author describes monopsony power as a ‘mirror’ to the monopoly buyerpower of private companies (39), which is subject to the abuse of dominanceprovisions in EU competition law and the anti-monopolisation provisions of USantitrust law.

The text is divided into four parts.The first two parts propose a conceptualmodel.According to the author, the existence of public procurement law com-pensates for the market failure caused by the state’s monopsony buyer power (58).Public procurement regulations create an alternate competitive market. Thiseconomic model is predicated on the exercise of buyer power by a singledominant public buyer with only a fringe of competitive rivals.This model is tomy mind highly persuasive: there are few cases, if any, where a state buyer wouldcompete with any other buyer for the same services, and those which are wouldbe cherry-picked. Roads, for example, may need only to be swept once a week:would local residents really pay for a competitor to compete with the corporationdustcart? To the author, various losses to aggregate welfare flow from thiseconomic model, including increased inefficiency, the potential for bidder col-lusion leading to higher prices and, ultimately, poor value realised from thecontract. For this reason, the author argues that public procurement law sharesmany common normative assumptions with consensus positions in EU compe-tition law (75). More controversially, however, he argues that the state – as a

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matter of law – should be neutral as to the distributive effects of the exercise ofits buyer power (95).The author is plainly not a socialist.

In part three, the author examines the operation of the present public pro-curement regime. EU competition law is generally inapplicable to public pro-curement situations,which is for the author a jurisprudentially created‘gap’ (128).The author notes, however, that this is now less true following the FENIN case(C-205/03 [2006] ECR I-6295, regarding alleged anti-competitive conduct bythe Spanish NHS). Following this, the author argues that there is a ‘competitionprinciple’ which has several uses: it is a general rule of interpretation of the EUpublic procurement regime; it accordingly restricts the options open to publicbodies in the exercise of buyer power; it complements equality and transparencyobligations; and it serves finally as a ‘residual criterion’ for the development of theregime in areas which are not covered by the rules (200).This thesis is highlypersuasive and supported by legal authority. Part four examines the furtherimplications of this: ‘distortions to competition’ caused by the public procure-ment rules, as noted by AG Maduro in precisely those terms in Commission v.Greece [2005] ECR I-4713 at para 101 (245). Teaming, or bidding consortia(where one or more buyers submit a joint bid for a particular contract) are in theauthor’s view in compliance with Article 101 TFEU, which would perhapsotherwise prohibit such collusive behaviour. It can be value-enhancing for a stateowner of an asset when sources of capital and expertise are pooled via a publictender subject to procurement processes. Further, the operation of biddingconsortia may also increase the number of potential bidders who could competefor such a state contract (given the high value of the services), thereby enhancingcompetition.For example, imagine a tender for a railway franchise: rival consortiaof bidders in groups active in infrastructure markets can compete effectively forthe franchise as consortia together without infringing the prohibition on collu-sion in Article 101. Similarly, the author argues that mandatory sub-contractingis also permitted; and that the reduction in opportunities for switching by lengthycontractual terms via procurement processes is tolerated because of the need torealise satisfactory returns on capital.

In a provocative final chapter, the author makes proposals for reform. Onesuggestion is to prohibit companies that are guilty of infringements of compe-tition law from tendering for any contract under the public procurement rules.This is overly restrictive in my view and lessens competition. It is also unfair ina jurisprudential sense. Surely it is right that companies which have repented fortheir sins (and perhaps even paid for them via hefty fines and loss to reputation)should be allowed to compete for business once more? Sánchez Graells’s mini-malist view of the subject matter should alert the reader that there is more topublic procurement law than the protection of effective competition amongstprivate undertakings.The traditional EU focus has been free movement of goods,which is barely considered. More conceptually, tangential critical debates (whichhe decides at 25 not to discuss) concern the role of public procurement inhelping less-developed states reduce corruption and obtain greater shares of theprofits of multinationals.There have been some fruitful studies of the role of theWorldTrade Association and theWorld Bank in implementing the UNCITRAL2011 Model Law on public procurement in the third world. Equally, there are

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more critical questions raised by state contracts than can be explored solelyfrom the public procurement perspective, as Anne Davies has argued in hermonograph, The Public Law of Government Contracts (OUP, 2008).There are othersimilar texts by McCrudden and Bovis.Yet this new book by Sánchez Graellsremains a powerfully argued piece of scholarship which is certain to influence theacademic debates further.

This book is also useful for practitioners, but the text is not user-friendly.Pages 399-453 constitute a lengthy fifty-page bibliography, followed by a weakthree page index. It perhaps would have been better to cut the bibliography andre-allocate space to the index.The book is a critical narrative rather than a sourceof reference.

John Townsend*

*Legal Assistant, Competition Commission; Barrister, Lincoln’s Inn. All remarks are personal to theauthor and do not reflect any views of the Competition Commission.

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