‘Indians are tough negotiators!’ he exclaimed as he grabbed his Blackberry. Final negotiations of the final sentences of a G20 document were still ongoing. Two additional Blackberry keyboard-interruptions of our conversation were needed before he said ‘Its done’ and relaxed.

Why is the OECD good at rule making? He started with a paradox.

Only Five Instruments per Year

‘It’s because it is not primarily a rule making organisation. We’re technical. We work on data and share that amongst the membership. And have elaborate peer review systems through which countries can learn from each other what works and what does not. Take a look at our guide on how this works.  In essence, it’s about building a level playing field through best knowledge and practices.’

‘The record shows: our acquis has about 250 rule instruments. That may sound like a lot but if you place that in the context of the 50 years of existence of the OECD then it amounts to only about 5 per year. Compare that to the UN and its production of resolutions and conventions and we are a small factory.  But we also make rules. And we have a typical OECD angle to doing that.’

‘Economics is internalised in the organisation. This brings with it a strong emphasis on data. Being evidence-based. There is an element of that in all our inter-governmental production, including rule-making.’

Ahead of the Crowd

‘We have also been very good at being ahead of things and finding our niche de regulation. It was the OECD that started rule making in the area of the environment and which developed the “olluter pays” principle in the early seventies, later used at the 1992 Rio Conference of the UN. We were already working on privacy in the early eighties. Other areas: double taxation, the internet, corruption, corporate governance, and corporate social responsibility.’

‘Multi-disciplinarity is also a key element of our work. The approach starts from a technical level. There, where the problem occurs. And it is those experts that form the foundation for the rule making. We build up from there.’

Trust

When I asked what lay behind this impressive track record at a deeper level he did not need to think long: ‘Trust and quality. There is a relatively high level of trust between the membership and between the membership and the secretariat. And we all work at high standards.’

‘However, there are also challenges. Firstly, the “ideological cement” that held a lot of the organisation together during the Cold War is less clear. There is more diversity now. We also have to make sure that our processes retain the multi-stakeholder flexibility that they have always had and that they do not become unnecessarily formalistic. The way the world is changing also forms a challenge. We used to represent 80% of world GDP. That is now 60% and it will surely decrease even further. So we must adapt to attract ‘more GDP’ to our work. The process of admitting new members is slow because it is very thorough. I lead accession negotiations, for example the one recently concluded with Chile. As a state you have to be able to absorb and work with the acquis of the OECD before you can join. And you have to submit to the peer review system. So there is a limit to admitting new members. But we have found other, creative ways of enlarging our footprint; for example, by opening OECD conventions to non-OECD states. There is however a limit to that as well: one must guard against an excessive ‘pick and choose’ culture because that can undermine the system.’

‘Two forces can work against each other: it is important to involve new members (representativeness, impact), but a very large membership can cause fragmentation, undesirable politisation, and reduce flexibility.  It’s a matter of balancing and managing that well.’

The Comparative Advantage of Being Technical

‘We have well-established systems of consultation with stakeholders. Through the Business and Industry Advisory Committee (BIAC) we have a long tradition of cooperation and consultation with business. Consultations with trade unions are organised through the Trade Union Advisory Committee (TUAC). The OECD Watch network also helps us consult with broader civil society. We are now consulting more with parliaments and opening certain documents to public web-based consultations. It is important to remain embedded in the full breadth of society. The OECD is in many ways a network organisation. Member states, non-member states, experts, all held together by a high level secretariat.’

The future?

‘Speaking in my personal capacity, I could imagine two areas in which the OECD might work on better rules. Firstly, in the field of labour and social policies. We have seen from the current economic crisis that the quality of economic development is also very important. We need to re-think the system. A second area might be that of macro economic policies. Building a new consensus, post Washington. But whatever we do, we must never loose being technical and evidence based!’

