A global archive of independent reviews of everything happening from the beginning of the millennium
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An Alternative Hypothesis
Venue of the Mackenzie-Stuart lecture: Faculty of Law, University of Cambridge
9 August 2016
The concept of an investment court system quietly expired before the referendum in the U.K. on 23 June 2016 but, ironically, the best neutral location for an investment court following a Brexit would be London. (You could bring a CETA or TTIP dispute to London for resolution knowing the U.K. was not party to either). This was not forseen and is not sufficient reason to have an unworkable concept back.
*Former Labour leader, Ed Miliband, is giving this a go today, releasing a video endorsing one of the candidates in the Labour Party leadership contest.
16 August 2016
The other leadership contender today had a video released of him sitting on the floor of a train on the way to Newcastle.
It really is speeding things up.
30 August 2016
With the Labour leader billed to say today that Labour will be "leading the way in harnessing the advances of new technology to organise political campaigning like we've never seen before" this is taken to mean we won't rewind and have Ken knocking on doors .
Truth be told, much of the ineffectiveness of central party administrations and their susceptibility to permitting bullying is due to them being hung up on canvassing.
Video Killed the Radio Star needs a refrain:
Video killed the dinosaur.
10 December 2016
If you want to concentrate on the local over a short timescale, like in a by-election, you have to outleaflet all your opponents across the whole of your constituency.
If not, you have to emphasise the big picture, the national picture, alongside the local because then screen based media can play a role in getting the message across in a compressed timescale.
The Tories at present have a relatively good national story, as the recent Sleaford by-election shows.
If you rely on door knocking, as Labour appeared to do in Sleaford, you get good feedback but you are unlikely to convince many. Wherever you come fourth you are not communicating.
Though I did not follow the campaign until the last two days, I prefer the Trump style: he communicates and both the political and non-political people could read the closing message.
In the old, canvassed world you would have made up your mind by three weeks out on the information you had by then.
31 December 2016
It may be that we are giving the rate of change a little push in the back but it is time.
Those who profess that their occasional winning of a seat is down solely to their canvassing prowess, who discount the greater effect of literature distributed at the same time and the impact of national politicians in the press and on screens, and that losses are nothing to do with them, are guilty of bovarysme, which is what T.S. Eliot termed 'the human will to see things as they are not'.
These bovaryistes will now have to vacate the field if we are to introduce video campaigning even for parish council elections.
Let us see what the candidates have to say!
Some pundits speculate that the data held by traditional political parties locally or nationally will be the key to electoral success. This is naive. You do not vote UKIP for any reason that is likely to show up on anything as effete as time expired data and in a year or two demographic and cultural change will mean there is no one left willing to canvass to acquire new but still poor quality data for you.
Nor will holding information in the detail Tesco Clubcard (for instance) has in the past been reputed to do be appreciated by the electorate if it were acquired.
The electronic door to the electorate lies with the global internet giants. Local power has long since shot its bolt. Even the keys to winning national elections, to some extent, are held by international entities.
Politics is often about competing realities or the new reality contesting with the old.
What democratic electoral politics is unforgiving of, though, is fantasy. The electorate punishes it mercilessly with fewer votes and when a fantasist is on a very rare occasion elected, marginalisation is their lot.
2017 will be a contesting ground but fantasy can have no place.
26 February 2016
I attended the 19th Mackenzie-Stuart Lecture today, given by the Advocate General of the Court of Justice of the European Union (ECJ), Julianne Kokott, on the subject of Investment Arbitration and EU Law, which was succinctly and elegantly presented.
My main interest is in any political aspects and any marginalisation of arbitrators' participation in resolving the disputes arising under international trade agreements.
Investor State Dispute Settlement (ISDS), which uses arbitrators expert in the subject matter, is the well-established means of settling disputes arising between investors and states under trade agreements, though the number of cases is very few.
It does appear that any differences that non-EU states currently may have with Europe over the future use of ISDS are with the European Commission and not with the ECJ.
The ECJ is concerned with the primacy of EU law over the domestic law of Member States and it is possible that an excessive number of disputes arising under bilateral intra-union investment treaties (BITs) being resolved by arbitration could pose problems for primacy but there have been no cases referred to it yet and so an interesting fictitious case study based around facts from the Vattenfall case was used to illustrate issues.
The European Commission would like to see the 190 BITs which have effect within the EU phased out.
