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Amicus AmicusC u r i a e The Journal of the Society forC Advanced u r Legal i a Studies e Inside ... Director’s Welcome Carl Stychin Read more on page 3 Editor’s Introduction Michael Palmer Read more on page 5 Foreign Act of State— A Practical Guide Mary V. Newbury Read more on page 6 Mandatory Mediation and the Rule of Law Michael Bartlet Read more on page 50 Fairness in Algorithmic Decision-making Adam Harkens Read more on page 84 Notes 97 Obituaries 122 News and Events 126 Contributors’ Profiles 135 Series 2 No 1(1) 2 Amicus Curiae CONTENTS Director’s Welcome IALS welcomes Dr Colin King Carl Stychin . 3 . 128 The governance of data-sharing for Editor’s Introduction genomic and other health-related Michael Palmer . 5 data in Africa Articles Nóra Ni Loideain . 129 Foreign Act of State—A Practical WG Hart Workshop 2020 Guide from Buttes Gas to Belhaj Lindsay Farmer . 131 Mary V. Newbury . 6 IALS forthcoming events Mandatory Mediation and the Rule . 132 of Law IALS 2019-2020 Visiting Research Michael Bartlet . 50 Fellows Fairness in Algorithmic Decision- . 133 making: Trade-offs, Policy Choices, Profiles of contributors to Articles and Procedural Protections and Notes Adam Harkens . 84 . 135 Notes Resolving Disputes in 18th-Century England Francis C. Boorman . 97 Amicus Curiae Contacts CLOCK: A Transformative Experience Editor: Professor Michael Palmer, Maria Federica Moscati . 103 SOAS and IALS, University of London Regional Approaches to International Law Production Editor: Marie Selwood Jed Odermatt . 108 Email address for all enquiries: WG Hart Workshop for 2019 on [email protected] Pensions: Law, Policy and Practice . 119 By post: Eliza Boudier Amicus Curiae Obituaries Charles Clore House Anthony Dicks 17 Russell Square Michael Palmer . 122 London WC1B 5DR John Gardner Nicola Lacey & Timothy Endicott If you would like to contribute an . 124 Article or short Note to a future issue, please visit the Amicus Curiae News and Events webpages to view the Style Guide and Good progress with the IALS submission information. Transformation Project David Gee . 126 Series 2, Vol 1, No 1 Introduction 3 DIRECTOR’S WELCOME CARL STYCHIN Director, IALS, School of Advanced Study, University of London a wealth of experience in legal n behalf of the Institute of O publishing and I am grateful that Advanced Legal Studies (IALS) and they have agreed to take the the Society for Advanced Legal journal forward. In particular, I Studies (SALS), it gives me great am pleased that, with this issue, pleasure to welcome you to this Amicus Curiae becomes fully ‘open ‘relaunch’ issue of the Society’s access’. This is in keeping with journal, Amicus Curiae. our remit as an Institute. While Amicus Curiae has played an there will be exciting new features important role in advancing legal to the relaunched Amicus Curiae, scholarship at the intersection of what will continue unchanged is a academia and legal practice for a dedication to the publication of number of years. In large timely, original, and relevant measure, this has been due to the scholarship for a broad efforts of the journal’s recently community of readers. retired editor, Julian Harris. I As the journal of the SALS, the want to begin by expressing my role of Amicus Curiae is gratitude to Julian for his inextricably tied to that of the dedication to Amicus Curiae. I also Society. Since I became Director of want to thank the numerous the IALS in January of this year, Consultant Editors who supported one of my priorities has been to the journal since its inception as reinvigorate the Society. In well as the many authors who particular, it has seemed to me have provided content. that the time is right for the I have every confidence that Society to return to the original Amicus Curiae has a bright future vision of a dedicated group of in supporting the legal community ‘friends’ of the Institute. To this under our new Academic Editor, end, we have established a new Professor Michael Palmer (see Advisory Group for the Society page 5), and supported by our under the capable leadership of Production Editor, Marie Selwood. Professor Tony Bradney. We are Together, Michael and Marie bring developing a programme of events 4 Amicus Curiae Mid-transformation: the current exterior of IALS which we hope will be of interest advantage of the opportunity to to a wide audience. become members of the Society, which is free and open to all. Fortunately, the Transformation Project of the Institute ensures that I very much hope that you enjoy we will continue to have the this first issue of the new series of optimum physical space in central Amicus Curiae. I look forward to London to welcome friends and seeing you at upcoming events guests (see David Gee’s news story supported by the SALS, and more on page 126). I encourage