Oracles of the Law: Understanding Legal Information

LEGAL INFORMATION AND THE ORACLES OF THE LAW Nikitas E. Hatzimihail, University of Cyprus

William Blackstone, Commentaries on the Laws of England (1765) But here a very natural, and very material, question arises: how are these customs or maxims to be known, and by whom is their validity to be determined? The answer is, by the judges in the several courts of justice. They They are are the the depositaries depositaries of of the the laws cases of doubt, and who are bound by an oath to decide according to the law of the land. The knowledge of that law is derived from experience and study; from the viginti annorum lucubrationes, which Fortescue mentions; and from being long persoually accustomed to the judicial decisions of their predecessors. And indeed these judicial decisions are the principal and most authoritative evidence, that can be given, of the existence of such a custom as shall form a part of the common law. The judgment itself, and all the proceedings previous thereto, are carefully registered and preserved, under the name of records, in public repositories set apart for that particular purpose; and to them frequent recourse is had, when any critical question arises, in the determination of which former precedents may give light or assistance. And therefore, even so early as the conquest, we find the pr teritorum memoria eventorum reckoned up as one of the chief qualifications of those, who were held to be legibus patri optime instituti. established rule to abide by former precedents, where the same points come again in litigation: as well to keep the scale of justice even and steady, and not liable to waver with every new judge s opinion; as also because the law in that case being solemnly declared and determined, what before was uncertain, and perhaps indifferent, is now become a permanent rule, which it is not in the breast of any subsequent judge to alter or vary from according to his private sentiments: he being sworn to determine, not according to his own private judgement, but according to the known laws and customs of the land; not delegated to pronounce a new law, but to maintain and expound the old one. [Commentaries [Commentaries on on the the Laws Laws of of England, England, bk bk. . I, I, pp laws; ; the the living living oracles, oracles, who must decide in all For it is an pp. . 68 68- -70 70] ]

John Dawson, The Oracles of the Law (1970) [T]he reasoned opinion, issued by the judge as a function of his office, is a modern product. [T]he assumption by judges of a duty to publish their own official statements of reasons has transformed their relationship to other agencies for the declaring and making of law. We now take this duty for granted but in its present form it came relatively late, not only to the English law tradition but still more in systems like the French and German that have derived continuous inspiration from he Roman law. The publication of reasoned opinions has become common practice among appellate courts in a large part of the modern world. But style and content will vary widely, as does the degree of self-revelation that their authors provide. Full disclosure can be avoided by using cryptic or stereotyped modes of expression or general propositions that are left unadorned. But as the law reports pile up all over the world and innovations by judges become more apparent, lawyers are led irresistibly to give attentions to what courts say

Case law in the modern European legal tradition Diversity between national legal systems as to the place of the case law in the formal hierarchy of sources. BUT Everywhere: case law an authority employed in shaping, mapping and interpreting the law Impact of European law Vital role of court decisions for EU and ECHR law Important role of national (Member State) courts in EU governance EU legal/financial support of case law databases; interconnection initiatives; - e-justice (and e-law EU standards (namely ECLI)

Outline of Paper Oracles of the Law Jurisprudence: The roles of case law in the administration of justice Comparative: Access to and management of legal information Traditional & digital media Reporting and citation practices Governance: Stakeholders in the creation of the legal information institutions E.g. in ECLI implementation, eJustice and eLaw Normative: balancing of interests and values Publicity, good governance v Personal Data?

1. On the jurisprudence of case law Beware of neo-formalism! Modern case law # Roman imperial rescripta (or constitutiones) Form follows function Legal realism, not legal cynicism Case law has power Auctoratitate rationis NOT Ratione auctoritatis

2. Access to and management of legal information Traditions of law reporting and publishing of case law Common law: reporting the case Continental: selection of cases / excerps / in edited form European courts: convergence of sorts EU push towards further convergence / homogeneous standards Medium neutral citation standards: ECLI and MNC

3. Governance aspects of eLaw ECLI ECLI implementation National legal traditions? Relative power of stakeholders? Information technology specialists Judicial staff bureaucracies Lawyers (practioners / judges / academia)

4. Balancing values: GDPR Anonymization Competiting values Protection of personal data Right of publicity; transparency; effective access to all information that could allow us to evaluate the reasoning of a decision with impact as to law A plea to consider impact and the functions served

CyECLI is co-funded by the EU

Cyprus: a small jurisdiction Third largest island in the Mediterranean Population in the million (or less) Six Districts (essentially 2 large, 2 smaller) Rapid move from agrarian / early industrial to services economy Demographic shifts Internationalization (services, expats, ECE immigrants) CyECLI is co-funded by the EU

Cyprus: A Mixed Jurisdiction British colonial rule (1878-1960) and its legacy English common law tradition as the basis for Core private law (esp. obligations) Commercial and Company Law Criminal law Procedural law Continental enclaves: Family law Administrative law Creeping influence of EU law CyECLI co-funded by the e-Justice Program of the European Union

