The Hamlyn Lectures 2008: Judging Civil Justice – By Hazel Genn

Book reviews

The Reform of UK Personal Property Security Law: Comparative Perspectives, editedby john de lacy.lest_188 159..172

Abingdon: Routledge-Cavendish, 2010, xxxix + 475 + (appendices + index) 51pp(£95 hardback). ISBN: 978-1-85941-891-8.

For those with an interest in the law of personal property security interests, 12 March2010 marked another ground-hog day in the long and so far fruitless saga of lawreform efforts in the field. On that date, the Department of Business, Innovation andSkills (BIS) launched a public consultation on yet another set of proposed reforms tothe company charge register.1 As a perusal of the essays collected in Dr De Lacy’stimely volume will show, these proposals mark the seventh (or eighth depending onhow one counts) attempt since 1971 to update and reform the law in this area. The LawCommission of England and Wales has published no less than three papers on thetopic. The Scottish Law Commission has twice added its voice, while the Crowther,Diamond and the Company Law Review Committees have all made proposals forchange. It is little wonder, then, that Professor McCormack chose to open his contri-bution to this volume with a reference to reform processes being ‘on the one road – theroad to God knows where’.2

It is against this background of repeated unsuccessful attempts to reform UK lawthat the Reform of UK Personal Property Security Law is published. The book gatherstogether a collection of essays which examine the state of the law in the UK, thereasons for the failure of the law reform process to date and the paths which have beenfollowed in other jurisdictions. There are 14 contributions in total. The first six papersare focused on the efforts to achieve change in England and Wales. These paperspresent different perspectives on the various issues arising from the three sets ofproposals produced by the Law Commission during its 2002–2005 project oncompany security interests. A seventh paper considers the position in Scotland, whichis followed by a pair of papers considering the particular concerns of those seeking tocreate security interests over intellectual property. In the second half of the book,inspiration is sought from abroad. There is a paper recounting the process by whichthe Personal Property Securities Act 1999 was introduced to New Zealand and anotherpaper considering the adoption of a similar reform in Australia which is due to comeinto force in May 2011. A lengthy consideration of the as yet unreformed law ofSingapore completes this comparative trilogy. The final two papers bring a trans-national flavour to the volume. In the first of these, Drobnig explores the prospect offuture European reforms, arguing that differences in personal property security lawmay constitute a barrier to trade in the EU’s internal market. The book concludes witha short account of UNCITRAL’s Legislative Guide on Secured Transactions.

Before considering the content of individual papers, a few general comments canbe made about the collection as a whole. First, though the collection is entitled theReform of Personal Property Security Law in the UK, the overwhelming majority of

1. Department of Business Innovation and Skills Registration of Charges Created by Com-panies and Limited Liability Partnerships (London: TSO, 2010).2. Reform of Personal Property Security Law, p 83.

Legal Studies, Vol. 31 No. 1, March 2011, pp. 159–172DOI: 10.1111/j.1748-121X.2010.00188.x

© 2011 The Authors. Legal Studies © 2011 The Society of Legal Scholars. Published by Blackwell Publishing, 9600Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA

the contributions covering UK law are focused on security interests created by com-panies. While this is unsurprising given that company security interests were theprimary subject of the Law Commission’s reports, it is perhaps regrettable that noneof the authors in the collection gave detailed consideration to security interests createdby individuals. Such interests continue to be governed by the Bills of Sale Acts1878–1882.3 These Acts have long been widely criticised and it is notable that both ofthe authors of papers in which they are given a passing mention are in favour of achange to bills of sale notwithstanding their opposing views about the desirability ofreform on the company side.4 If the history of the last 40 years yields any lesson forthe future, it is surely that consensus in the secured credit debate is rare indeed. Sincethere seems to be general agreement on the need for reform of the bills of salelegislation, it is unfortunate that the opportunity was missed to include a paperexploring in detail the changes which might be made.

The second surprising omission is the lack of any substantial analysis of the workof the European Bank for Reconstruction and Development (EBRD). The EBRDModel Law on Secured Transactions has been partially adopted in a number ofjurisdictions in Eastern Europe and, while this development is referred to in passing ina number of the papers, it never receives a detailed consideration. This is unfortunate.The reform debate in England and Wales has traditionally been presented as a choicebetween the present system (perhaps modified by some minor tweaks) and adoption ofa suitably amended version of Art 9 of the Uniform Commercial Code from the USA.It is worth noting that there are alternative systems out there to which English lawyersmight look for inspiration. The inclusion of a paper on the UNCITRAL legislativeguide is commendable in this respect; however the addition of a paper on the EBRD’swork and the implementation of the Model Law in Eastern Europe would have giventhe book a broader comparative flavour.

For reasons of space it is not possible to review individually each of the 14 paperswhich make up this volume. It suffices to say by way of general observation thatProfessor Sir Roy Goode’s comment in the preface to the effect that the papers contain‘a rich feast which will provide invaluable material for those working in the field’5 isfully borne out by the succeeding chapters. Since the core question facing those whowork on English personal property reform is whether or not reform should be perused,it is proposed to consider in detail those contributions which most directly address thatquestion.

