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Thesis Chapters by Andrew Higgins
Australia’s introduction of plain packaging of cigarettes, which is a world first, has prompted i... more Australia’s introduction of plain packaging of cigarettes, which is a world first, has prompted international legal challenges under both the World Trade Organization (WTO) and the bilateral investment treaty between Australia and Hong Kong. These international legal challenges raise questions as to how scientific evidence used to justify public health measures is, or should be, treated in international economic law. For instance, what is the significance of uncertainty or gaps in scientific knowledge? How should a tribunal or panel treat divergent scientific opinions? What quantity and quality of scientific evidence is required to establish a causal connection between a measure and its objectives under the applicable standard of proof? Certain features of Australia’s plain packaging laws make these questions particularly pertinent: they will be operating amongst a suite of other measures directed at the same objective; they will be implemented in a context where external social forces may seek to undermine their impact; and this is the first time they have been tried anywhere in the world. These factors make it difficult to measure their effectiveness in the real world with precision. However, despite these difficulties, we find that both, investor-State tribunals and WTO panels and the Appellate Body have demonstrated a welcome degree of flexibility in how they approach scientific evidence. That said, a number of key areas of uncertainty remain in international economic law, and the disputes over plain packaging could play an important role in bringing clarity to those areas.
Papers by Andrew Higgins
SSRN Electronic Journal
This editorial note considers the legal controversy surrounding Novak Djokovic's deportat... more This editorial note considers the legal controversy surrounding Novak Djokovic's deportation from Australia, and the Full Federal Court of Australia's rejection of Djokovic's judicial review of the Minister's decision to cancel his visa in Djokovic v Minister for Immigration [2022] FCAFC 3. It is not, however, a conventional case note, but rather uses the case to consider the 'public health' (to adapt a phrase) of the rule of law and the legal system in Australia as revealed by the pandemic. It sets out the public health background and the political context for the Australian Government's decision to cancel his visa to play in the Australian Open, before considering Djokovic's unsuccessful legal challenge to the decision. The case highlights the extremely limited substantive and procedural rights individuals enjoy under Australian law as against the state (especially, but not only, non-citizens). If the level of judicial deference to the opinion of the Minister in Djokovic is legally sound-though there are good reasons to think the decision is wrong-there is an urgent need for some form of bill of rights to guarantee fundamental process and substantive rights to whomever the State or the public might turn on, whether it be Serbian tennis superstars, Czech doubles specialists, refugees or whistle-blowers.
Oxford Journal of Legal Studies, 2017
This article examines current debates about delivering access to justice in a shrinking state, sp... more This article examines current debates about delivering access to justice in a shrinking state, specifically the Supreme Court's claim in Coventry v Lawrence that it is impossible to deliver access to justice for all litigants without widely available legal aid, and broader claims that the state is failing in its duty to provide access to justice for all. It argues that the level of public subsidy and the balance between public and private funding for civil justice systems is a question of distributive justice. A critical review of private funding models demonstrates that some have denied access to justice, however requiring litigants to pay for their own access to justice, or to even subsidize access for other litigants, is defensible in principle and practice. Private funding models based on cross subsidization between users could substantially reduce the access to justice 'gap' experienced by many, provided they meet certain criteria.
SSRN Electronic Journal, 2014
Modern Law Review, 2010
This article considers whether the rationale for legal advice privilege applies to corporations. ... more This article considers whether the rationale for legal advice privilege applies to corporations. It examines the rationale for legal advice privilege in the aftermath of the disagreement between the Court of Appeal and the House of Lords in the Three Rivers litigation, and argues that the rule of law rationale for advice privilege endorsed by the House of Lords is based largely on the needs and behavior of individuals. The paper examines the case for recognising advice privilege for corporations. Recent developments in corporate law and governance, especially in relation to directors' duties, have arguably reduced the need for a corporate privilege. Public and large private companies in particular already have sufficient incentives to obtain accurate legal advice about their affairs even without a privilege. There are also sound policy reasons for restricting the right of corporations to claim legal advice privilege given its costs to the administration of justice.
Legal Studies, 2012
The paper examines the controversial issue of referral fees for personal injury claims. It looks ... more The paper examines the controversial issue of referral fees for personal injury claims. It looks at the function of referral fees in the civil justice system, their relationship to the guarantees of access to court and the right to seek legal assistance in ECHR Art 6, and the debate about promoting access to justice or a litigious society. It examines the experience of the referral fees market in England and Wales, where the costs of referrals have risen dramatically and there is concern that referrers are auctioning their customers to the highest bidder rather than helping them find competent lawyers. Sir Rupert Jackson recommended banning referral fees in his report on the costs of civil litigation, and the Government has announced it will implement this recommendation. The paper considers the potential effects of a ban on competition in the legal services market and its compatibility with UK and EU competition law. The paper argues that a combination of better regulation of the i...