Court Structure (pre-2022) One Appellate Court (Supreme Court of Cyprus) District Courts: five Family Courts: four Administrative Court (since 2016) Tribunals: Rent Control Tribunal, Employment Tribunal; Court Martial CyECLI is co-funded by the EU

Court structure (today) Split or spin-off at the top level High Court Supreme Constitutional Court An intermediate Appellate Court New specialized courts Esp. Administrative Court of International Protection Spin-offs at the trial level New Commercial Court New Admiralty Court CyECLI is co-funded by the EU

Publication of Judgments All Supreme Court Cases published Traditionally, in print official publication Cyprus Law Reports ( , . . .) Trial court judgments available in public but not included in Reports Some judgments published in reports (1970s 1980s) and journals (today) No continental-type Law Journals (Zeitschriften) What to do with trial court judgments? Online databases CyECLI is co-funded by the EU

Case Law Identification in Cyprus pre- ECLI Common law system: litigants names A common law CLI is supplemented by the Report citation For example: . . (2005) 1 . . . 1293 (2005) 1 . . . 1293). ). Given the delay in C.L.R. publication, references to judgments not yet published in the Reports are often completed by the application number (and, often the date the judgment was rendered) For example: . , . , . .63/10, . 17.12.2013 . .63/10, . 17.12.2013). CyECLI is co-funded by the EU

Cyprus: ECLI as a necessity EU obligation Strong reliance on case law The needs of practice mean less time for more research Uniformization of case law references ( identifier ) sorely needed Cy ECLI is making it possible to establish a common language with regard to case law, especially in foreign languages See confusion as to how to best translate . . . CyECLI is co-funded by the EU

Cyprus: ECLI as an opportunity ECLI will allow a uniform system of citation As of now, not even the English system of citation is followed Somewhat chaotic situation As a result: the first name of litigants often being included in much-circulating references to judgments (even from cases involving highly personal circumstances) CyECLI is co-funded by the EU

Cyprus: ECLI as an opportunity ECLI will allow a more informative system of citation / identification For example: a judgment issued on 2016-09-06, on an application made on 2014-03-24 in the course of Civil Appeal 214/2012 It takes years for Supreme Court Reports to be published and a proper common law identifier to be given to the judgment by that time, it is often too late to replace the haphazard citation CyECLI is co-funded by the EU

Cyprus: ECLI as an opportunity Standardization of reporting / management ECLI implementation will lead to the effective integration of meta-data into the legal information world Court Reporters and legal-information institutions will have to make a decision on case identification upon reporting Efficiency Effectiveness CyECLI is co-funded by the EU

Cyprus: ECLI as a challenge Creating order from (relative) chaos So-called chaos is familiar (and manageable) So-called order brings a new perspective ( too Continental for notables? ) Referring to a case by litigants names is too entrenched a practice to be abandoned (nor does it need to be) CyECLI is co-funded by the EU

Cyprus: ECLI Prospects The Office of the Supreme Court s Registrar (Department of Publications) was nominated as national ECLI coordinator ECLI implementation in Cyprus is marking the first ECLI implementation in a common-law jurisdiction As such, it offers the prospect for a potential contribution of CY-ECLI, if successfully implemented, beyond Cyprus CyECLI is co-funded by the EU

Cyprus: ECLI Prospects Successful ECLI implementation in Cyprus needs the following: A partnership between thinkers (academia) doers (legal information institutions and specialists) practitioners (the Bar) Judiciary and Reporters (Supreme Court) Comparative work and cooperation with the ECLI experts abroad in government, judiciary, IT/LIT, academia including legal information and stakeholders in the common law world beyond the EU Considering citation and reference practices across the legal system CyECLI is co-funded by the EU

Cyprus: The CyECLI Project The University of Cyprus has led a team of Cyprus institutions in bidding for an e- Justice grant regarding ECLI implementation University of Cyprus Department of Law Supreme Court of Cyprus Registrar s Office Cyprus Legal Information Institute (CyLaw) Cyprus Bar Association Our proposal has been approved and we expect to sign the agreement next month (and launch the project on November) CyECLI is co-funded by the EU

CyECLI: Objectives Adoption of ECLI standards and accompanying metadata (case summary; key words) for Cyprus. Research will lead to optimal full national ECLI implementation in a jurisdiction with strong common-law characteristics. CyECLI will achieve correct and unequivocal citation of case law and interconnection of the upgraded Cyprus repository with the other EU MS. Project s duration: 24 months. CyECLI is co-funded by the EU

CyECLI: Activities RESEARCH identifying the citation/documentation challenges/prospects specific to Cyprus judicial/legal practice and collecting / processing the best practices at EU and other Member State level regarding ECLI and accompanying metadata. IMPLEMENTATION of project objectives in the light of RESEARCH. The Supreme Court (national ECLI coordinator) will adopt Cyprus ECLI standards and accompanying metadata. A Web Application assigning ECLI to all new judgments will be developed. COMMUNICATION & DISSEMINATION to maximize/optimize the use and achieve the smooth transition of judicial-legal practice to the new standards. CyECLI is co-funded by the EU