In the opening paper, the editor himself sets out a detailed historical account of thedevelopment of the existing law. The central problem for the law of secured creditaccording to De Lacy is finding a means of accommodating the rise of contract as theprincipal alternative to passing possession as a means of transferring interests ingoods.6 Reliance on contract as a conveyancing mechanism leads to problems ininforming others of the existence of the security interest and the paper sets out in detailthe piecemeal and haphazard methods by which English lawyers have attempted to

3. The Department of Business Innovation and Skills has recently consulted on proposals toamend the operation of the Bills of Sale Acts in relation to consumer lending, particularly withregard to so-called ‘logbook loans’; the consultation does not address bills of sale outside theconsumer context. See Department of Business Innovation and Skills A Better Deal for Con-sumers: Consultation on the Proposal to Ban the use of Bills of Sale for Consumer Lending(London: TSO, 2009).4. Reform of Personal Property Security Law, pp 17–19, 163 and 187.5. Ibid, p xlii.6. Ibid, pp 8–9.

160 Legal Studies, Vol. 31 No. 1

© 2011 The AuthorsLegal Studies © 2011 The Society of Legal Scholars

address that concern. For De Lacy the main difficulty seems to be that English lawremains ‘stuck in a time-warp’7 composed of eighteenth and nineteenth centurydevelopments such as the rule in Dearle v Hall8 and a poorly designed and incompleteregistration system imposed in Victorian times. The problem in other words is that thelaw is composed of a multiplicity of rules which have never been systemicallyreviewed to examine their suitability for the modern problems they are expected toregulate.

A slightly different take on the problems existing law is offered by Benjamin inch 6. Her paper begins by explaining the importance of an adequate secured transac-tions law to the operation of the capital markets. The paper goes on to point outinadequacies in the existing framework as it applies to operations in the capitalmarkets, particularly in light of the move to intermediated securities. Difficultiesidentified here include complex priority rules which are of uncertain application,9

questions around the application of the company registration rules (at least prior to theimplementation of the Financial Collateral Directive),10 and inappropriate and unclearrules governing shortfalls in pooled assets.11

Further evidence that the arguments for law reform are not merely a matter of legalhousekeeping is provided by Davies in ch 9. He reviews the empirical data on lendingto technology-based small firms and concludes that intellectual property rights may beamong a small number of assets which such firms may have available as collateral forsecured lending.12 Nevertheless, the existing provisions create multiple separate reg-istration regimes for specific types of intellectual property rights alongside thecompany charge register. The result, as Davies points out, is a highly problematic legalregime which does not facilitate the full exploitation of intellectual property rights.

The arguments against a fundamental re-examination of the law of secured creditare extensively canvassed by Calnan whose paper appears in ch 4 under the title ‘Whatis wrong with the law of security?’At the outset of his paper, Calnan states that the lawof security should be to ensure that security is ‘capable of being created and enforcedwith the maximum of flexibility and certainty and at the minimum of cost, delay andformality consistent with appropriate safeguards for the debtor’s unsecured creditorsand others dealing with the debtor’.13 In assessing the law governing creation ofsecurity, Calnan argues that the existing law has the advantages that the recognisedsecurity interests are highly flexible and can be created with a near total absence offormalities. The registration system at Companies House, for the most part, protectsthe interests of third parties.14 In general, he therefore concludes, the system workswell. Calnan then goes on to suggest that there are three problems with the currentsystem which require a remedy. First there is a need to revisit the distinction ininsolvency between the fixed and floating charge so as to avoid having to draw adifficult and conceptually meaningless distinction.15 Secondly, there are problemswith the registration system. There are doubts over the scope of its reach, difficulties

7. Ibid, p 81.8. (1828) 3 Russ 1.9. Reform of Personal Property Security Law, p 246.10. Ibid, p 243.11. Ibid, p 250.12. Ibid, pp 308–314.13. Ibid, p 162.14. Ibid, pp 167–169.15. Ibid, p 170.

Book reviews 161


with the avoidance sanction for non-registration and, prior to the Companies Act 2006,there was a difficulty with so-called Slavenburg filings by overseas companies with anestablished place of business in the UK.16

It is difficult to accept some of Calnan’s arguments. He does not engage with thedetailed concerns raised by Davies and Benjamin in subsequent chapters. His argu-ment seems to be based on a very narrow claim – ie that security under present Englishlaw is easy to create. While that is true insofar as it goes, it is certainly not the case thatthe company charge registration system is easy to operate in all cases. Moreover, it isnot at all clear that the registration system as it stands serves as a really usefulsafeguard for third parties dealing with debtors. In light of those concerns, a simpleassertion that English security is easily created and therefore without need of reviewseems to be an inadequate defence of the status quo.

Whatever the correct position, the BIS consultation paper above makes it inevitablethat the debate about the reform of secured credit will continue to rumble along for theforeseeable future. It is to be hoped that the Reform of UK Personal Property SecurityLaw: Comparative Perspectives will be read carefully by all those who will beinvolved in leading that debate to its ultimate conclusion, whatever that may be.

noel mcgrath17

The Hamlyn Lectures 2008: Judging Civil Justice, by hazel genn.Cambridge: Cambridge University Press, 2010, xvi + 188 + (bibliography and index)22pp (£13.99 paperback, £40 hardback). ISBN 978-0-521-11894-1 and ISBN 978-0-521-13439-2.