Sam Muller, Director HiiL and Law of the Future project leader

When he first popped up in our brainstorm sessions I pictured him as a Wizard of Oz-like figure. Hidden away an imposing place that was not easy to get to. And once one outsmarted all his defenses and penetrated his hide-away, one learned that we was nothing more but an old man with a lot of bluff.

Who strategises for the national legal system? We asked Joris Demmink, Secretary-General of the Dutch Ministry of the Security and Justice.

“Our Ministry certainly does.”, he said, “We have a directorate for strategy, especially for this purpose.” I knew that to be true: in 2007, that department published the only Ministry of Justice future study that we have been able to find: Justitie over Morgen, or, freely translated, ‘Justice about Tomorrow’. It presents four scenarios up to 2015 for the Ministry, and we found them very useful, even though they were aimed at a ministry and not at a legal system as we are endeavouring to do. Since publishing them, the department has also published 2010 study that tries to assess what is actually unfolding.

Digging deeper we learned that on the political level there is hardly any time to deal with broad, long-term strategic ‘legal system issues’. Occasionally ministers might make time for that, but they are generally caught up in the day-to-day politics of running the country and the Ministry. So, the secretary-general of the ministry, strategises, provided he of she stays within the parameters that the political bosses set.

Does parliament strategise on legal systems? Formally, parliament is the lawmaker. In spite of that, it does not, or rarely seems to be, the case. Here too, the political weather of the day, week, month, of maybe year, determines much of what happens. No looking 10 years ahead. There is of course, one all-determining moment when parliament strategises, and that is when it adopts, amends, or refuses to amend a constitution. But, again, that’s a rare bird: the last time that happened, one often hears in The Netherlands, was 1848.

Who strategises in the EU, that legal order within which the Dutch legal order functions?

“The Lisbon treaty which entered into force on 1 December 2009 is a hybrid vehicle that has given clarity in some aspects” explains Joris Demmink, “but it led to unexpected consequences in other areas.”.  His analysis: from an institutional point of view, the ‘winners’ of post-Lisbon Europe are the European Council (government leaders) and the European Parliament with its expanded powers. Those that have ‘lost’ are the Council of Ministers and the Commission.

This means that more power is now concentrated within the major member states. For a relatively small country like The Netherlands, it means that it can best bet on a close relationship with the Commission, hoping to influence draft legislation in an early stage. Achieving marked changes to proposals once they come to the Ministers is virtually impossible for a small country in post-Lisbon Europe.

So one EU ‘strategist’ is the Commission, with its right to initiate legislation, its position as the only bureaucracy that can approach a pan-EU view, and its technical expertise.

“The internal market,” according to Joris Demmink,”is not likely to be the subject of fundamental strategizing at the EU level. That building is almost finished. A new harmonisation drive can be expected in the fields of criminal procedure and private law. This might stretch citizen’s acceptance of EU involvement in national affairs.”

Thus, we had covered the two most obvious strategists for a EU member state: the national government and the EU governmental level. There is however one other strategist, even more amorphous than the others mentioned before, that cannot be forgotten: non-state actors.

Demmink was clear: “Private actors of all sorts have become more important. Also in political and diplomatic terms, private actors make their presence felt, sometimes complicating the work of national governments in international and domestic affairs.”

With private parties’ big role in globalisation, their quest to find the most reliable and expedient means to obtain justice is becoming ever more relevant to courts, governments and citizens. Private actors rely on public authorities for many of these services and seek out a host state most suited for their purposes. This relationship, where private actors depend on public institutions is one of the most important and underexplored facts of present-day internationalisation of law. Both hold a degree of dissimilar power (money versus institutions of law).

“Insurance companies are in many ways leading in this quest to find justice. Just about every interest imaginable can be insured these days, which is why effective conflict resolution in complex environments and with multi-jurisdictional parties is part of the core business of insurance companies. You might wish to get in touch with insurers as you develop your scenarios.“

So, perhaps the strategist of the legal system does resemble the Wizard of Oz a little: a critical figure but, at the same time, a lot less coherent and imposing than one might wish to imagine.

