the beauty bias: the injustice of appearance in life and law – by deborah l. rhode

Book reviewslest_199 326..339

The Beauty Bias: The Injustice of Appearance in Life and Law, by deborah l. rhode.New York: Oxford University Press, 2010, xvi + 161 + (notes + index) 88pp (£ 15.99hardback). ISBN 978-0-19-537287-8.

On a scale of one to ten, how beautiful are you? Unless you have answered five thisbook could be extremely relevant to you. In it Harvard Law Professor Deborah Rhodeargues fiercely against disadvantages caused by discrimination on the grounds ofappearance. If the concept of appearance discrimination takes hold, this book will beseen as having played an important part in its conception.

The book is extremely well written. There are plenty of everyday examples ofappearance discrimination and the book is written with a passion and enthusiasm thatsweeps the reader along. I enjoyed playing ‘guess the next paragraph’, with somesuccess. When discussing the error of judging by appearance I correctly guessed thatSusan Boyle was over the page; and when healthy eating in schools was raised, JamieOliver, soon made an appearance.

The theme of the book is important. Indeed it is surprising that relatively little hasbeen written on appearance discrimination by lawyers, given the wealth of writing onthe topic by feminist commentators from other disciplines. Perhaps the answer lies inRhodes’s claim of a consensus that ‘college and university faculty are the worsedressed professionals by a considerable margin’.1

This is an allegation I am sure that many readers of Legal Studies would soon beable to disprove. Or maybe not! Academics have more important things to think aboutthan what people look like. Well, we like to think people think we do.

At the heart of the book is a claim to the unfairness of appearance discrimination:‘Conventional wisdom underestimates the advantages that attractiveness confers, thecosts of its pursuit, and the injustices that result.’2 If any one were to doubt this, Rhodesoon challenges their assumptions. Consider these examples cited by her: over half ofyoung women in one survey are reported to have said it would be better to be hit bya truck than to be fat;3 two thirds of women would rather be mean or stupid than fat;4

the world’s most common form of survey is liposuction;5 and the highest paid memberof Sarah Palin’s vice presidential campaign was her make-up ‘artist’.6 And thoseexamples are all within the first ten pages of the book. Plenty more follow.

The book is replete with statistics dealing with the unfair treatment of people onaccount of appearance: less attractive children receive less attention at school; unat-tractive individuals receive less favourable treatment in sentences in criminal law andlower damages in civil proceedings; and find it harder to get a partner. Perhaps more athome, we are told that good looking lecturers get a better course evaluation fromstudents and good looking students get higher ratings on intelligence from teachers.7

1. The Beauty Bias, at xiv.2. Ibid, p 2.3. Ibid, p 6.4. Ibid.5. Ibid, p 7.6. Ibid, p 9. Sarah Palin’s make-up pops up several times in the book: pp 9, 62 and 97.7. Ibid, p 27.

Legal Studies, Vol. 31 No. 2, June 2011, pp. 326–339DOI: 10.1111/j.1748-121X.2011.00199.x

© 2011 The Authors. Legal Studies © 2011 The Society of Legal Scholars. Published by Blackwell Publishing, 9600Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA

And the pressure to adopt a particular appearance is hard to escape. Even in somechurches, the author reports, overweight people are encouraged to pray ‘more of Jesus,less of me’.8 As she correctly points out throughout the book, the pressures ofappearance fall particularly on women. While there are, she acknowledges, somepressures on men in relation to appearance, these are far less prevalent and less strongthan those on women.

One of Deborah Rhode’s targets is the beauty industry. She states that $115 billionper year is spent on grooming. She argues that many beauty products have no or onlyminimal effect. One of the themes in her book is that: ‘The law should more effec-tively regulate product safety and misleading claims, and should also prohibit appear-ance discrimination and sexualized grooming codes.’9 But she is not arguing thatcosmetic surgery or products should be unlawful. If a woman wishes to wear themshould be allowed to. She argues that ‘Whatever their views about makeup and “sexy”apparel, women can agree that the choice should be theirs, not their employers, unlessit is demonstrably related to job performance’.10

It is, however, her argument in favour of law which prohibits beauty discrimination,which is the most original contribution of the book. Professor Rhode set out threeprimary arguments against beauty discrimination. The first she describes as the prin-ciple of ‘equal opportunity’: that ever individual should be judged on merit andperformance, rather than irrelevant characteristics such as appearance. Second sheargues that appearance bias reinforces disadvantages based on gender, race, ethnicity,class, age and sexual orientation. Third, appearance discrimination restricts self-expression and cultural identity. One thing which is notable about these arguments isthat they rest on other forms of discrimination. This might imply that beauty discrimi-nation is a particular manifestation of sex or race discrimination, rather than being initself a unique form of discrimination. The book does not really delve into that question.

