YSEC Volume III (2022)
Funding of justice: Access to effective justice in times of marketisation of justice and shrinking public budgets
Funding of justice has significant consequences for the enforcement of rights and impacts directly on access to justice and the right to a fair trial as constitutional rights. For example, if a potential litigant does not have the financial means to bring or defend a claim in court, because the litigant is not eligible for legal aid or cannot use private forms of litigation funding, that litigant is deprived of access to justice. Access to justice in turn essentially impacts on the effective enjoyment of any other constitutional right, since having the actual means to access a court in case of a potential breach strengthens that right.
As public funding is in decline and as market liberalization in the field of justice increases, crucial questions related to the rule of law, access to justice and social and economic development, in the intersection between states, citizens and business are raised. For example, potential questions of conflict of interest and how to ensure independence of the adjudicator, or how to ensure a basic level of equality of access to funding for weaker parties such as consumers, whilst at the same time protecting market freedom and the right to business.
Furthermore, the funding of justice is not an exclusively domestic issue but has increasing importance also for the supranational and international level of markets, actors and regulators. At the EU level this has been evidenced recently by the rules on third-party litigation funding in Directive 2020/1828/EU on representative actions for the protection of the collective interests and the broader study of the European Parliament “Responsible private funding of litigation: European added value assessment” published in 2021.
Funding of justice - the specific theme for this volume - concerns the socio-economic constitutional challenges associated with three broad perspectives on funding: “venue funding”, “party funding” and “law funding”. Funding of the venues of justice concerns funding of a multitude of bodies such as court systems, alternative dispute resolution bodies, or international dispute resolution fora. Funding of the parties to a dispute relates to both legal aid and other public schemes as well as funding products available on private markets, such as litigation insurance, third-party litigation finance and crowd-funding, as well as different forms of assigning or selling claims. Funding of law revolves around intellectual property, availability, and accessibility of laws, court decisions, legal sources, and other law-related data.
Public funding of venues and parties has come under pressure due to the reality of financial austerity measures and the tightening public budgets in many countries across the globe. This has contributed to privatization and marketisation of funding for venues and parties in ever more jurisdictions. Funding of law-related data has also evolved in the private sector entailing that access to such data for the public and even public institutions is now in some jurisdictions in the control of private actors. This redistribution of funding from public to private actors can be beneficial if it increases access but it also elicits new perspectives on constitutional rights; both traditional rights such as access to justice and more nascent rights such as access to legal data.
Eva Storskrubb (2022)
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This paper presents a close reading of the European Parliamentary Research Service’s (EPRS), report ‘Responsible private funding of litigation’, which was prepared to assist the Members of the European Parliament with an objective and authoritative analysis of litigation funding and its effects in order to consider implementing policies on a yet unregulated market. The report raises significant concerns with respect to, inter alia, the alleged lack of a clear and comprehensive taxonomy for the litigation funding practice, as well as the perceived risk for frivolous claims and conflicts of interest whereby funders allegedly corrupt justice by influencing funded parties in settlement situations. However, through careful analysis of the report, it is shown in this paper that several critical conclusions on the purported drawbacks of litigation funding set forth in the report are not founded in the research presented in the report itself but rather contradict its actual findings.
Like many other countries, in the last years Belgium has seen a rise in environmental and climate litigation. At first sight, one could argue that this proves that claimants in environmental and climate cases manage to find their way to court. Following some legislative amendments, the legal standing of litigants acting in the collective interest in Belgium seems to have improved. However, this constitutes only one part of the story, and a closer look at some high-profile environmental and climate cases in Belgium suggests that litigants acting in the collective interest often rely on crowdfunding or other forms of private funding to be able to pay the fees. This chapter investigates whether the legal framework currently in force in Belgium ensures a satisfactory level of equality when it comes to access to funding for parties acting for the protection of the environment. To establish what a “satisfactory” level of access to justice could be, we rely on the multi-layered understanding of this right as established by the relevant supranational and international legislation and case-law, as well as by the Belgian Constitution as interpreted by the Belgian constitutional court. Through a small selection of cases from Wallonia, Brussels and Flanders and semi-structured interviews with claimants acting for the protection of the environment, we offer an overview of the funding instruments and modalities used in practice to bring environmental protection cases before Belgian courts. Our contribution is meant as an exploratory study into the topic of funding for these types of cases. In doing so, we point out how the legal framework on legal aid (public funding) currently in place in Belgium proves unable to guarantee access to justice in environmental matters, resulting in litigants looking for other, often private, sources.