Hazel Genn’s monograph provides a critique of the civil justice system in England.The essence of the monograph argues that civil justice is in a stage of crisis due to tworelated circumstances. The first reason is the cut in public investment in the civilcourts; this is a consequence of having a shared budget that diverts funds to criminaljustice, since more resources are taken up by the criminal justice system in order tocope with the increase of criminalisation of social activities. The second reason forthis crisis, Genn contends, derives from the reform of civil justice, which has beengeared towards discouraging the use of litigation. In so doing, the use of alternativedispute resolution (ADR) has been promoted as the preferred substitute, not for itsintrinsic value, but with the purpose of deflecting cases from a faulty and ineffectivecivil procedure, which in itself is seen as the last resort. In this valuable work, HazelGenn critically assesses the current state of civil justice and denounces the policy ofavoiding litigation as undermining the important role of litigation in forming socialstandards. This is a vital concern, she argues, as growth and strength of a common lawsystem is rooted in accessible and effective courts that further the development ofthe law.

By contrast, it can be argued that the development of ADR at the expense oflitigation need not necessarily damage the development of social standards. In fact,even the use of consensual methods of dispute resolution such as mediation alsocontribute to the development of customary law, and hence social standards such as

16. Ibid, pp 170–172. See NV Slavenburg’s Bank v International Natural Resources [1980 1WLR 1076: Slavenburg filings were abolished by the Overseas Companies (Execution ofDocuments and Registration of Charges) Regulations 2009, SI 2009/1917.17. Lecturer in Law, Dublin City University.



the expectations of individuals are shaped spontaneously and voluntarily by the use ofnon-adversarial processes. Indeed, customary law, particularly important in thecontext of international law, is not created by legislators and judges, but by thecommunity who will exclude those who do not comply with the customary law.18

In this volume the author favours the traditional interpretation of access to justiceviewed, not as an equivalent to access to a dispute-resolution process, but as aconstitutional right of access to a civil judicial process. One cannot help but wonderwhether access to justice would be attained when the only means available forresolving disputes is a costly and slow judicial process. In this context, it is generallyunderstood that ADR, with the limitations and advantages of private dispute-resolution methods, has the opportunity to enhance redress.19 It must be emphasisedthat the book does not criticise ADR per se, but rather the way ADR is promoted formost types of civil disputes at the expense of discouraging litigation. The authorobserves that:20

‘In the process of seeking necessary and laudable improvements of civiljustice, voluble reformers have attacked its principles and purpose in a “post-modernist” rhetoric which undermines the value of legal determination, suggeststhat adjudication is always unpleasant, and finally promotes the conviction thatthere are no rights that cannot be compromised and that every conflict representsmerely a clash of morally equivalent interests.’

Genn argues convincingly that ADR, and in particular mediation, would be moreeffective if combined with accessible and efficient civil courts since they represent themost persuasive incentives for parties to sit at the negotiating table.

The book is divided into five chapters, with the first and last chapters representingthe introduction and conclusion of the monograph, while the three substantive chap-ters contain the core issues discussed in the three Hamlyn Lectures that the authordelivered in 2008. Chapter 1 opens the argument of the book by examining ‘what iscivil justice for’ and outlines the public role of civil justice arguing that court litigationis more than a mere dispute-resolution mechanism. It is also a way of shaping publicpolicy as well as ensuring the enforcement of parties’ legal entitlements.21

This analysis paves the way for the discussion in ch 2 that explores the limits andboundaries of civil justice by examining the following issue: how much justice isenough? The chapter commences by de-mystifying the existence of a compensationculture and it contends that the empirical evidence available suggests that it is largelyan urban legend. Further, the chapter argues that this rhetoric is used as a justificationfor diverting disputes away from the courts, thus causing a growing degradation of thecivil justice system and its benefits.

Genn contends that one of the modern paradoxes is the increase of regulation incivil justice that is coupled with a decrease of adjudication. She asserts that there is agovernmental policy to reduce the number of civil disputes reaching the courts. Thebook voices the lack of resources destined for the civil courts where the costs areborne entirely by the litigants. She illustrates this point by reference to the Access to

18. B Benson ‘Interjurisdictional competition through alternative dispute resolution’ inB. Main et al What Price Civil Justice? (London: Institute of Economic Affairs, 2000) p 77.19. N Andrews The Modern Civil Process (Tubingen: Mohr Siebeck, 2007) p 240.20. The Hamlyn Lectures 2008, p 25.21. Cf O Fiss ‘Against settlement’ (1983) 93 YLJ 1073.

Book reviews 163


Justice Act 1999, which removed state funding in areas such as personal injuriesand substituted this with an alternative system of self-funding – ie conditional feeagreements.

In this chapter the author also argues that the promotion of ADR and the anti-adjudication rhetoric emanate from the government and from the judiciary, whoseresources are increasingly being strained and hence may view ADR as the bettermethod of redress. The chapter considers the result of the Woolf Report and arguesthat the reforms in civil justice have been driven by one aim: deflecting disputantsaway from the courts by shifting the focus of the courts to early settlements. The newapproach to litigation has been implemented through changes in procedural rules,jurisdictional reform and promotion of ADR In a similar critical vein, Genn suggeststhat governments are not always keen on developing civil justice, since the civil courtsare the home for applications for judicial review. Moreover, Genn suggests thatprocedural reform has been inspired more by assumptions and perceptions concerningthe high costs of litigation, slow processes, etc, rather than being based on soundempirical research.