It was a surprise to this English reviewer to discover that one state and six cities orcounties in the US outlaw appearance discrimination.11 Victoria in Australia isreported to be the only other jurisdiction where appearance bias is banned. Chapter 6of the book examines the operation of the law in those states where there is appearancediscrimination. The author notes that in those places which do have appearancediscrimination legalisation, it is rarely used. In Santa Cruz, where there is an ordi-nance against appearance discrimination there has not been a single recorded com-plaint.12 The District of Columbia had 11 complaints in the 25 years they havehad legislation. Rhode notes a case where a janitorial service required a maleemployee to cut off his pony tail as it had a ‘neat hair’ policy.13 It is surprising that thelegislation has been used so little. Professor Rhode suggests that the limited remediesmay be an explanation, as may high lawyers’ fees.14 Another explanation is theexception in the legislation for ‘requirements of cleanliness, uniforms, or prescribedstandards, when uniformly applied . . . for a reasonable purpose’.15 The lack of use of

8. Ibid, p 55.9. Ibid, p 89.10. Ibid.11. Try Madison, Wisconsin, for example, as a place where appearance discrimination isoutlawed.12. Ibid, p 127.13. Presumably ‘neat’ in the sense of tidy; than of being cool.14. Ibid.15. Ibid, p 128.

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© 2011 The AuthorsLegal Studies © 2011 The Society of Legal Scholars

the legislation appears to present a major difficulty for the book’s argument. If theappearance discrimination is little used, then will increasing its extent do any good?

As an example where legislation has been used effectively Deborah Rhode refersto a ‘leading’ case on appearance discrimination, Atlantic Richfield Co v DC Com-mission on Human Rights16 where a supervisor complained that the complainant worelow-cut blouses and dishevelled hair. In upholding her complaint the court found thather appearance was similar to that of her co-workers, against whom complaints werenot made by the supervisor. But this highlights a difficulty for appearance discrimi-nation, which the book does not get to the heart of and that is the issue of thecomparator to be used. A complainant will need to find another worker of a similarappearance. While in the case of very specific forms of appearance discrimination thismay be possible, for example, where there is discriminatory treatment based on lengthof hair or requiring the wearing of a particular uniform, if the claim is generally thata person was treated less well because they were less attractive, it will be difficult, andperhaps undesirable, for a court to assess which other workers for the employer wereor were not of a similar level of attractiveness to the claimant. Indeed that may be whyso few claims are brought.

The author calls for a general prohibition on discrimination based on appearance,covering areas including employment, housing and public accommodation. Sheargues that appearance should include physical characteristics and dress. However sheallows for an exception based on ‘reasonable business needs’.17 She accepts that somebeauty discrimination cases could rely on a claim of sex discrimination. For example,a requirement that female employees wear make-up or high heels is readily seen as aform of sex discrimination. Hopefully in future work the question of whether appear-ance discrimination is better presented as a form of sex discrimination can be studiedin greater depth.

The author’s proposals concerning healthy eating seem rather weak to Europeanears. She seeks to ‘create an environment that encourages sensible eating and fitnessbehaviours without demonizing those who fall short’. Schools should provide‘adequate health information’ and ‘restrict the availability of foods high in sugar, salt,and fat’.18 Clearly at this point the author is torn between her desire to promote healthyeating, with her desire not to penalise those who are obese. Even so, the fact that callsfor schools only to ‘restrict’ the availability of high–sugar, salt or fat foods, rather thanseek to ban them, is surprising. At least more argument is needed as to why restrictionmay be a better policy than prohibition. Indeed, the role of the government inpromoting healthy-lifestyles requires a much deeper analysis. It may well be that in acountry with a National Health Service, such as England, the justifications for takinga stronger line on the promotion of health eating is easier, than in a more privatizedsystem such as the United States.

Towards the end of the book, Professor Rhode set out what she sees as her threeprinciple objectives for reform. The first is ‘to promote more attainable, healthy, andinclusive ideals of attractiveness’. The second is ‘to reduce discrimination and stigmabased on appearance’. The third is ‘to encourage lifestyles that place more emphasison health, rather than simply appearance, and to create a social environment thatsupports them’.19 She is quick to point out that the role for the law is limited here.

16. 515 A 2d 1095 (DC 1986).17. The Beauty Bias, p 154.18. Ibid, p 155.19. Ibid, p 147.

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Some of these objectives are primarily to be obtained through education. She calls forlegislation to combat appearance bias and to demand reasonable justification for‘grooming rules’ (employer’s rules setting out what an employee may or may notwear, or about their appearance). She also sees law as having a role in ensuringprotection for consumers from unsafe cosmetic products and products which makefraudulent claims for themselves. She finally sees a role in the law in promoting healthlifestyles and media images. As to the latter she sees a ‘promising’ example of the‘American Girl’ line of dolls which are more fairly proportioned than ‘other dolls’.20

Although at around $100 for an American Girl doll, it is questionable whether this isa line of products to be promoted by the liberal minded academic.