Sam Muller, Director HiiL and Law of the Future project leader

Enforcement is, in my view, the key challenge for the law of the future. Dysfunctional states or states which do not enforce laws as we do within the EU – either because they cannot or because they choose not to – present a very serious challenge to international business, for which a level playing field is critical.

One aspect is the fact that dominance of the West in politics and law is at an end. Within the EU, we are very used to internationalisation of law, but that is not something that is universal. We increasingly see examples of situations in which international law was deemed inconvenient as a result of which an actor simply withdrew or pulled out of an agreement. We have seen this in respect of bilateral investment treaties, the Energy Charter and ICSID. It would seem that states did not entirely realise what they signed up to when they signed a bilateral investment treaty. When they do realise, there are instances in which they violate them and them simply say “sue us if you don’t like it”. That, as you know, is rarely a serious option. Ecuador is an example of a state that has resorted to nationalizations that have left investors out in the cold. The example of Libya has shown how little the international community can do: it survived for a long period under a heavy international sanctions regime.

There is a really risk that, through their elites, badly functioning states will join forces with other badly functioning states, leading to a proliferation of bad practices and perhaps even a race to the bottom because multinational companies from those states will – from a commercial perspective – be at an advantage compared to responsible companies like Shell.

So, having signed up to something does not always mean living up to something.

It took hundreds of years to reach the level of legal sophistication that we now see in the EU. Laws, politics, and culture all developed. And there was much bloodshed. There were many failures. Unifying law within the Union came last. First, trade was looked at. Then, slowly politics came and only now are we working on a serious EU legal order. In the EU it was also realised that having states sign up to it without the capacity to implement was not very useful. We do not seem to have learned that lesson yet at the international level. There, we try to compress those hundreds of years into a much shorter period. It might be possible that through globalization we can speed up the process somewhat, but it is ludicrous to become impatient if all is not up to snuff within a short period of, say, ten years. Patience is required and the problem is not likely to go away within the next two decades.

Another aspect of the enforcement aspect is the confusion it can cause. Multinational enterprises are often faced with a choice between two illegals. An example: the US Dodd-Frank Bill requires complete disclosure of all fees (royalties, tender fees) that are paid in contacts with governments. In other words, the law of the US says: “tell us”. In China, we are faced with the exact opposite. There, the information described above is confidential, a state secret. So in China they say: “keep it to yourself”.

With resort to law often being limited, business often needs to engage in managing the politics of the places that it works in. This generally means a mixture of political and commercial action. In the past, admittedly, business has not always behaved appropriately in badly functioning states. However, there is a tendency now to go after the one that you can get – the Western-based multinational company – rather than states where the problem originates. The real place to focus on is the country, not the business. Civil society is a very important player in that and must focus on doing more.

I would say that until the day comes that you have a world policeman, and one that will treat all actors equally, self-regulation is the best option. This notion of a level playing field is very important, as I said.

The enforcement issue and its growing significance is perhaps a move away from internationalisation of law: reversed internationalisation. The days of the cozy Western club that dealt with things through internationalisation of law are perhaps over, at least for the coming two decades.

Sam Muller, Director HiiL and Law of the Future project leader

“There has been a clear movement towards more international law over the past decades, with some acceleration in the last 20 years,” said Aryeh Neier, as a clear opening statement. “Looking at the two decades behind us, the European Court of Human Rights, the Inter-American Court of Human Rights, and the African Court on Human and People’s Rights are either new or more significant than they once were.”

Hearing this from a man who played an important role in the civil rights movement in the US in the 1970s, who was the founding director of Human Rights Watch, and who has been director of the Open Society Foundations since 1993, puts things in perspective. His bottom-line is undeniable and quickly forgotten in the turmoil of what we read in the daily media reports we are exposed to. But the positive is not evenly spread and one should not overstate the move towards internationalisation of human rights and similar standards, it emerged during our conversation.