Arbitration may award damages but not show regard for EU law.
Matters of EU law may have difficulty in finding their way to being referred to the ECJ because of limited appeal opportunities in the seat of the arbitration.
International public law treats EU law as regional and is not concerned with primacy.
ISDS, if used in upcoming trade agreements, like TTIP between the EU and U.S., and CETA between the EU and Canada, would fall within the realm of international public law.
The European Commission does not like parallel jurisprudence.
The fundamental freedoms guaranteed by EU law apply to EU legal persons but the freedom of movement of capital is guaranteed to both EU persons and non-EU persons.
The Advocate General's amusing point that in Germany the fees of the arbitrators are considered outrageous and that these, and having the other party's costs awarded against the losing party, may frighten parties into avoiding arbitration is one that the arbitration community needs to take onboard.
Political aspects were not covered in the lecture but they were touched upon in questions:
- Different positions are held within the European Commission on the substantive issues.
- Arbitrators are not people in the bad corner; it is really not so.
- Arbitrators are not a secretive group of people.
- Arbitrators are not somehow influenced by corporations.
- An Investment Court System would be neither one thing nor the other. It would be an expensive new structure. It might gain less acceptance than the traditional system.
I would add, perhaps a little tongue in cheek, that unlike the European Commission I am in favour of parallel jurisprudence.
Arbitrators do not trammel the sovereignty of nations. Once they have made their award their job is done. They are functus officio. They have no further institutional influence on the course the parties may take. The award can be taken to an ordinary court for enforcement, if necessary.
An international Investment Court System will eventually interfere with sovereignty. Its body of case law may become an immovable object in the way of national courts, even the ECJ.
Arbitral awards have overwhelmingly been private but that is because the parties have agreed to it. Without publicity for the award, in which one party has come away the clear or net winner, the trading relationship can continue if the parties so wish.
Arbitral awards have the potential to be legal precedents but scarcely ever are because they remain private.
If, as has been proposed, ISDS is made transparent, with open hearings and full disclosure of documents, then awards could become precedents and arbitrators would be participants in jurisprudence but on a one off basis and not institutionally.
Finally, the diplomacy of getting sovereign nations like the U.S., China and Canada to agree to an Investment Court System in future trade agreements is to borrow someone else's phrase 'one for the birds'.
29 July 2016
Sometimes it is best to seize the moment and say something contrary to accepted wisdom.
I think the referendum campaign in the U.K., that resulted in a Brexit vote, sounded the deathknell for traditional canvassing in England and probably the whole of the U.K.
Throughout his tenure as UKIP leader Nigel Farage uses the scantest of traditional canvassing - enough to provide a backdrop to cameras and that was it - yet pushed his party into frequently holding 20% or more of the vote by sheer force of personality alone.
I am yet to encounter a UKIP canvasser, away from the cameras, knocking on doors.
Boris Johnson, too, a person I am pleased to see now hold high office (I was also pleased to see my old friend, Amber Rudd, appointed Home Secretary, the fastest rise to that office in nearly a century) though he can guarantee a turnout of enthusiastic activists as necessary, is essentially a media specialist who can get his message across come what may and is little dependent on the party machine.
The referendum campaign substantially omitted traditional canvassing for leaflet drops, paid for mailshots and fairly lacklustre direct appeals to the electorate. The side that fielded the greater number of canvassers lost.
The Tories won the General Election in spite of canvassing not because of it. Experience suggests that except where an English seat or ward is marginal and a swing of less than 2% is needed to take it, knocking on doors and asking people how they will vote is ineffectual except where the candidate himself or herself is knocking on every door or is within earshot of the person doing it and can be called over to answer questions. People do not particularly like door to door selling, especially in prosperous areas, otherwise every business would be doing it.
As a rule of thumb, in a reasonably well run canvassing campaign, only one third of homes have someone answer the door to a canvasser within two attempts, mainly because people are not there. Halls of residence and similar premises frequently bar access for canvassers to residents, leading many younger voters to wonder why political parties cannot use the internet like everyone else.
If the door is answered, the canvasser is likely to talk to an average of one in three or one in two of the residents of the dwelling, with a bias towards the older residents, as the others may be absent or see no point in coming to the door.
Misleading answers as to voting intention are frequently given and it is the right of the prospective voter to give them as probing as to voting intention may be seen as an invasion of privacy. As a polling medium it is now too inaccurate to be of value.