It is not quite clear who is the intended audience for this book. For the academic,the book lacks the kinds of sophisticated analysis of the concepts of discriminationthat one would expect in a monologue. The citations of newspaper articles are asfrequent as they are of academic articles. For the general reader this is rather more lawthan would suit most palates. Given the author and the publisher, I was expecting aninsightful analysis of the difficulties of comparators in appearance discrimination law;discussions of the nature of equality in terms of appearance; and disputes over whenappearance discrimination may be justified. These issues are discussed in the book,but at a fairly general level. This book is more a call to arms. It highlights the manyways in which people can be disadvantaged on account of their appearance anddemands a legal response. This is one of the first books to consider how the law mayrespond to beauty bias. No doubt it will create a considerable body of literature andmuch debate. The only major complaint is its rather unattractive cover jacket.

jonathan herring21

Proprietary Rights and Insolvency by richard calnan.Oxford: Oxford University Press, 2010, xxxvii + 422 + (index) 14pp (£135 hardback).ISBN: 978-0-19-922858-4.

The purpose of this book is, in its broadest description, ‘to explore the circumstancesin which one person is entitled to a proprietary interest in an asset which is in thehands of another person.’22 It is, thus, not a book mainly about insolvency law. Thatarea of the law is, nevertheless, where the distinction between proprietary rights andmere obligations will be most keenly felt: ‘the existence of a proprietary claim maymake the difference between payment and non-payment.’23 In the book’s five parts,further divided into nine chapters, Calnan develops nothing less than a panorama ofEnglish property law sub specie insolventiae, covering land, goods, and intangibles,both at law and in equity. This is a Herculean task. The author manages it – andmanages it admirably – through concentration and through organisation. He omitseverything that is not strictly necessary to understand the creation and the implicationof property rights from the perspective of the creditors’ competition for their insolventdebtor’s assets. As a consequence, the book will be of most use to readers who alreadyhave some understanding of both property law and insolvency law. These readers willbe shown connections that are not normally drawn out, at least not with such clarity

20. Ibid, p 151.21. Exeter College, University of Oxford.22. Proprietary Rights and Insolvency, at xxi.23. Ibid.

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and stringency, in the existing textbooks and monographs on either subject. The bookis structured in a way that breaks down the vast material into manageable portions, andtakes the reader systematically through a body of case law that is often anything butsystematic and conceptually reflected.

The first chapter of the first part of the book highlights the importance to insolvencylaw of the principle of pari passu sharing of an insolvent debtor’s assets among thecreditors. In principle, therefore, a creditor’s rights in an insolvency cannot beincreased by contract; so held the House of Lords in British Eagle InternationalAirlines v Compagnie Nationale Air France.24 Nevertheless, based on more recentjudgments Calnan argues convincingly that it is possible to create ‘flawed assets’ thatare granted to the debtor with the express stipulation that they will be removed on hisinsolvency: in these circumstances, the debtor only ever has a limited proprietaryinterest in such assets.25 The relevance of proprietary claims in the context of insol-vency is that a person with a proprietary interest is not affected by pari passu sharing(at least not with those creditors who have only claims in contract, tort, or restitution,that is, personal rights): it is the debtor’s assets which are used for distribution amonghis creditors, not the assets of other persons.26 The most important limitations onproprietary claims in insolvency are the provisions of the Insolvency Act 1986 whichallow for the setting aside of certain transactions in the run up to the commencementof insolvency proceedings.27 To conclude this chapter, the author discusses two criti-cisms of the pari passu principle, namely that it does not reflect reality and that theadvantages it affords holders of proprietary claims are outdated. His answer to the firstis that the true problem is the ease with which property rights can be created,particularly in equity. He replies to the second that over other suggested distinctions,pari passu has the advantage of unrivalled simplicity.28

The second chapter explores the nature of proprietary interests (or, synonymously,proprietary rights): they are generally available against everybody, not just againstpersons who are specified from the outset, such as the other party to a contract, atortfeasor, or a husband. One exception applies, however, with regard to equitableinterests: these can be overcome by a purchaser of the legal title to the asset for valueand without notice of the equitable interest.29 This apart, the distinction remains validdespite several attempts at various times, notably by Lord Denning in his creation ofthe ‘deserted wife’s equity’, to imbue contractual relationships with proprietaryeffects.30 This chapter also introduces and explains lucidly the distinctions betweenvarious types of proprietary interests, most prominently legal and equitable interests,outright and security interests, and interests created by agreement or by operation oflaw.31 To conclude the chapter, Calnan discusses the availability and implications oflegal and equitable remedies, that is, an action in conversion,32 and specific recovery,respectively.33

24. [1975] 1 WLR 758.25. Proprietary Rights and Insolvency, summary at [1.39].26. Ibid, at [1.61 and 1.62].27. Ibid, at [1.119] ff.28. Ibid, at [1.146] ff.29. Ibid, at [2.03]–[2.12].30. Ibid, at [2.15]–[2.56].31. Ibid, at [2.61]–[2.98].32. Ibid, at [2.01]–[2.129].33. Ibid, at [2.130]–[2.146].