In the ASEAN region, there is little movement in the direction of internationalisation of human rights and it will probably not happen in the next 20 years. In the Middle East that is also doubtful. In Africa, the picture is mixed, with ECOWAS as a hopeful and well-developed example and SADEC and East Africa not moving in the right direction. ECOWAS’ impressive development shows the value of sub-regional organisations. But – there is no doubt – regional organisations will also be more important in the coming decades.

He agreed with us that the law of the future is not only closely connected with the question whether internationalisation will continue or not and that the public – private divide also plays an important role.

“It is hard to see how the financial means for a lot of what is needed will come from if business is not involved,” he said. “And it is also hard to see why civil society organisations are more or less ‘legitimate’ in doing what they do than business is in doing what it does.” Both need to show to society at large that they have something valuable to offer and that they are effective in doing so.

The Extractive Industries Transparency Initiative (EITI) is a good example of how government, business, and civil society organisations can come together to enhance accountability, transparency, and with that general stewardship of extractive resources. The EITI Board consists of 20 members representing implementing countries, supporting countries, civil society organisations, industry and investment companies and it is only through that Board, which needs to satisfy itself that EITI standards are complied with, that new countries can become an EITI member. This is rather different from the 1945 model in which states monopolised membership and standard-setting in international organisations. The Research Watch Institute and Publish What you Pay are examples of another initiative, albeit ones without state members, to create standards and monitoring systems in the extraction industry that contribute to the implementation of human rights and environmental standards by working and thinking systemically rather than in silo’s.

“Having a legal anchor for some of this sometimes helps,” Aryeh Neier did wish to add. If there are laws that set certain standards in connection with stock offerings, then, quite often, the rest can be left up to the market. The US Dodd-Frank bill is an example.

Civil society continues to play an important role in shaping the global legal environment, even by helping to redefine a solution outside the legal binary “compliant or not compliant” paradigm through fora in which all actors in a system work together around standards they jointly design and sign up to. That will continue.

Sam Muller, Director HiiL and Law of the Future project leader.

This guest blog post is submitted by Lijun Zhao, student at China University of Political Science and Law, Mater 2010; University of Wales, Banger, UK, Ph.D candidate, 2010 Sep until now.

The Problem of Transport Law: To Be International or National Rules?

Transport law has traditionally been seen as an area of international law. However, multi-modal transport, which combines a series of different modes of carriage, has challenged this presumption.

Nowadays, the law on multimodal transport is actually nationalized in several facets. In my opinion it should become international again, as this creates several problems. The main problem encountered by the parties of a multimodal contract originates from the potentially wide variety of terms and conditions of carriage. It becomes worse when contractual provisions extend the liability rules on a particular leg to overall carriage and then  conflict with mandatory rules of the related leg.

Thus, multimodal transport raises the question of how to achieve international uniformity. Although the existing conventions partially scratch the surface of  a liability regime on multimodal contracts, presently no convention deals with them at a general level. In order to formulate a set of uniform rules to govern the liability regime of multimodal transport, two alternative solutions have been developed respectively in Europe and the United States. The uniform liability model is the preferred solution in US law, whereas the network liability system has its foothold in Europe. As a result, modern transport law is regionalized. However, this creates problems when the carriage is performed between the different regions.

This discrepancy between the European and US multimodal transport regime will possibly become more acute in the coming decades. There are several reasons that point to this direction. Firstly, any attempt to introduce a uniform multimodal regime has so far been unsuccessful. Until now, neither attempts to regulate the multimodal transport in a new global convention by UNCITRAL, nor proposals to achieve common EU rules have significantly enhanced the emergence of global uniform rules on transport regime.

Secondly, in light of the recent development of US case law, the uniform liability model will encounter challenges. If achieving uniformity in the chain of contracts by adopting a Himalaya clause (which extends the ocean carrier’s immunity from liability to his servants or agents in a sea leg as well as in other legs of carriage) is impossible, the uniform liability model would be replaced by a network liability model. However, the network model is not clear about the carrier’s liability limitation after shipment and before damage or loss has actually occurred and located. In addition, locating damage can also be a demanding task and therefore not always possible.