all generally, at the Institute. supporters of the Institute to take Series 2, Vol 1, No 1 Introduction 5 EDITOR’S INTRODUCTION MICHAEL PALMER SOAS and IALS, University of London empirical questions, and which he new series of the long- T offer knowledge and insights that established journal, Amicus Curiae, the author or authors feel to be is intended to serve as a forum for important and likely to interest promoting scholarship and those who practise and administer research that brings together law, or who teach and research in academics, the legal profession, the field of legal studies, or both. and those involved in the Amicus Curiae is the official journal administration of justice. It also of both the Institute of Advanced welcomes interdisciplinary con- Legal Studies (IALS) and the Society tributions which advance our for Advanced Legal Studies (SALS) knowledge and understanding of and it also reports on their current legal topics and problems. developments. In keeping with the The pace of social change and aims of both the Society and the technological innovation today is Institute, and in order to facilitate very rapid, and often raises dialogue and innovative thinking, questions that need to be debated, Amicus Curiae is freely available reflected on, and in some cases and published online with open acted on by way of legal reform. The access in the SAS Open Journals journal therefore publishes on a System. broad range of issues including As editor, I take on new access to justice, legal policy and responsibilities with the regulatory issues, contextualized assistance and support of a analysis of law and the relationship number of colleagues from IALS of legal studies to other disciplines. and other members of the It also offers not only more formal University of London. To them I essays (‘Articles’) but also shorter express my gratitude. I also ‘Notes’, intended primarily to draw appreciate the efforts of my our attention to new and significant editorial predecessors including, developments in legal practice and in particular, Julian Harris. My administration and in the study of sincere thanks to all those who law and law-related issues. have contributed important We encourage submissions that service and support to Amicus. address doctrinal, theoretical, or 6 Amicus Curiae, Series 2, Vol 1, No 1, 6-49 FOREIGN ACT OF STATE—A PRACTICAL GUIDE FROM BUTTES GAS TO BELHAJ MARY V. NEWBURY Inns of Court Visiting Fellow (2018), IALS (University of London)1 Abstract Foreign act of state, the principle that a domestic court will not ‘sit in judgment’ over the acts of foreign countries, is coming under increasing scrutiny, as illustrated by the recent case of Belhaj v Straw (2017). This article traces the emergence of the principle out of traditional rules of private international law that, according to Belhaj, continue to constrain the doctrine. The essay provides a practical guide to the doctrine for use by other judges, who will usually come across act of state in the context of a motion to dismiss or to strike out pleadings. The author reviews five key cases which have considered whether a ‘unifying’ doctrine exists apart from choice of law rules of private international law; whether the principle is one of jurisdiction, non-justiciability, or something different; and the nature of the ‘public policy’ exception. She suggests that the ‘disaggregation’ of act of state into four ‘rules’ posited in Belhaj will remain the organizing framework of the doctrine in the medium term— despite Lord Sumption’s attempts to condense it into one or two rules. She suggests the Supreme Court is departing from the notion of act of state as a broad and inflexible principle of jurisdiction and from the notion that courts should use it in cases where requested by the government to avoid embarrassment to its foreign policy. The author disagrees with the observation, made in Yukos Capital SAR v Rosneft Oil Co (2012), that non-justiciability—the notion that certain issues are inappropriate for domestic courts to adjudicate—has ‘subsumed’ act of state. Rather, it is doubtful that non-justiciability should continue to be regarded as part of the law of act of state. Whether act of state is restricted to acts taking place within the territory of the foreign state, whether it applies to all types of 1 The author wishes to express her thanks to the four Inns of Court for their sponsorship of the Inns of Court Visiting Fellowship 2018 and to the Institute of Advanced Legal Studies (IALS) at the University of London for making the IALS library available to her. Series 2, Vol 1, No 1 Foreign Act of State—a Practical Guide from Buttes Gas to Belhaj 7 property, whether it applies to injuries to the person, and whether it applies to lawful as well as unlawful executive actions, or to judicial acts, still remain uncertain.