Clearly, reaching one-ninth or one-sixth of the electorate (of which less than half will vote for you) is no basis from which to pursue a core vote strategy where you encourage it, and no one else in particular, to turn out on polling day. To do that you need over 20% of the electorate who you know have cast iron intention of voting for you and are not misleading you. Labour, traditionally, have had the best canvassing network in Scotland and turned it out in 2015 but still faced near wipeout. So much for canvassing. In 2016 the Conservatives did better than Labour in Scotland with no canvassing network to speak of.
I have a quote by Sadiq Khan, made before he became Mayor of London in 2016, from the Sunday Times, which all parties should perhaps note:
"You cannot win a General Election with a core vote strategy....
To win elections you've got to court more than your core vote or people won't give you a second glance."
A poster can be more effective at catching the imagination than canvassing but now is the turn of video.
Labour has over twice the membership of the Conservatives and has a tradition of on-street activity allowing members to express their viewpoint so it may be the last party to move away from traditional canvassing but the Tories should now move to internet advertising, outside of election periods when spend is strictly controlled, targeting specific demographics.
However, video has for at least a year been my bet to become the dominant communication medium between political parties and electors. There is, too, the possibility of a video going viral which canvassing, the horse-drawn Hackney carriage of the communications world, cannot do.
It is said that with video there can be a closer relationship between politician* and elector than can be achieved with television - or at least the illusion of such can be given.
Real-time video is playing a part in the run in to the French presidential elections though real-time may not yet be the best way to handle video. Facebook is used to reach the wide audiences, Twitter to propagate semi-viral content in the hope of it being taken up by traditional media.
Clearly, the more spread out a country the harder it is to canvass so one would expect the upcoming U.S. presidential elections to have many more videos.
Video speeds things up in a way traditional canvassing cannot.
12 December 2016
The U.K. government's presumed negotiating positions both before and after the referendum vote have been much criticised but what about the EU's ones?
Picking up on the discussion about TTIP above one of the ironies is that there will now be parallel jurisprudence relating to EU law.
One of the givens about the post-Brexit position is that the U.K. will not be subject to the jurisdiction of the European Court of Justice.
The U.K. will, however, legislate the acquis into its domestic law and its supreme court will have the final say on questions of law arising from it within the jurisdiction.
If they are wise, which is part of their purpose, the ECJ and the supreme court will allow each others judgements to be persuasive.
A problem with the EU is that it cannot make a fully flexible negotiating offer as a sovereign nation like Japan can or even the pre-referendum U.K. could have.
David Cameron's government sought a seven year pause mechanism for migration.
A good analysis would have thrown up the realisation that island states periodically enter times when they wish to control migration - because they always have - and a counter offer made, such as: you are free to control migration for a decade provided you receive no regional funds for the same period.
Of course this breaks at least two fundamental principles of the EU's governance but the position post-Brexit cannot easily be considered to be better for the EU.
If such a hypothetical offer had been made Mr Cameron would have had to face dilemmas: would 'regions' that might vote for a Brexit buy this if they were in receipt of regional funds? .... and a few others.
The EU was incapable of making such an offer so it remains hypothetical but it would have been a clear definition of issues for a referendum.
The position for the EU is now worse. With a less favourable security situation to the east and south, does it need to push the U.K. further offshore?
Curiously, on the basis of limited authority, Guy Verhofstadt appears to have recently made a flexible potential offer: UK citizens who wish to have it could have associate citizenship of the EU after Brexit.
This could solve at least one problem. More retirees, who scarcely compete in the job market, settle on the Continent from the U.K. than move in the other direction to enjoy British weather.
In return, Britain might offer EU citizens coming to work automatic five year authority, subject to renewal conditions. This would limit permanent migration and be a better offer than that made to non-EU citizens.
Existing rights would be afforded those in place before Brexit.
Continental politicians may be against à la carte solutions but there is nothing to say a new treaty has to be symmetric.
TTIP is effectively dead but we hear today that the EU is trying to negotiate something not dissimilar with Japan. Headline features are that the 10% tariff barrier on Japanese cars would be removed and Japan would open up to EU agricultural exports.
So it seems anomalous that some EU actors are set upon imposing such barriers on U.K. - EU trade because a post-Brexit Britain would have similar concerns about migration and legal sovereignity to Japan.