CyECLI: Target Audience - Judiciary, legal profession, civil servants Academic community Business community Users of the e-justice portal general public Cyprus; EU-wide; worldwide CyECLI is co-funded by the EU

CyECLI: Expected Results national ECLI implementation Improved case law search ECLI used in Cyprus-related judgments, legal and academic writing (Cyprus / abroad) Future-proof ECLI standards compatible with all future upgrades, modifications or institutional changes Rule of law reinforcement Mutual understanding between EU MS legal cultures Improved business regulatory context identification CyECLI is co-funded by the EU

14 2 3-5 outside the Regulation s scope of application. It declined jurisdiction by invoking the forum non conveniens doctrine.6 In an action filed prior to Cyprus accession to the EU and the Regulation s coming . into force in Cyprus, the Supreme Court held that the Regulation was to apply to the enforcement of an English judgment which became final in 2006.7 Imilleniu ii. Matters Related to Jurisdiction a. Jurisdiction Over Contract Claims Most Brussels I cases concern contractual disputes, primarily regarding commercial , . transactions. Many Cyprus-related international contracts include jurisdiction clauses and the 3- strong forum policy in favour of jurisdictional agreements is confirmed by the courts in the application of Brussels I.8 4 5 , . . . & . . . . Some of these cases involve jurisdiction disputes under Article 5(1) of Brussels I. The . 7.4.2015 Supreme Court has endorsed the principle that the place of the principal obligation has jurisdiction under Article 5(1).9 Forum jurisdiction was consequently upheld over a dispute involving a distribution agreement with effect in Cyprus.10 However, in November 2013, the 4.3.2016, . Nicosia District Court asserted jurisdiction over a contractual dispute where Ireland, the . . & . . . . domicile of the defendant, was the place of the goods delivery, on the ground that the obligation to be performed in the actual case concerned the payment, in Cyprus, of the remainder.11 In December 2013, another Supreme Court panel addressed a very similar case . and held that Article 5(1)(b) has pre-empted that jurisdictional rule and therefore the Cyprus courts had no jurisdiction over another Irish defendant.12 In May 2014, a senior Supreme Court Justice declined to issue a writ of prohibition in the first case.13 ; ; 6Potavina v Potavin (Limassol DCt 27.10.2014). . 3009/14 . . 7Ironhold Estates Ltd v Travelworld Vacation Ltd [2010] 1 CLR 452. Maxim Moskalev v. 1. Lotaso Business Consultants Ltd . . 8 See eg Hampton Advisory Group SA v Bost AD [2012] 1 CLR 549; Digimed Communications Ltd v Nera ASA [2010] 1 CLR 625. . 30.1.15. 9 See eg Hampton Advisory Group SA v Bost AD [2012] 1 CLR 549. 10Friesland Hellas AEBE v Clappas Trading House Ltd [2011] 1 CLR 1200. 11G Kallis (Manufacturers) Ltd v Dunnes Stores (Nicosia DCt, 25.10.2013). Maxim Moskalev( ) 12Loughrans Stores Ltd v DP Agroproducts Ltd, SCt, 23.12.2013. 13Re Dunnes Stores (SCt, Civ pet, 29.5.2014).

ECLI options ECLI ECLI ECLI ECLI ECLI ECLI ECLI EU NL NL NL DE C HR RBAMS RBAMS BVergG 2016 2017 2017 2012 2015 EU 46 23 345 AB1234 rk20150121.2bvr185613 Netherlands FR Germany

(1) . . . . ., . 334/2011 396/2011, 10/1/2017 ECLI : ECLI:CY:AD:2017: 1 ECLI: v ECLI:CY:AD:2017: 1 v ECLI:CY:AD:2017:1 v ECLI:CY:AD:2017:1 ( ) ( Reports: [2017] 1 1)

(2) . 25.5.2016 , .154/16, 10/1/2017 ECLI : ECLI:CY:AD:2017:D1 ECLI: Re ECLI:CY:AD:2017:D1 ECLI:CY:AD:2017:D1 Re ECLI:CY:AD:2017:2 Re ECLI:CY:AD:2017:2 ( ) ( Reports: [2017] 1 11)

Court abreviations o LEGACY AD DOD DD ED KD OD DEE DED SD DDDP ASD

District abbreviations LEF AMM LAR LEM KER PAF - LEFK - - LEMP LAMM

Conclusion Legal information is power With (great) power comes equally great) responsibility Legal Information is reshaped in the digital age Opportunities for the lawyer (and public) Challenges to legal information but also the practice and even the very nature of law A long view is needed The roles of academia as a mediator, facilitator of in-depth discussion and guardian of values