Following this introductory part, Part 2 of the book looks at ‘retaining or recoveringa proprietary interest’. Chapter 3 considers how this is done by agreement. Borrowingfrom the law of trusts, Calnan argues that the creation of any proprietary interest,whether at common law or in equity, whether outright or by way of security, requiresthe ‘three certainties’ of intention (ideally laid down in a written agreement, otherwiseto be established objectively), subject matter (the assets to which title is retained), andobjects (which rights are retained, which are transferred).34 This makes sense and aidsthe understanding later on in the book. Equally uncontentious is the further distinctionbetween retention and creation of an interest. This is important because in the contextof security interests, retention does not require registration while creation will often doso.35 As it turns out, legal title to goods can be retained by the owner. By contrast,beneficial title cannot, but needs to be re-conveyed to him by the transferee of the fulllegal and equitable title. Calnan is right to point out that this is of little practicalimportance;36 it remains an oddity nonetheless. The rest of this chapter is dedicated tothe question how interests are lost. This occurs when someone else obtains a better or,for instance as a purchaser of goods under one of the exceptions from the nemo datprinciple, the best (legal) title.37 It also occurs in the case of fixtures, mixtures, andmanufactures,38 all of which Calnan explains with exemplary clarity.

Chapter 4 of the same part describes how proprietary interests are retained orrecovered by operation of law. More specifically, it analyses what replaces the inten-tion that was identified above as a requirement of consensual retention. Here, not forthe first time but from then on regularly in the various contexts, Calnan frankly admitsthat ‘[t]he only statement which can be made with any degree of certainty is that thelaw in this area is uncertain.’39 Throughout the book, he treats the case law with therespect that is essential in a common law system. He is not shy, however, to articulateprincipled criticism, and always offers constructive alternatives. Among what followsin this chapter, Calnan’s exposition of the legal dimension of ‘Payments of money’40

is particularly commendable. What he says here is not new (and he does not claim itto be), but has rarely been explained in such an accessible manner. Very useful andalso eminently readable are the ‘Principles’41 which Calnan distils from this chapter.His concern for the integrity of insolvency law, in particular the pari passu principle,is in evidence again when he contends that ‘[i]t is not a self-evident truth that a personwho transfers an asset to another by mistake should be in a better position than anothercreditor of the transferee.’42 It is indeed not, and other legal systems only grant suchcreditors the quota that the distribution pari passu of the creditor’s assets yields (see,for instance, the German Insolvency Act 1994, s 47).

Part 3 of the book moves on from the retention or recovery of proprietary intereststo the obtaining of such interests, that is, to their acquisition by a person who did notat some point in the past have a proprietary interest in the asset in question. Theexpress transfer of such an interest (or its creation over an object in which the owner

34. Ibid, at [3.05]–[3.14].35. Ibid, at [3.18].36. Ibid, at [3.38].37. Ibid, at [3.54]–[3.83].38. Ibid, at [3.84]–[3.114].39. Ibid, at [4.09]; see also [4.11]: ‘It is impossible to give a simple answer to any of thesequestions. There are considerable areas of doubt in the case law.’40. Ibid, at [4.15]–[4.37].41. Ibid, at [4.184]–[4.193].42. Ibid, at [4.190], summarising the discussion at [4.137]–[4.167].

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retains an interest), dealt with in ch 5, at common law requires that the asset exists, thatthe transferor (or creator) has a legal proprietary interest in it, and that the asset is ofa type that the common law recognises as property.43 This is straightforward withregard to goods and land. Intangibles, on the other hand, certainly struggled to berecognised as ‘proper’ assets by the common law, ‘pure’ (as opposed to ‘documen-tary’) intangibles in particular. All the same, it remains puzzling why the author doesnot mention the Law of Property Act 1925, s 136 in this context,44 which governs thelegal assignment of ‘any debt or other legal thing in action’. The discussion of landand goods refers to the applicable statute law throughout the text; this seems to be theonly exception. Again, highly recommended is Calnan’s lucid discussion of thecreation or transfer of interests in part of an asset only.45

Chapter 6 focuses on obtaining a proprietary interest by implied or presumedagreement. Calnan here analyses five (‘commercial’) paradigms. The first is the saleof another person’s asset. As a rule of thumb it emerges here that legal title to theproceeds will normally, in accordance with the intention of the third person whoacquires the asset, vest in the vendor. As between the vendor and the owner, however,the rebuttable presumption will be that beneficial title in the proceeds will be with theowner.46 Worth highlighting in this chapter is Calnan’s treatment of the case law onreservation of title beginning with Romalpa.47 This is again well-trodden territory, butCalnan’s discussion of the issues will be stimulating even to those who are alreadyfamiliar with the topic. The third paradigm consists of money paid to discharge aparticular liability. This gives rise to a lucid discussion of the ‘Quistclose-trust’.48

Those who are puzzled by the multitude of interpretations of this case in the literaturecan get some firm ground under their feet by reading Calnan’s take on the subject.Here as throughout the book, however, Calnan does not engage with academicopinion, but exclusively with the case law of England, Australia, Canada, and NewZealand. As at the end of the preceding part, Calnan condenses the results found in thediscussion of the five paradigms into a series of principles. These are useful for‘revision’ purposes, but a reader pressed for time can also benefit from reading themon their own. The five commercial paradigms are followed by an analysis of theproprietary issues surrounding family homes. This will be of interest even to thosewithout any leanings towards family law: the focus is firmly proprietary.