Thirdly, it seems that a legislative trend has emerged in which the uniform liability model is preferred. Yet, this is still not an ideal solution. Even though the UN Convention on Carriage of Goods Wholly or Partly by Sea (Rotterdam Rules) mainly relies on the uniform solution, it upholds regionalization by adoption of the extension of the maritime liability regime to the inland leg by reducing the inland carrier’s liability. Moreover, the Rotterdam Rules are so complicated that it will not be ratified by the majority of countries in next two decades.

Lijun Zhao, student at China University of Political Science and Law, Mater 2010 and University of Wales, Banger, UK, Ph.D candidate, 2010 Sep until now.

The Law of the Future Joint Action Programme is about creating a forum to discuss how we might envisage the global legal environment of the future. It goes without saying that the next generation should be included in this discussion. This ‘Young Talent’ is playing an important role during the Law of the Future Conference by organising a special workshop on 24 June.

This guest blog post is submitted by Lina Jasmontaitė, student of Law at Tilburg University.

Self-regulation as a solution ensuring children’s online safety

*In the context of this essay the concept of self-regulation is understood by the definition proposed by Jeanne Mifsud Bonnici, according which self-regulation is “a) a flexible type of regulation model; b) a set of rules developed and accepted by those who are taking part an activity; c) a regulatory process”.

The past half a century has been marked by the extraordinary development of technology. The European Union (EU), as well as other global actors, have been confronted by and challenged to adapt innovative technologies. This challenge is reflected in a vast number of policy documents calling for legal measures. The Digital Agenda, set by the European Commission, is the most recent attempt to schedule goals regarding the technological development for the upcoming decade.

In essence, this document supports Lawrence Lessig’s thesis that although “perfect control of internet is not possible [this] does not mean that effective control is not possible”. The document calls for a prompt action regarding trust and security of online activities in order to ensure a vibrant digital single market. It invites to fight lack of interoperability, lack of investment networks, insufficient research and innovation efforts, lack of digital literacy, rising cybercrime and risk of low trust networks. Children online security is pointed out as well, as one of problems to be tackled.

Indeed, children constitute a significant part of estimated 250 million daily internet users in the EU. A recent study conducted by the London School of Economics indicates that 75% of the European children are regular Internet users. Moreover, the study as well shows that while experiencing the opportunities that the Internet brings, children are exposed to a substantial risk. 21 % of 11-16 year-olds has been exposed to various types of potentially harmful user-generated content, such as pornography or racial discrimination. Therefore, there is no doubt that youth below the age of 18 should be regarded as a vulnerable group, which accordingly requires specific treatment within Internet regulation. Furthermore, all of the EU Member States are contracting parties to the United Nations Convention on the Rights of the Child, which is reiterated in the Charter of Fundamental Rights of the EU, and which says that states are obliged to act in the best interest of the child, ensuring that every child is protected from being hurt and mistreated, physically or mentally.

Consequently, it follows that states have an obligation to guarantee that the new generation, which is ‘born-digital’, can safely enjoy their childhood in this digitalised world. However, Internet operates in a borderless space and national regulation has a limited impact. Hence, Lawrence Lessig has been right in saying that “Internet demands a new understanding of how regulation works”. It requires an innovative approach towards law, which is deemed to be offered by means of self-regulation.

Indeed, self-regulation in cyberspace seems to be an alternative to state regulation for the following reasons. Firstly, it resonates well with one of the core principles of the EU, namely the subsidiarity principle, which constitutes that, decisions concerning European issues should be taken as closely as possible to the citizen on the level which is the most appropriate. Secondly, self-regulation gives an incentive for private actors to participate in setting the regulatory framework. Thirdly, inclusion of private actors into decision making process not only provides technical expertise which ensures enforcement and effectiveness of legislation, but it also reduces time and money costs. Fourth, self- regulation offers flexibility in a number of modes available to the market players. Finally, interaction between the governing bodies and private actors constitutes a win-win scenario, since it ensures the gradual evolvement of rules which adapt both, technological innovation and market demands.