Throughout the book, in particular at the end of ch 3, it is suggested that thepromotion of mediation at the expense of court adjudication is driven by the economicinterest of an emerging ADR profession, which seeks to establish its place in thedispute-resolution market. Nevertheless, in practice it seems that there is a lack ofdemand for ADR,22 which is not used as often as might be desired, particularly whencompared with litigation. Indeed, both the judiciary and the government, as it has beenreflected in the recent Jackson Report on Costs, believe that ADR is under-exploited.23

There is a clear consensus that courts, lawyers and disputants should think more interms of appropriate dispute resolution. This approach in itself suggests that litigationis ill-suited for certain types of disputes.24 By contrast, Genn suggests that mediationshould not be used as a precondition to litigation and she does not justify thenon-discriminatory deflection of cases away from litigation. In this regard sheobserves that ‘[w]e need a strategy for the cases that we want to encourage into thesystem and those that we would prefer to discourage and we need to articulate ourreason for both of these choices’.25 In Genn’s view, a non-discriminatory diversion ofcases has a negative impact on the social and economic development of the country.This argument is very compelling, and it can only be regretted that the author did notattempt her own identification of this complex strategy. The identification of thesechoices would have added value to the monograph. Some countries, such as Spain,have drafted laws that request parties to mediate in advance of issuing formal legalproceedings, particularly in those cases where the parties admit their liabilities.26 Inaddition, many countries are increasingly introducing mandatory meditation foremployment and family disputes. Are these areas of mandatory mediation justified?

22. H Genn Solving Civil Justice Problems, What Might Be Best? Scottish Consumer CouncilSeminar on Civil Justice (January 2005) p 12.23. LJ Jackson Review of Civil Litigation Costs: Final Report (Norwich: TSO, 2010) ch 36.24. J Hill Cross-Border Consumer Contracts (Oxford: Oxford University Press, 2008).25. The Hamlyn Lectures 2008, p 76.26. Spanish Mediation Bill of 19 February 2010 implementing Directive 2008/52/EC of theEuropean Parliament and of the Council of 21 May 2008 on Certain Aspects of Mediation inCivil and Commercial Matters [2008] OJ L136/3. See also Case C-317/08 Alassini and Othersv Telecom Italia (unreported) 18 March 2010, para 67 where the European Court of Justice heldthat mandatory mediation prior to litigation does not necessarily breach EU law.



Although it leaves the reader wanting more in-depth analysis on these issues, the booksuggests that a ‘one size fits all’ approach to mandatory mediation would not bedesirable.

Chapter 3 deals with mediation, pointing out from the outset that mediation doesnot take into account the rights of the parties. Although the chapter provides a succinctreview of the positive elements that mediation has to offer, such as its speed, infor-mality, the possibility of achieving tailor-made agreements, repairing relationshipsand making cost savings; it warns that mediation is not a panacea as it can increase thecost of dispute resolution when unsuccessful. Moreover, the chapter contends thatmediation frequently requires parties to find a compromise that may restrict theirsubstantive rights. In this context, ADR does not increase access to justice in strictusensu, she argues, it only provides a redress method which leaves the parties in aposition that is at least better than leaving the dispute unresolved; in Genn’s words,‘The outcome of mediation is not about just settlement, it is just about settlement’.27

An apparent gap in this chapter is the silence on tribunals. Tribunals represent animportant element within the civil justice system; in fact, arguably, part of the diver-sion of cases from the courts is currently being dealt with by tribunals. The readerremains unclear on the author’s position on this. Tribunals do not create precedent assuch, but unlike private ADR methods, tribunals do shape public policies as theirdecisions are often published and followed in subsequent cases.

Professor Genn observes that ‘[a] well-functioning civil justice system should offera choice of dispute resolution methods. We need modern, efficient civil courts withappropriate procedures’.28 She therefore calls for a greater investment in the civilcourts and more education on ADR, rather than simply trying to cut down publicexpenses by diverting cases to ADR based on the failure of court adjudication.

Nonetheless, as is often the case, if disputants are not informed, and have notpreviously considered the used of ADR, or their lawyers have not properly informedtheir clients, why should not the courts encourage the use of ADR, or at leastrecommend or compel the parties to attend an information session? Why cannot thecourts act as gatekeepers and inform parties when mediation might be relevant?Clearly, this should not be the only source of information, yet it could be an importantone. The author’s view in this regard appears to suggest that this role should not becourt-led.

Chapter 4 entitled ‘Judges and civil justice’ examines the position of the judiciaryin England, dealing with some topical and thorny issues such as diversity. In thisrespect, the author rejects the justification of difference in approaches to decisionmaking and argues that the rationale for increasing diversity must rest exclusively withthe legitimacy of power sharing in a democratic society. The chapter also raisesawareness of the lack of research explaining how judges work, particularly in thelower courts, which, according to Genn, has a knock-on effect on our lack of under-standing of the functioning of the civil justice system. The chapter reviews theliterature on judicial behaviour in the higher courts and suggests that the approach inlower courts may well be different as judges are given a greater level of discretion,have extra time constraints and deal with more factual issues.