The two chapters in Part 4 of the book are dedicated to tracing at law and in equity,respectively. This division of the part is programmatic. Calnan strongly believes thatthe two branches of tracing should continue their separate existence.49 He does soagainst prominent advocates to the contrary. Among these, he identifies no lesserfigures than Lords Steyn and Millett. Here again, judicial pronouncements are all thatthe author engages with; the academic literature on the subject is bypassed entirely.Nevertheless, within the confines of Calnan’s agenda for the book, this is even moreunderstandable regarding the present part: with trying to bring some rational orderinto the case law alone, every author has more than enough on his plate.

Few readers of this review will need reminding that the distinction between law andequity has its roots in certain rigidities of the mediaeval common law. Beyond this

43. Ibid, at [5.18].44. The opportunity presented itself at [5.24] and [5.37], and again at [7.64].45. Ibid, at [5.114]–[5.166].46. Ibid, at [6.12]–[6.61].47. Ibid, at [6.36]–[6.60].48. Ibid, at [6.71]–[6.101].49. See, for the first time, Ibid, at [7.09], and subsequently.



historic coincidence, however, there is nothing inevitable or logically cogent about thedivision. Indeed, all other developed legal systems (that is, those outside England andher former colonies) manage without it, if not without similar (albeit integrated)mechanisms for tempering iniquities that strict application of the existing rules mightentail in individual cases. This is not to deny that the two branches of English law andtheir relationship with each other have their own internal logic, not to mention acertain quaint charm. What is more, the separate administration of the two branches indistinct courts of common law and of equity was abolished by the Victorian reformsof 1873/1875, although the separation of the substantive law remained.

What, then, are Calnan’s arguments for maintaining the divide? One is that ‘theway in which the common law and equity approach the creation of proprietaryinterests is very different. Because tracing is about creating proprietary rights oversubstitute assets, it must follow that the position at law and in equity is different.’50

This, however, is convincing only on the additional assumption that the separation isgiven and immutable, and must inform the legal solution to every individual issue –but this is what had to be proven. This argument appears, therefore, to be circular. Infact, Calnan strains to identify a conceptual basis for tracing at law. Instead he findsthat the locus classicus in this respect, Taylor v Plumer,51 although decided by theCourt of King’s Bench, was actually concerned with tracing in equity.52 Similarly, inhis summary to ch 7, Calnan admits that ‘the paucity of authority means that it isdifficult to establish the precise limits of the doctrine’ of tracing in equity.53

Another argument for maintaining the distinction between tracing at law and inequity is that ‘[t]he ability to choose between the creation of a formal legal interest anda less formal equitable interest is a cornerstone of English commercial (particularlyfinancial) law, and our law would be much the poorer without it.’54 Nevertheless, theinformal equitable way developed originally because of the perceived excessive for-mality of the legal (common law) way of creating proprietary interests. English lawwould not necessarily be ‘poorer’ with a unified and principled approach. If the needwere felt to avoid undue hardship, this approach could be complemented by mitigatingdevices. In that case, English law would simply be different. If this meant that it lostsome of its homely familiarity, it might also be seen as English law’s becomingsomehow less English – a charge that has sunk many a less fundamental reformproposal. That aside, Calnan’s analysis of the case law, and his deriving from it fiveprinciples of identifying the substitute asset into which an owner can trace his claim55

are most instructive and superbly clear. The insolvency perspective is always present,and with it Calnan’s concern to limit, or at least clearly to identify the limits of, anyproprietary inroads into the principle of pari passu sharing.

Much the same can be said of the long (and last) ch 9, the only one in Part 5 on‘obtaining a proprietary interest in an unconnected asset by operation of law’. In it,Calnan shines a light on such diverse topics as breach of fiduciary duty, proprietaryestoppel, remedial constructive trusts, and legal and equitable security interests. Hereas throughout the book, the reader will find an astute selection of the main cases,succinctly discussed and fitted into a conceptual framework that supports a number of

50. Ibid, at [7.20].51. (1815) 3 M&S 562; 105 ER 721.52. Proprietary Rights and Insolvency, at [7.69]–[7.82].53. Ibid, at [7.146].54. Ibid, at [8.15].55. Ibid, at [8.92]–[8.185].

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clearly articulated principles. In this way, Calnan brings rationality and system to notone but several bodies of law that have partly of necessity, partly of neglect, grownhaphazardly over the centuries. The book is most stimulating for all who have grownup with English property law. It lets many seemingly familiar classics appear in a newlight. I hazard to predict, however, that it will be no less successful as a vade mecumfor comparatists worldwide: it is the ideal companion through the maze of the Englishcase law on proprietary rights, and it ultimately guides the reader to the rationalprinciples underlying it all – principles which, it turns out time and again, are not farremoved from those that permeate other legal systems.

stefan enchelmaier56

Refugees, Asylum Seekers and the Rule of Law: Comparative Perspectives, edited bysusan kneebone.Cambridge, Cambridge University Press, 2009, xiii + 309 + (appendix,bibliography + index) 24pp (£59 hardback). ISBN 978-0-521-88935-3.