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Gianni Ghinelli (2022)
One of the greatest challenges facing courts throughout the world is undoubtedly the growing number of litigants in person; when confronted with the complexity of modern-day legal proceeding, unrepresented litigants are (in)famous for creating havoc. This problem can, however, be viewed from two different perspectives: Some commentators perceive individuals’ insufficient litigation skills as the key problem, to be solved by compelling litigants to rely on qualified counsel. Others argue that the level of complexity inherent in court litigation is the real problem, to be solved by simplifying the procedure. Unfortunately, both of these “solutions” create their own problems.
If a procedural system presumes that individuals are represented by counsel, then counsel fees must be alleviated to ensure that anyone can have “access to a lawyer” (and thereby “effective access to court”). Relieving parties of their lawyers’ fees will, however, only shift costs from one subject to another. Ultimately, someone must pay. This explains why legislators have instead tried to “simplify the procedure” (thereby reducing the “need for counsel”). However, if individuals are to proceed without counsel, then the court must usually “help” the unrepresented party to conduct his/her case. This is not uncontroversial since it may contradict basic principles of procedural law, by blurring the line between the parties and the court.
In this chapter, the Swedish administrative procedure is used as an example to discuss the problems outlined above: Is simplification of procedure a realistic alternative to lawyer-conducted litigation? Drawing on empirical data regarding litigation outcomes for pro se litigants, this question is answered in the negative.
The chapter discusses possible interactions between free speech and antitrust. Antitrust law is typically associated with economic phenomena and competitive market conditions. However, claims have been made during the ongoing debate over the role of Big Tech that antitrust enforcement should also be concerned with the exercise of free speech. The chapter shows that while such claims can be seen as controversial, they are not fundamentally ill-conceived, as antitrust law used to interact with free speech and used to be more focused on safeguarding political values, not merely efficiency. Since the free speech narrative is more present in the United States, the chapter covers the US perspective, but it ultimately aims at making a link between free speech and EU competition law, drawing a framework of possible interactions. The main conclusion of the chapter is that while more interaction between free speech and antitrust had been seen in the past in the United States, EU competition law can be in fact more flexible when it comes to accommodating the interests of free speech.
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CAO Zhixun (2022)
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Manfredi Marciante (2022)
This paper will examine the way that the constitutional protection of decent living emerged in the Greek legal order, initially through constitutional interpretation and after through constitutionalization in the recent constitutional amendment, all against a backdrop of severe budgetary deficits and strict financial obligations. The paper will first provide the context and background on state social policy up to the beginnings of the financial debt crisis in 2011. Thereafter, the discussion will turn to the crisis period itself and the fiscal EMU rules, and in particular the Golden Rule which obliged the adoption of austerity measures that adversely impacted social rights. Compliance with the Golden Rule found a counterbalance in the decent living principle as far the protection of social rights was concerned. The broad scope and means of implementing the decent living principle rendered as a Golden Principle in the face of the austerity measures adopted for financial reasons and placed a severe burden on social rights. Through the interpretive construction of the principle of fiscal sustainability, the courts found the way to implement the content of the Golden Rule which is not constitutionalized in the Greek legal order. Rather, eventually it was the Golden Principle that found its way to constitutionalization after 10 years of systematic implementation by the national courts under the judicial review of the constitutionality of the austerity measures. Finally, this paper will endeavour to show how the Golden Rule and Golden Principle—the former through constitutional interpretation, the latter through constitutionalization—established post-crisis a balance between the dual needs of establishing a robust state budget while maintaining strong social protection and social justice.
Styliani Christoforidou (2022)