Science and Technology in International Economic Law
Civil Justice Quarterly, 2022
This editorial note considers the legal controversy surrounding Novak Djokovic's deportation from... more This editorial note considers the legal controversy surrounding Novak Djokovic's deportation from Australia, and the Full Federal Court of Australia's rejection of Djokovic's judicial review of the Minister's decision to cancel his visa in Djokovic v Minister for Immigration [2022] FCAFC 3. It is not, however, a conventional case note, but rather uses the case to consider the 'public health' (to adapt a phrase) of the rule of law and the legal system in Australia as revealed by the pandemic. It sets out the public health background and the political context for the Australian Government's decision to cancel his visa to play in the Australian Open, before considering Djokovic's unsuccessful legal challenge to the decision. The case highlights the extremely limited substantive and procedural rights individuals enjoy under Australian law as against the state (especially, but not only, non-citizens). If the level of judicial deference to the opinion of the Minister in Djokovic is legally sound-though there are good reasons to think the decision is wrong-there is an urgent need for some form of bill of rights to guarantee fundamental process and substantive rights to whomever the State or the public might turn on, whether it be Serbian tennis superstars, Czech doubles specialists, refugees or whistle-blowers.
Oxford Journal of Legal Studies, 2017
This article examines current debates about delivering access to justice in a shrinking state, sp... more This article examines current debates about delivering access to justice in a shrinking state, specifically the Supreme Court’s claim in Coventry v Lawrence that it is impossible to deliver access to justice for all litigants without widely available legal aid, and broader claims that the state is failing in its duty to provide access to justice for all. It argues that the level of public subsidy and the balance between public and private funding for civil justice systems is a question of distributive justice. A critical review of private funding models demonstrates that some have denied access to justice, however requiring litigants to pay for their own access to justice, or to even subsidize access for other litigants, is defensible in principle and practice. Private funding models based on cross subsidization between users could substantially reduce the access to justice ‘gap’ experienced by many, provided they meet certain criteria.
Australia’s introduction of plain packaging of cigarettes, which is a world first, has prompted i... more Australia’s introduction of plain packaging of cigarettes, which is a world first, has prompted international legal challenges under both the World Trade Organization (WTO) and the bilateral investment treaty between Australia and Hong Kong. These international legal challenges raise questions as to how scientific evidence used to justify public health measures is, or should be, treated in international economic law. For instance, what is the significance of uncertainty or gaps in scientific knowledge? How should a tribunal or panel treat divergent scientific opinions? What quantity and quality of scientific evidence is required to establish a causal connection between a measure and its objectives under the applicable standard of proof? Certain features of Australia’s plain packaging laws make these questions particularly pertinent: they will be operating amongst a suite of other measures directed at the same objective; they will be implemented in a context where external social forces may seek to undermine their impact; and this is the first time they have been tried anywhere in the world. These factors make it difficult to measure their effectiveness in the real world with precision. However, despite these difficulties, we find that both, investor-State tribunals and WTO panels and the Appellate Body have demonstrated a welcome degree of flexibility in how they approach scientific evidence. That said, a number of key areas of uncertainty remain in international economic law, and the disputes over plain packaging could play an important role in bringing clarity to those areas.
SSRN Electronic Journal
This editorial note considers the legal controversy surrounding Novak Djokovic's deportat... more This editorial note considers the legal controversy surrounding Novak Djokovic's deportation from Australia, and the Full Federal Court of Australia's rejection of Djokovic's judicial review of the Minister's decision to cancel his visa in Djokovic v Minister for Immigration [2022] FCAFC 3. It is not, however, a conventional case note, but rather uses the case to consider the 'public health' (to adapt a phrase) of the rule of law and the legal system in Australia as revealed by the pandemic. It sets out the public health background and the political context for the Australian Government's decision to cancel his visa to play in the Australian Open, before considering Djokovic's unsuccessful legal challenge to the decision. The case highlights the extremely limited substantive and procedural rights individuals enjoy under Australian law as against the state (especially, but not only, non-citizens). If the level of judicial deference to the opinion of the Minister in Djokovic is legally sound-though there are good reasons to think the decision is wrong-there is an urgent need for some form of bill of rights to guarantee fundamental process and substantive rights to whomever the State or the public might turn on, whether it be Serbian tennis superstars, Czech doubles specialists, refugees or whistle-blowers.