‘Everybody believes (or claims to believe) in the rule of law, but how many peoplecould tell you what it means?’57

This wonderful book has taken on the noble task of examining how ‘the Rule ofLaw’ – an expression coined by Professor Dicey in 1885 – is being challenged by itsapplication to refugees and asylum seekers in five countries, namely, Canada, theUSA, Australia, New Zealand and the UK. In doing so, it raises (and answers) anumber of important questions: Should the rule of law be regarded only as a nationalaspiration? How can coherence between the national and the international rule of lawbe achieved? In other words, how can the international regime be best translated intodomestic practice so as to guarantee respect for the rights of refugees and asylumseekers?

This book is therefore concerned with how national refugee policy is developed? Itfocuses on ‘the interconnectedness of the international and the national rule of law’,and the role of national legal systems in the protection of rights for refugees andasylum seekers. It uses Ronald Dworkin’s idea of ‘law as integrity’ as a theoreticalframework for the evaluation of the ‘integrity’ or ‘coherence’ of the legal systems inthe five selected countries. The concept of ‘law as integrity’ is ‘based on the assumedexistence of coherent community goals and policies which are moral and fair; that is,‘integrated’58.

The key argument made in this book is that the international rule of law (particu-larly the ‘right’ to seek asylum and the ‘right’ not to be refouled) is being eroded byimplementation at the national level. In the five countries under study, the conclusionis that the way the rule of law operates at the national level is denying refugees andasylum seekers access to their rights under international law. These countries have incommon their Common Law heritage and ‘dualist’ approach to international law. Thisbook successfully highlights the differences and similarities between each country.One such similarity is the exclusion of refugees and asylum seekers from access to thelegal system through various restrictive measures (eg the ‘safe third country’ concept).Space precludes discussion of all five countries covered in this book. Looking at the

56. York Law School, University of York.57. S Sedley ‘The Rule of Law by Tom Bingham’ The Guardian 20 February 2010.58. Refugees, Asylum Seekers and the Rule of Law: Comparative Perspectives, p 304.



case of the United Kingdom, we can see one important national difference in the UK’srelationship with Europe in the area of asylum.

The UK is a Contracting Party to the European Convention on Human Rights(ECHR) and a Member State of the European Union, as such its engagement withEurope has had a profound effect on its law and policy, and their interpretation. It hasbeen observed that the ECHR (and now also increasingly the EU thanks to itsprovisions on asylum and Fundamental Charter on Human Rights) ‘is fundamentallythere for the protection of minorities because majorities are represented in Parliament,they can make their voices heard’.59 Yet, the UK has been struggling to adopt asylumlaw and policies within the spirit of the rule of law in the context of national security.Hence, the refugee and asylum seeker – as an ‘outsider’ – may not always be betterprotected in the UK. However, there is one example where the influence of theEuropean Court of Human Rights on the UK’s compliance with the rule of law is verymuch noticeable, that is in cases involving national security and the prohibitionagainst torture and other ill-treatments (Art 3 ECHR). The European Court of HumanRights has recently confirmed, loud and clear, its previous case law on the absolutecharacter of Art 3 ECHR prohibition in whatever context, such as the fight againstterrorism.60

O’Sullivan’s chapter on the United Kingdom touches on some of these key issuessuch as the compatibility of parliamentary sovereignty with the rule of law and the riskposed by anti-terror measures to the rule of law. One particularly timely issue is thatrelating to newly adopted EU asylum laws and their effects on the rule of law. Inparticular, she raises the question: What are the implications of these new EU asylumdirectives and regulations for international refugee law and therefore for the rule oflaw? O’Sullivan praises the objective of these new asylum laws, namely to achievegreater consistency in asylum decisions between the EU Member States, but notes therisk-effect that these may have on international refugee law due to inconsistencieswith the latter. There is no doubt that despite its engagement with the EU, the UK willcontinue to be influenced by international refugee law, particularly the case law andpractice of Canada, New Zealand, Australia and the USA, with whom it has long-established reciprocal relations which are conducive to dialogue. What is new,however, is that when interpreting provisions of EU law relating to asylum andrefugees (which overlap considerably with international refugee law), the UK willnow be increasingly looking at the case law and practice of its EU partners, as well asthe case law of the Court of Justice of the European Union and the European Court ofHuman Rights. Hence, in the case of the UK at least, the ‘interconnectedness of theinternational and the national rule of law’ is further complicated by the existence of aEuropean rule of law, itself divided into an EU rule of law and a Strasbourg rule of law.As rightly pointed out in this book, a ‘transnational judicial dialogue’ is a key elementin relation to international refugee law; I would add to that, it is also key in relation toEU refugee law.

This book is a key addition to the literature on the rule of law in refugee protectionfor it enlightens the reader on what five dualist countries governed by the rule of lawlook like. According to this book, they incorporate the Refugee Convention/Protocol

59. Lord Bingham speaking to Joshua Rozenberg in June 2009 about the establishment of theBingham Centre for the Rule of Law at the British Institute of International and Comparative Law.Interview transcript available at http://www.biicl.org/files/4422_bingham_int_transcript.pdf60. Saadi v Italy, European Court of Human Rights, Judgment of the Grand Chamber, 28February 2008, para 138.