The chapter continues by arguing that over the last century judges have augmentedtheir power due to the increase of regulation and the shift from democracy to ‘juris-tocracy’. Some of these factors are also discussed in ch 2: the growth of the welfare

27. The Hamlyn Lectures 2008, p 117.28. Ibid, p 125.

Book reviews 165


state, challenges to public and private bodies and the general increase of regulation. Inaddition, this chapter explores other factors, such as the growth of judicial review,particularly when dealing with politically sensitive issues. Another factor addressedhere is how the Woolf Reforms have increased the discretion, and hence the power, ofjudges with the objective of speeding up proceedings and keeping down the costs;albeit the latter has yet to be achieved. The last factor explored is the jurisdictionalexpansion in the medical law field. She argues that courts have now to deal withethically sensitive issues where there is a lack of social consensus. Based on theauthor’s previous research and ad hoc interviews, this chapter provides an interestinginsight into judges’ work and their motivations when applying for a judicial position.Finally, Genn boldly poses the question whether the reduction of proceedings andtrials, coupled with the diversion of disputes from courts to private ADR providers, isa welcome development or a sign of diminishing confidence in our public courts. Theflow of the book of course suggests the second view.

Finally, ch 5 concludes by recapitulating and arguing that the civil justice systemshould not be measured simply in terms of cost efficiency; other values must also betaken into account, such as ensuring enforcement of legal rights and the advance oflegal policies that have an impact on the development of society.

Overall, this is a brief but thought-provoking monograph that contributes signifi-cantly to the scholarly debate. Its lucid language and relatively short length allows forthe maintenance of a focused and robust argument on the importance and irreplaceablerole of the civil courts. The book is therefore easy to recommend to anyone interestedin the field of civil justice.

pablo cortés29

Schlechtriem and Schwenzer, Commentary on the UN Convention on the InternationalSale of Goods (CISG), edited by ingeborg schwenzer.Oxford: Oxford University Press, 2010, 3rd edn, xcvi + 1270 + (appendices, bibliog-raphy and index) 209pp (£225 hardback). ISBN: 978-0-19-956897-0.

Reviewing a new edition of a well-established book always raises the question of whatcould usefully be noted that might not have been covered in reviews of earlier editions.This is particularly so in the case of books which have become a leading text in theirfield. In this context, a reviewer might best concentrate on how the authors/editorshave approached the task of preparing a new edition, ie to consider whether this ismerely an update in the light of new case-law or legislative developments, or whetherconsiderable re-writing has had to be undertaken. It might also be worth askingwhether the general approach adopted in earlier editions of a text is still appropriate,or whether developments both at the practice and scholarship levels necessitate a morefundamental re-think.

There can be no doubt that Schlechtriem and Schwenzer’s Commentary on the UNConvention on the International Sale of Goods, now published in its third edition, isone of those leading texts which is so influential that readers of the earlier editions willhappily buy the new edition, and those new to the topic will go straight to the latestedition without worrying too much about what any reviews might have to say about it.

Schlechtriem and Schwenzer is produced by a small team of contributors. Onesignificant difference with this edition is that it is the first edition published after the

29. CSET Lecturer in Civil Justice, School of Law, University of Leicester.



death of the founding author, Professor Peter Schlechtriem, in April 2007. Mostcontributors are based at the University of Basel, with others at Freiburg, St Gallen andOsnabrück, as well as one judge of the German Federal Supreme Court. This, ofcourse, reflects the book’s origin as a German-language commentary. One might askwhether a commentary on a transnational instrument so widely adopted would benefitfrom a team of authors with a more diverse background, reflecting the many differentjurisdictions and legal families in which the Convention on the International Sale ofGoods (CISG) operates.

Schlechtriem and Schwenzer is a detailed commentary on the CISG, a conventionoften regarded as one of the most successful measures in the field of transnationalcommercial law, not least because of the large number of countries which have ratifiedit. The UK is one of only a small number of important trading nations which have stillnot taken steps to ratify the CISG, which is a continuing source of regret among manycommercial law scholars in the UK. Although UK legal scholars are taking anincreasing interest in the CISG, it still does not seem to feature much in academiccourses, with the exception of specialist postgraduate options.

The core feature of Schlechtriem and Schwenzer is that it provides an article-by-article commentary on the CISG. The division of the book follows that of the CISG,ie part 1 (divided into two chapters) deals with the sphere of application of the CISGand general provision; part 2 covers the provisions on the formation of contracts (thisis done in one single chapter); and part 3 (four chapters with sub-divisions) examinesthe articles specifically concerned with the sellers’ and buyers’ respective obligationsand remedies under the CISG. Part 4 (two chapters) addresses the final provisions ofthe CISG.

Each chapter/section first states the relevant article of the CISG under discussion,followed by an overview of the structure adopted for that section. This is helpfulparticularly for those articles which are subjected to very detailed scrutiny, becausethis makes it easier to navigate each section for readers interested in a particular aspectof that section.