Oxford Journal of Legal Studies, 2017
This article examines current debates about delivering access to justice in a shrinking state, sp... more This article examines current debates about delivering access to justice in a shrinking state, specifically the Supreme Court's claim in Coventry v Lawrence that it is impossible to deliver access to justice for all litigants without widely available legal aid, and broader claims that the state is failing in its duty to provide access to justice for all. It argues that the level of public subsidy and the balance between public and private funding for civil justice systems is a question of distributive justice. A critical review of private funding models demonstrates that some have denied access to justice, however requiring litigants to pay for their own access to justice, or to even subsidize access for other litigants, is defensible in principle and practice. Private funding models based on cross subsidization between users could substantially reduce the access to justice 'gap' experienced by many, provided they meet certain criteria.
SSRN Electronic Journal, 2014
Modern Law Review, 2010
This article considers whether the rationale for legal advice privilege applies to corporations. ... more This article considers whether the rationale for legal advice privilege applies to corporations. It examines the rationale for legal advice privilege in the aftermath of the disagreement between the Court of Appeal and the House of Lords in the Three Rivers litigation, and argues that the rule of law rationale for advice privilege endorsed by the House of Lords is based largely on the needs and behavior of individuals. The paper examines the case for recognising advice privilege for corporations. Recent developments in corporate law and governance, especially in relation to directors' duties, have arguably reduced the need for a corporate privilege. Public and large private companies in particular already have sufficient incentives to obtain accurate legal advice about their affairs even without a privilege. There are also sound policy reasons for restricting the right of corporations to claim legal advice privilege given its costs to the administration of justice.
Legal Studies, 2012
The paper examines the controversial issue of referral fees for personal injury claims. It looks ... more The paper examines the controversial issue of referral fees for personal injury claims. It looks at the function of referral fees in the civil justice system, their relationship to the guarantees of access to court and the right to seek legal assistance in ECHR Art 6, and the debate about promoting access to justice or a litigious society. It examines the experience of the referral fees market in England and Wales, where the costs of referrals have risen dramatically and there is concern that referrers are auctioning their customers to the highest bidder rather than helping them find competent lawyers. Sir Rupert Jackson recommended banning referral fees in his report on the costs of civil litigation, and the Government has announced it will implement this recommendation. The paper considers the potential effects of a ban on competition in the legal services market and its compatibility with UK and EU competition law. The paper argues that a combination of better regulation of the i...
Science and Technology in International Economic Law
Civil Justice Quarterly, 2022
This editorial note considers the legal controversy surrounding Novak Djokovic's deportation from... more This editorial note considers the legal controversy surrounding Novak Djokovic's deportation from Australia, and the Full Federal Court of Australia's rejection of Djokovic's judicial review of the Minister's decision to cancel his visa in Djokovic v Minister for Immigration [2022] FCAFC 3. It is not, however, a conventional case note, but rather uses the case to consider the 'public health' (to adapt a phrase) of the rule of law and the legal system in Australia as revealed by the pandemic. It sets out the public health background and the political context for the Australian Government's decision to cancel his visa to play in the Australian Open, before considering Djokovic's unsuccessful legal challenge to the decision. The case highlights the extremely limited substantive and procedural rights individuals enjoy under Australian law as against the state (especially, but not only, non-citizens). If the level of judicial deference to the opinion of the Minister in Djokovic is legally sound-though there are good reasons to think the decision is wrong-there is an urgent need for some form of bill of rights to guarantee fundamental process and substantive rights to whomever the State or the public might turn on, whether it be Serbian tennis superstars, Czech doubles specialists, refugees or whistle-blowers.
Oxford Journal of Legal Studies, 2017
This article examines current debates about delivering access to justice in a shrinking state, sp... more This article examines current debates about delivering access to justice in a shrinking state, specifically the Supreme Court’s claim in Coventry v Lawrence that it is impossible to deliver access to justice for all litigants without widely available legal aid, and broader claims that the state is failing in its duty to provide access to justice for all. It argues that the level of public subsidy and the balance between public and private funding for civil justice systems is a question of distributive justice. A critical review of private funding models demonstrates that some have denied access to justice, however requiring litigants to pay for their own access to justice, or to even subsidize access for other litigants, is defensible in principle and practice. Private funding models based on cross subsidization between users could substantially reduce the access to justice ‘gap’ experienced by many, provided they meet certain criteria.