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into national laws. They also ‘provide fair and neutral hearings at the administrativelevel, with the judiciary working coherently with the legislature in order to implementthe “integrity” principle’.61

Not everyone may see eye to eye with the value of Dworkin’s conception of ‘lawas integrity’ in the context of international law and the protection of refugees andasylum seekers (and Kneebone herself acknowledges ‘possible limits to Dworkin’stheory’ in this context). However, this book makes a significant contribution (boththeoretically and normatively) to the general debate on compliance with internationalrefugee law. There is not just a need for a national rule of law; as this book clearlyshows there is also clear need for an international rule of law, and a European rule oflaw. Many are tempted to define the rule of law as an ‘all-or-nothing’ concept.However, the reality is that the existence of the rule of law is a matter of degree, withall legal systems being on a spectrum’.62 This book strongly testifies to this statement.From my own view point as a comparative and international lawyer, it would havebeen interesting also if the book had looked at countries with a monist approach tointernational law and, their understanding and approach to the rule of law. This pointaside, this is a thought provoking collection, beautifully produced and highly recom-mended for anyone interested in international refugee law and the role of nationalauthorities in implementing international obligations.

professor hélène lambert63

International Commercial Litigation, by richard fentiman.Oxford: Oxford University Press, 2010, lxiii + 718 + (index) 47pp (£175.00 hard-back). ISBN 978-0-19-926543-5.

This excellent book represents a combination of conflict of laws and civil procedure,with its focus on high-value cross-border commercial disputes. It is the product ofmany years of research in connection with the LLM course on international commer-cial litigation which the author teaches at Cambridge. Its high academic standard canaccordingly be taken as a given.

The book is formally divided into six parts. The first introductory part sets out thebook’s conceptual platform, which differentiates this book from other legal textbookson private international law. Essentially, the law relating to international commerciallitigation is seen to be about risk assessment. It says ‘[t]his book is concerned withidentifying the risks associated with international commercial litigation in the Englishcourts – the risks associated with the conduct of such litigation, and the risk totransactions which it entails’64. It goes on to identify two main categories of risk,namely transaction risk and litigation risk. Transaction risk is the risk that a transac-tion will fail because it cannot be implemented according to its terms, defeating theparties’ expectations, such as where a counterparty has an excuse for non-performanceby reference to a law other than that which the obligee expects to govern.

Litigation is the forum in which transaction risks are prone to materialise. There arefive sub-categories of risk consequent upon a litigation, namely (i) negotiation risk –

61. Lord Bingham, ibid, above n 59.62. Robert McCorquadale ‘The Rule of Law and Migration: Some General Themes’ address,Asilah, Morocco, 21 July 2010.63. School of Law, University of Westminster.64. International Commercial Litigation, p 44.



the risk that a party may have incurred liabilities in the course of negotiation whichmay directly or indirectly erode the effectiveness of the transaction; (ii) formation risk– the risk that a valid contract was not concluded because of want of form or consent;(iii) counterparty risk – the risk that a counterparty lacked the capacity or authority tocontract; (iv) performance risk – the risk that a counterparty can excuse its default;(v) recharacterisation risk – the risk that the legal nature of the transaction will berecharacterised in the course of the litigation so as to deprive it of its intended effect.

Litigation risk in turn primarily concerns venue risk and enforcement risk. Venuerisk arises when a party is required to initiate or defend proceedings in an unfavour-able forum or where proceedings in a favourable forum may be challenged onjurisdictional grounds. Enforcement risk is the risk that a judgment-debtor withworldwide assets will disperse or conceal those assets, and the risk that a judgmentobtained in one court will be unenforceable elsewhere.

It is precisely because the book is framed around risk assessment and managementthat the rest of the book does not follow the conventional topic division in conflict oflaws, such as jurisdiction, recognition and enforcement of judgments and choice oflaw issues in various areas. Instead the book ‘is organized around issues that arise ininternational commercial litigation as the courts and practitioners view them. It is notorganized doctrinally, around discrete obligations or concepts, but around intendedoutcomes.’

Accordingly Part II of the book addresses how the legal risk of litigation might bemanaged by the insertion of express jurisdiction and governing law clauses. Naturally,the circumstances in which jurisdiction and governing law clauses may be heldineffective are discussed at length.

Part III then looks at other aspects of choice of law, including how English lawidentifies the applicable law governing a contract and the transfer of property rights,the legal issues surrounding the assignment of debts, characterization, public policy,renvoi, and the proof of foreign law.

The remaining Parts IV to VI move on to look at the more procedural aspects ofinternational commercial litigation, namely commencing proceedings, preventingproceedings and recovery and enforcement. Part IV deals with the commencement ofproceedings, thus considering the issues of jurisdiction competence and choice offorum under English common law and Council Regulation (EC) no 44/2001 of 22December 2000 on jurisdiction and the recognition and enforcement of judgments incivil and commercial matters (‘Judgments Regulation’).

