Volume 11, Issue 1

On September 14, 2010, in Akzo Nobel Chemicals Ltd. v. EU, the European Court of Justice (ECJ) unanimously decided that communications between in-house counsel and company executives are not subject to the attorney client-privilege, which is called the professional privilege in Europe. Many companies and professionals had hoped that the ECJ would hold that in-house counsel was entitled to assert the professional privilege. In this article, we argue that the decision should not have been either surprising or of great concern to companies based in or doing business in Europe.The decision in Akzo Nobel should not have been surprising because the ECJ was applying well-established principles. In 1982, the ECJ had ruled in AM&S Europe v. Commission that to be privileged a communication between attorney and client must relate to the client’s right of defense and must be with an independent/external lawyer.In addition, the decision should not be of great concern to companies in Europe for three reasons. (1) In very few European countries are in-house counsel members of the bar and are granted the professional privilege. Even if the ECJ had recognized the privilege, its decision would only have applied to cases involving the Europe Union, not to cases involving individual countries in Europe. (2) The professional privilege that the ECJ excludes for in-house counsel differs in significant ways from the U.S. attorney-client privilege. Had the ECJ recognized the privilege, the features of this privilege would have been different from those of the attorney-client privilege. (3) In the U.S., the attorney-client privilege is especially important because of the existence of discovery, while in Europe there is no discovery. Because discovery is essentially nonexistent in Europe, the risk of disclosure of communications between in-house counsel and their employers in private litigation is very small. Broad requests for pretrial discovery in Europe emanating from cases pending in the U.S. are limited under reservations adopted by most European countries under Article 23 of the Hague Convention. In public litigation in Europe, the authorities may seek to obtain documents from companies, but these materials will be protected by the professional privilege when they involve confidential communications between outside counsel and the company (subject to similar exceptions that apply in the U.S.), if the company has retained outside counsel, which is typically the case both because of the significance of the matter and the fact that in-house counsel cannot represent the client at trial.

Modern Islamic family laws in the form of statutory codified fiqh, dated back to Ottoman Law of Family Rights 1917, supposedly was initiated with the prime purpose of overcoming certain juristic doctrines disfavoring women. Nevertheless, from the female perspective, such a state-sponsored approach has failed to ameliorate the conditions of women the world over on many aspects including methodological grounds, in spite of some progress towards such an end. The same assertions are made against various state Islamic family law enactments in the Malaysian context. To remedy the situation, given the cultural sensitivity and moorings of different interest groups in the country, the approaches have been diverse. Examining the issue from a purely academic, nonpartisan jurisprudential perspective also points to serious problems of methodology alongside with attitudinal ones. This paper argues that a paradigm shift from the current school-bound cum eclectic approach to that of gender sensitive jurisprudential choice of the juridical views would be an alternative way to reform the law.

The allocative and productive inefficiencies generated by cartels have induced many governments to tackle them aggressively, thus making those agreements increasingly difficult to detect. Rewarding firms that help expose cartels with immunity or fine reductions is generally believed to enhance the effectiveness of antitrust enforcement, but no consensus exists as to how to frame leniency policies in order to maximize the incentives for firms to co-operate with antitrust authorities.The goal of this paper is threefold: (i) to compare the US, EU, and Italian leniency policies in order to identify their key differential features; (ii) to employ game theory as a yardstick to assess the different solutions and (iii) to single out the most effective ones for an optimal leniency scheme.To this end, this paper will first discuss, drawing upon insights from Rubinfeld, Leslie, Motta, and Polo, the application of game theory to cartels and leniency programs in general. Second, it will carry out a comparative assessment of the US, EU, and Italian systems. Once the key distinctive features have been identified, they will be analyzed through the lens of game theory in order to determine the incentives those solutions create for co-operation by cartel members with antitrust authorities.To conclude, specific recommendations for an optimal leniency scheme will be presented, having specific regard to: i) the eligibility of cartel instigators, ringleaders, and coercers for antitrust leniency; ii) penalty reductions for follow-up whistleblowers; iii) Amnesty Plus-style incentives to report membership in multiple cartels; and iv) decreasing penalty discounts according to co-operation order.

Access to justice can be enhanced in many ways. What is the most effective way to do this, given limited resources? Three perspectives are used to compare access to justice policies: (1) costs and benefits, (2) transaction costs (diminishing market failure and government failure), and (3) legal empowerment (enhancing people’s control over their lives and their bargaining position). The analysis suggests that legal information and education strategies should have a higher priority, followed by improving access to (informal) adjudication. Civil legal aid on an individual basis is a rather costly strategy. Moreover, legal aid is less likely to create just outcomes on its own: a judge without a lawyer is more valuable than a lawyer without a judge.

Poverty should be conceived as a social plague to combat, yet in today’s United States, in times of extraordinary wealth and productivity, it has been definitely normalized. Rather than fighting against its economic roots, the U.S. system attacks its human most poignant expression: the homeless. The article shows how, during the last 30 years, the U.S. legal system has been responsible not only for the production of homelessness, but also for the construction of the homeless as a social enemy to destroy. From the protection of the homeless’ positive rights to the negation of his negative rights, the U.S. legal system’ parable tells us a story of fundamental rights impairment, of annihilation of the feeling of human solidarity, of regression towards the dark times of the “homo homini lupus” law, a story that is doomed not to be confined to the United States.

This paper investigates the institution of neutrality from the perspective of Siyar, “Islamic International Law.” It analyses relevant views of contemporary Muslim scholars, particularly with reference to the division between the “abodes of Islam” (dar al-islam) and the “abode of disbelief” (dar al-kufr), and their discussion on a third abode, the dar al-‘ahd or “abode of the covenant.” The paper concludes that temporary forms of neutrality may be acceptable under Islamic law under certain conditions without a re-interpretation of the classical theory of external relations and the division of territory.