However, fairly limited literature is available on the effectiveness of self-regulation in the context of child online safety. One should consider exploring self-regulation in combination with formal law making, and its possible application for Internet regulation in a more elaborate way.

Lina Jasmontaitė, student of Law at Tilburg University

Sam Muller | “One of the scenarios I see most clearly is one in which the national state gets more and more intertwined with regional public authorities,” says Judge Geert Corstens, President of the Supreme Court of the Netherlands (Hoge Raad) as we start our interview in his stately office. A peaceful Scheveningen beach by Hendrik Willem Mesdag – boats, fishermen and the low afternoon sun – hangs prominently on one of the walls, adding to the reflective nature of our conversation. President Corstens considers carefully and speaks in a calm voice that almost always reduces very complex things to more simple terms, without loosing nuance: “This allows for internationalisation, but also leaves national room for manoeuvre.”

Looking at the future, he reckons with three forces: continued internationalisation, further digitalisation that will require more rules, and, lastly, a less automatic use of judicial intervention.

Firstly, continued internationalisation: “I find it very difficult to envisage a total stagnation of internationalisation. In our recently published Annual Report 2009 – 2010, the notion of internationalisation is studied. We found that internationalisation plays a bigger role, but if you compare it with 10 years ago one sees that the process of internationalisation has accelerated. The role of the judge in this respect has not fundamentally changed.’’

As the other side of the same coin, there will be more discussion and debate regarding the national room for manoeuvre within that internationalisation trend. In the work of the Hoge Raad – for whom ‘international law’ mostly means ‘EU law’ – regional organisations (the EU) seem to be important in reconciling these two. They can be an effective way of keeping international law closer to the daily lives of people. “Law works best when it is as close as possible to the people it serves,” Luis Moreno Ocampo, Prosecutor of the International Criminal Court once said to me (S.M.) when we were discussing the complementarity principle in a particular situation. He was so right. For the national lawmaker, in particular those in a well-developed regional legal order as the European Union, regional organisations are Janus-faced. They are part of the global legal environment the lawmaker needs to deal with (the ‘stuff out there’), but they can also be an articulation of the ‘own-ness’ against badly understood or unwanted aspects of the global legal environment (the ‘our thing’, against the ‘out there’). The European Convention on Human Rights is more of a reality for European citizens than the more remote UN International Covenant on Political and Civil Rights.

“In my book on European criminal law I distinguish three models according to which regional organisations can work,” President Corstens explains. Firstly, there is the national model. In this model, the regional organisation makes the rules that its area of competence allows it to make, but it leaves enforcement of those rules up to national level. In the EU: rule making at EU level, enforcement at national level, whereby the EU does not really care whether the states organise enforcement through constitutional law, criminal law, administrative law, private regulation, or other means.  The second model is a mixed model.  Again, the regional organisation (EU) makes the rules that its area of competence allows it to make but in this model it also prescribes how enforcement must take place, without getting into the actual enforcement itself. Lastly, there is the Union model. Here, there is rule making and enforcement at the EU level. The best and most developed example of this is the EU anti-trust legislation. It is interesting to note that that experience has never really moved into other areas, like terrorism or fraud.

President Corstens reflects further: “The national model still leaves many distortions in the market. In the longer term, the EU will most likely gradually develop towards the Union model. However, in the next 20 years I do not really see that: the mixed model will probably be the most widely used. It leaves room for own, national preferences, but it also harmonises.” He continues: “Perhaps we will slowly see the emergence of a European Public Prosecutor in about 15-20 years, probably first in respect of some states (permitted under the Lisbon Treaty; S.M.) and then for the whole of the EU. It is to be expected that that will also push the creation of a European judiciary for criminal law, for example, for EU fraud. But this is very much a European development. It is not to be expected that China, India and the US will be open to something like this.”