As regards the prevention of proceedings, Part V covers inter alia the issues ofnon-justiciability, foreign act of state, sovereign immunity, the application of thedoctrine of forum non conveniens, the staying of actions on case managementgrounds, various adjudicatory estoppels, the role of pre-emptive proceedings fornegative declarations, and antisuit injunctions.

The final Part VI examines the law governing the remedies for breach of contrac-tual and non-contractual obligations, mechanisms whereby a claimant in Englishproceedings might ensure the preservation of assets pending judgment (such as world-wide freezing orders, orders for disclosure and the appointment of receivers), and theenforcement of judgment debts.

The book’s treatment of many topics is lucid and thought-provoking; see forinstance the extended treatment of the implications of Owusu v Jackson65, Erich

65. Case C-281/02; [2005] 1 QB 801.

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Gasser v MISAT SRL66 and Allianz SpA v West Tankers Allianz67. However, thisreviewer takes issue with the book’s conceptual platform. ‘[T]his book takes as itsanimating principle the avoidance of legal risk’68. This is because ‘[f]or commercialparties, to initiate or defend proceedings is an investment decision, not a means toright a wrong. This is always so in commercial disputes . . . Any investment decisioninvolves comparing risk and return . . .’69

With great respect, this way of looking at the law seems flawed and risks beingcynical and elitist. The book does not sell itself as an investment guide. It purports toexplain the law. Explaining the law in that slanted manner of risk and return ignoresmany jurisprudential values attached to the law, such as justice, fairness and equality.These values shape the law, even in the context of international commercial litigation.Courts do not mete out justice as if they were a cold, calculating risk-weighing machine.Two examples would drive the point home. First, as the author acknowledges, thedoctrine of forum non conveniens ‘expresses a strong commitment to proceduraljustice’70. Second, because the book takes as its animating principle the avoidance oflegal risk, it forces itself to characterise Art 5 of the Judgments Regulation as a venuerisk71. Why is Art 5 necessarily a venue risk, thus a bad thing? While it may be a risk tosome people in some situations and thus to be mitigated as far as possible, the operationof Art 5 is not premised on it being a risk to people. Moreover, even from a riskperspective, Art 5 can work to reduce the risk of uncertainty because the parties mayspecify the place of contractual performance, thus regulating the venue of litigation.

One also must not forget that what seems to be a risk to one person may be anopportunity to another. Would it not be too cynical and elitist to explain the lawrelating to international commercial litigation exclusively from the perspective ofinvestment opportunity?

While the book mentions risk assessment repeatedly, its exposition of the law infact shows that viewing the law from a risk management perspective is neitherdesirable nor necessary. In many places where the law is unclear, the author rightlyexpresses arguments based on principles (one finds many places where the author’sview is prefaced with the phrase ‘principle suggests that’). It seems that the author isrelying on proper legal principles, not principles of risk management.

Leaving aside the book’s purported risk-management orientation, though the bookcontains many arguments for and against a particular position (an example being theproprietary aspects of assignment in ch 4), it seems slightly unsatisfactory that no firmview is reached after a rendition of many arguments. Even when a view is reached, itis often expressed too tentatively. For example, in the context of interim relief, theauthor’s view is only that ‘it may be necessary to refer to the Court of Justice notmerely questions concerning when, and to what extent, an English court can exerciseits s 25 powers in a case under Art 31, but when it may decline to do so’72. One expectsan academic author, unconstrained by any potential liability for professional negli-gence, to be able to express more confident and firmer views, which would be helpfulto practitioners.

66. Case C-116/02; [2005] QB 1.67. Case C-185/07; [2009] 1 AC 1138.68. International Commercial Litigation, p 43.69. Ibid, p 327.70. Ibid, p 482.71. Ibid, p 384.72. Ibid, p 687.



This reviewer also has a few quibbles about some details in the book. First, it is saidthat ‘[c]haracterisation is (necessarily) undertaken by the forum irrespective of thecontractual law’.73 This is in fact not necessarily the case. If the issue concernswhether an agreement has effected a title transfer or created a security interest, it ishard to imagine that the English court would not refer to the contractual law todetermine the effect of the agreement. Second, the book says ‘[i]n the event of acounterparty’s insolvency in England, English law will apply [to govern recharacter-ization]’74. This seems rather simplistic and has not taken into account cross-borderinsolvency regimes such as Council Regulation (EC) 1346/2000 on Insolvency Pro-ceedings which expressly reserves matters for foreign law. Third, there seem to besome stray references to 11 July 2007 in relation to the Rome II Regulation.75 Fourth,the book should have considered the cross-border insolvency regimes if it is trulyconcerned with transaction risk management.

Be that as it may, in this reviewer’s view, the book is most useful in providing lotsof thought-provoking materials for further research. While one may not agree with thebook’s risk orientation, one cannot doubt that this is a scholarly and practical work oninternational commercial litigation.

look chan ho76

73. Ibid, p 165.74. Ibid, p 168.75. Ibid, pp 622 and 625.76. Attorney-at-Law and Solicitor, Freshfields Bruckhaus Deringer LLP, London.

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the beauty bias: the injustice of appearance in life and law – by deborah l. rhode

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