The reason why many chapters/sections are so detailed (the whole of the commen-tary now runs to 1200 pages) is because detailed account is taken of both the vastamount of literature on the CISG, as well as the body of case-law from national courts,which is already extensive and appears to be growing exponentially as both lawyersand commerce become more familiar with the CISG. In addition, there are numerousarbitral awards to be taken into account. The authors of Schlechtriem and Schwenzersee it as one of their primary tasks to furnish the reader with information about legalscholarship and rulings applying the CISG from as many jurisdictions as possible,30

always bearing in mind the overarching objective of the CISG to achieve as high adegree of uniformity as possible. Indeed, a perennial struggle exists between main-taining the autonomy of the CISG and domestic legal concepts or understandingsinfiltrating the way the convention is interpreted and applied.

The sheer wealth of material that needs to be taken into account also poses anenormous challenge, because decisions have to be made about the significance to begiven to judicial or arbitral rulings, as well as the body of scholarship dealing withcontroversial or ambiguous aspects of the CISG. There is always a danger that acommentary could become so hidden in the detail that the wider picture will be lost.Fortunately, this appears not to have happened in the present case.

30. Schlechtriem and Schwenzer, p 7.

Book reviews 167


It would be beyond the scope of any review to consider every aspect of thiscommentary in detail, and therefore only a number of selected observations are madeon substantive aspects of Schlechtriem and Schwenzer. One provision of the CISGwhich has given rise to much debate is Art 7, dealing with the interpretation of theconvention and gap-filling. Article 7(1) provides that ‘in the interpretation of thisConvention, regard is to be had to its international character and to the need topromote uniformity in its application and the observance of good faith in internationaltrade’. Article 7(2), on gap-filling, requires that these are ‘settled in conformity withthe general principles on which it is based’, or failing that, on the basis of theapplicable law.

Schlechtriem and Schwenzer first points out that it is essential to interpret the CISGautonomously and not with reference to a particular domestic law, even where theterminology used in the CISG might resemble national legal language.31 As far asthe uniformity of application its concerned, Schlechtriem and Schwenzer emphasisesthe need for courts and arbitral tribunals to take what is essentially a comparativeapproach, ie to take account of decisions handed down in other jurisdictions. Thisreviewer agrees with the authors that the absence of an ‘international supreme court’is a particular obstacle in this regard. Other sources of assistance, such as the CLOUTdatabase, the UNCITRAL Digest and the work of legal scholars on the CISG AdvisoryCouncil are noted. It is remarked that whilst academic commentary generally is ofrelevance, ‘the flood of publications prevents exhaustive surveys’.32

The reference to ‘good faith’ in Art 7 has resulted in an intense academic debate asto whether the CISG effectively imposes a duty to act in good faith on the parties, orwhether the good-faith principle is a more nuanced interpretative criterion. Moreover,should gaps be filled explicitly with reference to the principle of ‘good faith’, ie is ita general principle on which the CISG is based? Schlechtriem and Schwenzer takesthe view that the CISG does not impose a direct obligation on the parties to observegood faith. What is more difficult is the question whether ‘good faith’ is a generalprinciple underpinning the CISG, which seems to be supported here, albeit not on thebasis of Art 7(1) but on other provisions in the convention.

This chapter, as all the others, is peppered with references to both academicliterature and judicial and arbitral rulings, locating the views presented firmly withinthe large body of primary and secondary materials surrounding the CISG. All thecontributors have sought to distil divergent views as well as general agreement onparticular issues, and by following up references in the footnotes, a reader can delvefurther into relevant materials on a specific issue.

Those familiar with previous editions of Schlechtriem and Schwenzer will not besurprised by this reviewer’s generally positive assessment of the commentary. Foranybody working with the CISG, or simply interested in particular aspects of it, thisis an ideal first port of call.

In addition to the CISG, Schlechtriem and Schwenzer also covers the UN Conven-tion on Limitation Periods in the International Sale of Goods, a measure with con-siderably fewer ratifications than the CISG, but it complements the CISG in thosecountries which have ratified it. In addition to a number of appendices providing anoverview of the status of the CISG and the Limitation Period Convention, a list ofrelevant documents on the legislative process, as well as the text of the INCOTERMS2000 and the UNIDROIT Principles 2004, there is a lengthy bibliography running to

31. Ibid, p 124.32. Ibid, p 125.



87 pages. This is arranged alphabetically, although it might have been preferable toattempt to structure the bibliography on the basis of sub-headings. Of course, thevarious online databases supporting the CISG offer the possibility of searching bytopic, but the value of such a detailed bibliography would, in this reviewer’s opinion,be enhanced significantly by adopting thematic headings.

The new edition of Schlechtriem and Schwenzer is undoubtedly a welcome addi-tion to the literature on the CISG. The basic approach adopted by the authors remainssound and provides a familiar, authoritative reference work on a transnational con-vention which will be of ever-increasing importance for international commerce.Maintaining this in future editions will be a challenge if the volume of primary andsecondary material on the CISG continues to increase exponentially, but, for the timebeing, this challenge has been mastered.

christian twigg-flesner33

Constitutional Courts: A Comparative Study, edited by andrew harding and peterleyland.London: Wildy, Simmonds & Hill Publishing, 2009, xii + 376 + (index) 12pp (£19.95paperback). ISBN: 978-0-854-90063-3.