Another filter in dealing with the global legal environment is the national constitution. The Netherlands has an exceptionally strong monist system. “In Germany, France, and Poland for example, the assumption is that in the end, there is always national control when it comes to fundamental rights. It would seem that that is becoming the ruling approach, even within ‘fortress EU’. In this sense perhaps there may be stagnation. At the same time, I think it is inevitable that borders will continue to open-up. There may be a temporary slow down or even reversal in some areas, but in the long term it will continue. The world is opening up and resistance against that is difficult to maintain,” says Corstens.

The principle of subsidiarity and the empowerment of national judges as European Union judges and European Convention on Human rights judges is the last step to make rules agreed to at the international level work at the national level. However, more knowledge may be needed to learn more about the ‘ownership’ judges experience of international rules. A recent HiiL study on judges in the first and appellate levels (excluding supreme courts), in the German state of North Rhine-Westphalia and in the Netherlands as EU judges concludes that EU law is not applied on a large scale and that most judges see EU law as just another set of rules they have to work with. Clearly, getting international rules to ‘sink in’ and find a strong anchor at the national level is not that straight forward.

Is crime fighting not an area in which we can expect more internationalisation, given the internationalisation of crime?

The global legal environment when it comes to crimes seems to be rather small.  There is the UN Convention on Transnational Crime, there are conventions on corruption, and there is acrimonious discussion on terrorism. The impact of the conventions that exist is limited and there is hardly any movement towards new conventions. In the EU there seems to be little movement towards the establishment of an international criminal jurisdiction. The main internationalisation movement there is based on the mutual recognition system.

Corstens: “What I see as the biggest problem, at any rate at the European level and probably also at the international level, is that we all see it and that nobody really does anything. In other words: negative jurisdiction conflicts. Positive jurisdiction conflicts can be resolved through organisations like Eurojust, but negative ones are much harder to deal with. If the French are investigating a particular criminal act and they find that it is spread out over Germany, Holland, Poland, and Spain, and that the French segment is relatively small, there really is not an incentive to work together. There will be an incentive to dodge. A proposal to deal with this: you need to create a European fund to combat crime. That fund would put a premium on dealing with cross border crime.  In this way you make it attractive to pick up these cases.”

In all this, President Corstens does not see the role of the national judge fundamentally changing. One worry is the increased criticism on judges, much of this coming from the executive. Examples are Italy, where it is very serious, but also France, Hungary and The Netherlands.  It looks like this will continue. What can you do about this, thinking in terms of scenarios?

“That judges, but, hopefully also the executive continues to make it clear why we have judges, why we have a balance of power: for the freedom of us all. We as judges need to continue to send out this message, and the executive and the legislative powers should do the same. If we respond to this properly – and it is very important that we do so – the negativity will diminish.”

A hopeful end then. Solutions to internationalisation challenges can be found. Judicial intervention does not have to loose out to the executive.

“These are very important issues. Judges are limited shapers of the legal environment; we generally react. So in that sense, the Law Scenarios to 2030 are more for others to use. I hope they do.”

Sam Muller, Director HiiL and Law of the Future project leader.

The Law of the Future Joint Action Programme is about creating a forum to discuss how we might envisage the global legal environment of the future. It goes without saying that the next generation should be included in this discussion. This ‘Young Talent’ is playing an important role during the Law of the Future Conference by organising a special workshop on 24 June.

This guest blog post is submitted by Sofia Saarinen, student of International and European Law at The Hague University.

Time management as a challenge that law and legal systems
need to cope with

The future will always hold new challenges for us to cope with.  This is true also in the field of law. Our world is constantly changing – technology develops and new ways of doing things are introduced. This means that law and legal systems that exist to provide protection, to outline rules and guidelines and to maintain order while shaping politics, economics and society in numerous ways have to cope with the changing world and be able to answer all the challenges these changes create. Then, what are the biggest challenges law and legal systems are facing?

