The Private Law Working Group hosts an event with the EUI researchers Michael Widdowson and Fouad Saleh who will present their ongoing research projects on legal judgements as exercises in authority and co-authorship and the core of the trust in the French legal tradition.
Abstracts:
Michael Widdowson: Are Trusts Transplantable? Unpacking the Irreducible Core of Trusts in the French Legal Tradition
Since the adoption of the Hague Trust Convention in 1985, trust-like devices have steadily risen in many French Legal Traditions (Québec Fiducie 1992, Luxembourg Contrat Fiduciaire 2003, France Fiducie 2007). Since their adoption, many comparative trust scholars have sought to draw comparisons between these trust-like devices in the French Legal Tradition and trusts in the Anglo-American Legal Tradition (Matthews 2007, Braun & Swadling 2012, Gelter and Helleringer 2019, Lupoi 2021, Bouathong 2022, Aynès 2022). It can be argued that these civilian fiduciary devices are either transplanted forms of the Anglo- American Trust (Canivet 2018) or merely a contractual arrangement under the guise of a trust (Matthews 2007, Paliwal 2020). At present, it is unclear whether these fiduciary devices in the French legal tradition are transplanted trusts, contracts or a mixture of both? To answer this question, it is necessary to define trust by identifying its irreducible core elements (Hayton 1996, Armitage v Nurse 1998, Lupoi 2000, Penner 2002, Honoré 2008, Ho 2013). This paper examines whether civilian trust-like devices in the French legal tradition are transplanted from the Common Law by reviewing the trusts' irreducible core elements. The author will engage with the work of Hayton, Millett, Penner, Lupoi, Ho and Honoré to establish a new set of core elements of the trust. The core elements established by the author will be utilised as a framework to develop whether civilian fiduciary devices in the French legal tradition could be seen as transplanted Anglo-American trusts or merely glorified third-party contracts.
Fouad Saleh: Legal judgments as exercises in authority and co-authorship
Originally, litigants had to consent to a judge’s jurisdiction before they were subjected to it, much as happens today in the international realm among states. But with the entrenchment of the modern state, the unilateral conception of judges as mere appliers of the law to inanimate subjects has come to prevail and it tends to relativise the consensual form of adjudication implied in international adjudication and in arbitration, consigning them to the status of non-central cases of adjudication. This presentation attempts to suggest otherwise: that, despite outward appearances, judges, in the central (national) case, ought to be (and are in fact) responsive to litigants and their counter-claims about the law in a way that makes them not so much (passive) appliers of the law as (active) mediators and negotiators of it. And it is precisely that aspect of their role as mediators of grievances of those initiating the judicial process that explains that law is co-extensive with, though not reducible to, judicial creativity, a concept which I try to elucidate. The purview of the analysis of the thesis is judicial creativity in contract law, broadly conceived, and I try to explain why a study of judicial creativity is particularly fruitful if it is grounded in an area of law (and thus empirical) and in particular, in contract law broadly conceived (not limited to private contracts). Yet, the methodology of such a study is difficult to settle on despite the flowering of empirical approaches to the study of judicial activity. I try to suggest that this is related to the twin fact that judges are mediators of social processes and intelligent agents interacting with them in a way that makes reducing their interaction with texts and litigants’ grievances to binary positions (for/against; conservative/progressive), as happens fairly often in empirical studies, misleading.
About the speakers:
Michael Widdowson is a PhD researcher in Law at the European University Institute (EUI) in Florence, Italy. His research interests cover the areas of Comparative Law, Equity and Trusts, Law and Technology and AI. He is currently focusing on his PhD research under the supervision of Professor Mathias Siems entitled Are Trusts Transplantable? An Analysis of the Rise of Trusts in the French Legal Tradition. Michael gained practical experience by doing an internship in government procurement law. He also acted as a presenter and researcher on a law show entitled Critical Law TV for local television. He worked on the property law episode, which investigated the extent to which new building safety laws protected tenants who had flammable cladding on their properties. Following this experience, Michael is keen to make legal study more accessible through the media and roleplaying workshops.
Fouad Saleh is a Researcher in the Law Department currently working on a PhD thesis titled The Logic of Judicial Creativity: A Comparative Study of Judicial Reasoning in Contract Law.
Vanessa Villanueva Collao is a Max Weber Fellow in Law at the European University Institute, where she is conducting an empirical project on the role of investors in Decentralized Autonomous Organizations (DAOs). Her research interests lie at the intersection of corporate law and technology, specifically in blockchain, decentralized finance, decentralized governance, and artificial intelligence. Her secondary research focus is on comparative law and methodology, where Vanessa employs empirical quantitative analysis from the social sciences to explore how, rather than why, legal systems should be compared.