Constitutional Courts: A Comparative Study is a collection of articles on constitu-tional courts edited by Andrew Harding and Peter Leyland. The book is the first in aseries of edited collections on comparative law by the Journal of Comparative Law.It comprises 14 articles on constitutional courts covering a total of 47 different courts.This total figure is both a key strength and weakness of this book. The editors state thatthe aim of the volume is ‘to examine comparatively specialist constitutional courtsthat have been set up in many countries across the world’.34 The aforementioned totalconfirms that the collection certainly covers a large number of the constitutional courtsthat have been set up across the world; however the number of courts covered incertain articles in the collection means that, in some cases, the depth of analysisreached does not meet the expectations generated by the stated aim of ‘comparativeexamination’. The inclusion of three articles that each covers seven or more consti-tutional courts is the principal source of this collection’s problems.

In the introductory chapter the editors explain the thinking behind the editorialdecisions made in this book. The key decision is the editors’ definition of a constitu-tional court: ‘a “constitutional court” as defined here does not mean merely a courtacting in constitutional mode by interpreting a constitutional issue, but a specialistcourt having only “constitutional” jurisdiction’.35 This singular focus on constitutionalcourts as an institutional model of constitutional design is one the best aspects of thiscollection. Public lawyers from common law jurisdictions may not be fully aware ofthe prevalence or the variations in the design and operation of the constitutional courtmodel across the world, and the combination of the institutional focus and the rangeof courts covered in this collection make it an excellent introductory guide to thismodel.

The 14 articles are divided into four uneven sections, each covering a differentcontinent. There are eight studies on Europe, three on Africa, two on Asia and one on

33. Professor of Commercial Law, University of Hull.34. Constitutional Courts, p 1.35. Ibid, p 3.

Book reviews 169


South America. The inclusion of studies on constitutional courts on which there islittle English language material available is arguably this collection’s best feature.With the expertise of the two editors it was to be expected that this book’s coveragewould extend beyond the European constitutional courts which feature prominently inEnglish language publications. However, the editors somewhat undermine their deci-sion to go beyond the ‘traditional courts’ by creating a striking imbalance in thecollection’s coverage. There are seven articles where each covers a single Europeancourt. Of the non-European courts covered, only Egypt and South Africa receive thesingle-chapter treatment. This disparity reduces the extent of the originality andtherefore the desirability of this book, as it is easy to access English language articleson many of the constitutional courts which are covered in the single-court studies,such as France, Austria, Germany and South Africa. The same cannot be said ofTaiwan, Mali and the Dominican Republic for example, all of which are forced toshare the spotlight with other courts in the articles in this collection. This can probablybe partly explained by the availability of scholars with the relevant expertise, as theeditors note in the preface.36 Nevertheless, I would maintain that the book would havebeen improved by replacing the articles on Central and Eastern Europe, FrancophoneAfrica, East Asia and South America with four single-court studies of Poland, theIvory Coast, Taiwan and Columbia, respectively. Furthermore, the inconsistency in thenumber of countries considered in each of the articles does not give the impressionthat the collection is a ‘comparative examination’. The difference between the single-court studies and the regional surveys in terms of scope, approach and depth ofanalysis is so great that it is difficult to read them as forming part of the same‘comparative study’. Instead, it gives the impression that the book is simply a com-pilation of different articles on constitutional courts and no more.

Interpreting Constitutions: A Comparative Study, edited by Jeffrey Goldsworthy,does not have the same institutional focus as Leyland and Harding’s book, however itdoes demonstrate another approach to the edited comparative study.37 It dedicates 313pages to six articles on six countries. Each chapter provides an in-depth analysis ofconstitutional interpretation in each country. Although there is an inevitable variety inthe approach adopted by each of the authors to the task, the fact that they eachundertake the same task provides a certain level of consistency that allows thecollection to meet the expectations generated by the label of a ‘comparative study’.After reading the study, it is possible to have a basic understanding of the constitu-tional interpretation in each of the six countries featured, and the same cannot be saidof all of the courts covered in Harding and Leyland’s book.

To review the individual articles in Harding and Leyland’s book I will group themaccording to the number of courts covered. The nine single-country studies display avariety of approaches to the task of introducing their respective courts and, as with allthe articles in this study, I am limited to the briefest of assessments of each article.Anna Gamper and Francesco Palermo’s article on the Austrian Constitutional Courtsuffers for the absence of any significant discussion of the court’s case-law. It is fullof interesting details on the institutional features of the court, but as they seem to comeat the expense of any significant description or analysis of the court’s work, they arerather wasted. In contrast, Marie-Claire Ponthoreau and Fabrice Hourquebie’s studyof the French Conseil Constitutionnel strikes a better balance: it briefly explains its

36. Ibid, p v.37. J Goldsworthy (ed) Interpreting Constitutions; A Comparative Study (Oxford: OxfordUniversity Press, 1st edn, 2006).



most important features of institutional design and then dedicates the majority of thearticle to a discussion of the Conseil’s history. The article goes through the majorreforms and political controversies affecting the Conseil, as well as its most famousdecisions. The article on Germany’s Federal Constitutional Court by Kommers andMiller is a model study of its distinct institutional features and key cases, although itshould be noted that a fuller version of this study is already available in Kommer’scontribution to the aforementioned study edited by Goldsworthy.38 The highlight ofTania Groppi’s article on the Italian Constitutional Court is her discussion of thedifferent ‘stages’ of the court’s approach to constitutional review.