Perhaps one is the ongoing struggle against time. It is known that most legal proceedings take quite some time before anything binding is achieved. This fact is related to the many phases that are involved in legal proceedings. While each of these phases require their own time, the outcome is that reaching a decision or judgment in one case may take many years to complete. In certain cases, decisions and judgments would be needed faster, for example when child related issues are in question.  Time will continue to be a huge challenge to overcome as phases of legal proceedings are not likely to reduce in number. All those phases are needed in order to provide people with sufficient legal protection. Would there be a way in future to improve time management and provide faster proceedings and secure legal protection at the same time?

Struggle against time applies also to drafting processes of new laws. It is often the case that new laws cannot be created rapidly enough to answer to the need of the changing world. As the time goes on, legal systems have to be able to evolve and create laws regarding new issues in order to regulate areas that did not play a role in society before, for example in the case of internet related laws. It is vital that law can evolve in such a way that it will be able to develop and maintain its central function as a system of rules and guidelines that shape society. Therefore, managing time plays an important role in coping with rapid changes; and this will be even more true, in the future, as developments unfold in an increasingly faster pace.

When the new generation succeeds the old one with new beliefs and values, changes will happen. What the future will hold for law and legal systems de facto once we get there, nobody knows for sure. But as long as there is a will to adjust and cope with the challenges we are facing now, it will be possible to answer all future challenges and develop society towards more adaptable direction.

Sofia Saarinen, student of International and European Law at The Hague University
(the Netherlands)

Laura Kistemaker | Parag Khanna, a very dynamic and young thinker, just published a new book:  How to run the world. That would be somebody you’d want to interview when you are member of a team that is working to understand challenges of the law of the future and the future of law. Luckily, he thought we were worth giving an interview too.

The Law of the Future Joint Action Programme is about creating a forum to discuss how we might envisage the global legal environment of the future. It goes without saying that the next generation should be included in this discussion. This ‘Young Talent’ is playing an important role during the Law of the Future Conference by organising a special workshop on 24 June.

This guest blog post is submitted by Victoria Daskalova, student at Tilburg University.

What are the greatest challenges that law and legal systems need to cope with?

It might not be too far-fetched to guess that people have always relied on some sort of system of rules to solve conflicts in their societies. But even if preventing or ending conflict in society is what law is about (as has been suggested by some legal philosophers), it should not be forgotten that law is as well one of the ways to solve conflict in society.

Law has become complicated. I can hardly imagine a time in which law would have been more technical than it is today and in which more has been expected from judges and lawyers. Courts and judges nowadays deal with cases in competition law, securities and company law, intellectual property and medical liability law. A complaint that is often heard, at least in competition law cases, is that judges are incompetent or that they simply do not understand the economic matters at hand. As such complaints increase, it is worth wondering whether the problem lies with the judges or with our way of using law to regulate so many areas of our lives.

The consequences of using law more and more are perhaps better visible in the US, where it seems that anyone can sue anyone for anything. In an essay “How the Lawyers Stole Winter”, author Christopher Daly engages with this issue by recounting how his children may no longer skate freely on the ice of the local pond the way he used to: municipalities, scared from liability lawsuits, put a “No skating” sign on the pond. The essay makes us wonder about the freedom of the old days when people would not be afraid of being sued for everything.

In addition, it seems that in the old days societies had different ways of resolving disputes and ending conflicts. A small ethnically homogenous society with active members would find ways to find the best solution for itself. Councils of elders in such society were not always enforcing law when deciding or mediating in community disputes, but they were resolving disputes effectively, and the decisions were accepted, even though they were not binding.

These alternative mechanisms seem to have diminished in importance in modern Western societies. Social bonds seem to have diminished, and individualism and pluralism prevail as values. In this situation, people look to law to bridge the gaps of communication in society. But law cannot substitute a meaningful process of political debate, and the more people look to law to solve every single dispute that arises, instead of focusing on reaching agreements on the fundamental political debates in the societies they live in, the more law will be struggling to meet their demands.

Victoria Daskalova, student at Tilburg University.