Jane Henderson’s article on the Constitutional Court of the Russian Federationprovides a detailed analysis of its establishment, the difficulties it has faced and itsmajor achievements. The article provides a reminder of the increasingly influentialrole played by the court in the Russian political arena. The study of the SpanishConstitutional Court is a fascinating critical evaluation of the performance and designof the court by Victor Ferreres Comella. The critical discussion concentrates on thecontroversies caused by the court’s jurisdiction of devolution disputes, its individualpetitions mechanism and its clashes with the ordinary judiciary. The article on theTurkish Constitutional Court by Örücü explains the key institutional features and themost controversial case-law of the Anayasa Mahkemesi. The description of the work-ings of the court is enlivened by her succinct explanation of Turkey’s fascinatingpolitical and cultural context. Clark B Lombardi’s article on Egypt’s Supreme Con-stitutional Court stands out for its focus on two key questions: why do authoritarianregimes create constitutional courts? And how have changing attitudes toward Islamiclaw affected the court’s jurisprudence? This analytical approach is rewarded as thearticle informs and provokes in equal measure. Heinz Klug elegantly summarisesthe well-known success story of the South African Constitutional Court in the last ofthe single-court studies.

There are five chapters in this book which each cover more than one constitutionalcourt. The first, on the Constitutional Courts of Central and Eastern Europe (CEE) byKasia Lach and Wojciech Sadurski, suffers from over-ambition and under-organisation. The article attempts to analyse the changing legitimacy of seven courtsin the context of the region’s shift from the post-regime-change era in which they wereestablished (the late 1980s and early 1990s) to the stable European democratic settingthey find themselves in today. This exercise may have been easier to execute if theauthors had focused on fewer than seven courts or if they had dealt with each courtseparately. This following passage perfectly illustrates the problems caused by theirapproach:

‘From this point of view, that is from the point of view of the actual practiceof CEE constitutional courts’ case law, their “score card” is overall positive but itis not unconditionally and unquestionably only positive, from the point of view offundamental democratic values. There was no room in this article even for a sketchof the case law . . .’39

Unfortunately, Babacar Kante’s study of Francophone West Africa is equally puz-zling. There are useful bits of information on the seven courts covered, but overall it

38. D Kommers ‘Germany: balancing rights and duties’ in Goldsworthy, ibid, pp 161–214.39. ‘Constitutional courts of Central and Eastern Europe: between adolescence and maturity’,p 79.

Book reviews 171


is incredibly difficult to follow. The following sentence demonstrates the article’sproblem: ‘in this regard, some courts have fewer powers than others but some are morepositively active’.40 As it is not always explicitly specified which countries are beingconsidered, this sort of sentence does not help the reader to understand the variationsthat are being described.

Tom Ginsburg’s article on constitutional courts in East Asia demonstrates that it ispossible to write an effective and concise comparative analysis of four different courtsin 25 pages. The key to its success is its organisation, with each court’s history(Thailand, Korea, Taiwan and Mongolia) described separately. These descriptions arefollowed by a concise analysis and exploration of reasons for the variables betweenthe four courts. The article provides a useful introduction to the workings of fourconstitutional courts. The joint editors’ study of Thailand and Indonesia is excellent.There is a considerable detail on the recent constitutional developments that haveoccurred in both countries. The analysis focuses on comparing the courts’ selectionprocesses, gateways, interpretative techniques and overall performance. These catego-ries provide a thorough overview of key aspects of institutional design and theirimpact on the work of the courts.

The last chapter of the book is perhaps the most perplexing: the authors, Frosiniand Pegoraro, attempt to classify 18 South American systems of constitutional adju-dication. The article is devoted to the issue of classification. It relies almost entirely ontables and this makes it difficult to follow. Most problematic of all, the study devotesa considerable amount of attention to discussing countries that do not have constitu-tional courts, such as Argentina and Brazil. In terms of style, content and geographyit is totally out of place with the rest of the book and this gives the impression that itwas added as an afterthought. It confirms the feeling that the book is a compilation ofdifferent articles on constitutional courts rather than a comparative study.

To repeat, Constitutional Courts: A Comparative Study is a good introduction tothe world of constitutional courts. It contains some excellent articles on well-knownand little-known constitutional courts. However, the inclusion of the regional surveys(Ginsburg’s excepted) adds little to the book. If anything the decision to include themworsens the book, particularly as the inconsistency it generates detracts from thebook’s cohesiveness. If the editors had replaced the regional surveys with single-courtstudies, the collection would have had no problems of consistency of approach ordepth of coverage, and, in turn, there would be less doubt over its status as a‘comparative study’.

jack simson caird41

40. ‘Models of constitutional jurisdiction in Francophone West Africa’, p 251.41. PhD candidate, Queen Mary University of London.



The Hamlyn Lectures 2008: Judging Civil Justice – By Hazel Genn

Documents

Transcript of The Hamlyn Lectures 2008: Judging Civil Justice – By Hazel Genn