Judicial Early Neutral Evaluation

My article about ‘Judicial Early Neutral Evaluation and the New Normal’ has been published today by Trusts & Trustees (Oxford University Press): Trusts & Trustees | Oxford Academic (oup.com)


The author’s premise is that in claims allocated to the multi-track, Judicial-Early Neutral Evaluation (‘JENE’) is the new normal. He discusses: the rationale; jurisdiction; and powers of the court to order JENE; its benefits; and the procedure. He concludes that, except where a claim involves the interests of minors and unborn beneficiaries, use of this case management tool is likely to become increasingly routine at the first case management conference where, for example, one party has proposed JENE, and the other has refused consent because he prefers mediation. Whereas mediation requires consent, JENE does not, and the court has the power at the first Case Management Conference to order a stay during which the parties must: (i) take stock and (ii) each carry out a reality check, i.e. before substantial costs are incurred in preparing for trial. Therefore, in an appropriate case, where a binary outcome on liability can open the door to settlement in relation to quantum, relief, and costs, JENE should be considered.

To view the article please visit the ‘Publications’ page at www.ihtbar.com

In the new year I am planning to write an in-depth article about duties and powers of executors and trustees in relation to property and investments, which will be co-authored with a leading trust law academic at Cambridge University.

My new book, the ‘Contentious Trusts Handbook’ contains a practice note contributed by the distinguished Art Historian, Pandora Mather Lees (www.artonsuperyachts.com), entitled, ‘Art & Heritage Assets – Duties of Trustees’, see:

Contentious Trusts Handbook – Law Society Bookshop

Wildy & Sons Ltd — The World’s Legal Bookshop : Islam, Carl

I am currently researching substantive aspects of art and antiquities law for a new book I am planning to write for publication in 2023 provisionally entitled‘Fiduciary Duties, Art and Cultural Heritage’.

Like all of my previous books, this is being researched and will be written in my free time, i.e. during evenings and at the weekend.

A specific question I am addressing is whether, and to what extent there is a bridge between:

(i)     the existence of fiduciary duties in International Law; and

(ii)     the jurisdiction and powers of the English court to award equitable remedies for breach of fiduciary duty in relation to dealings with art and antiquities.

In other words, where there is a lacunae in international law, or a treaty is ineffective, can or does equity give ancillary teeth to international humanitarian law?

In ‘A Fiduciary Theory of Jus Cogens’ , The Yale Journal Of International. Law [Vol 34:331-386], Evan J Criddle and Evan-Fox Decent developed a fiduciary theory of jus cogens [i.e. norms that command peremptory authority, superceding conflicting treaties and customs in international law], arguing that, ‘States must honor peremptory norms as basic safeguards of dignity because they stand in a fiduciary relationship with all persons subject to their power and therefore bear specific duties to guarantee equal security under the rule of law … [and] that this fiduciary model of state sovereignty advances international human rights discourse beyond vague notions of “public policy”, “international consensus”, and “normative hierarchy” toward a more theoretically defensible and analytically determinate account of peremptory norms.’

This was the first step. Following in their footsteps I need to unpack the fiduciary model’s consequences for future litigation to enforce alleged jus cogens violations, including the following threshold concerns:

·       standing;

·       sovereign immunity;

·       causes of action available under English private law;

·       compulsory jurisdiction;

·       forums;

·       the availability of equitable remedies; and

·       recognition and enforcement of English court orders in trans-national litigation.

This rests upon the development of a practical theory of fiduciary government relevant to art, cultural heritage, and diplomacy, that has teeth. That has is roots in classical jurisprudence and the development of the philosophy of equity – which is where I will begin my journey.

‘The fiduciary duties that are enshrined in international law parallel private law fiduciary duties in important respects. Under international law, fiduciaries are obligated to carry out their commissions faithfully, manifesting due care and partiality to their beneficiaries interests. International law prohibits fiduciaries from abusing their positions of trust and confidence to secure special benefits from the cells at the expense of their beneficiaries. The South West Africa cases affirmed that fiduciaries under international law there a freestanding legal obligation to submit to international supervision. And the Nauru settlement suggests that the violation of fiduciary duties under international law may support traditional fiduciary remedies, including compensation and restitution.’ The Oxford Handbook of Fiduciary Law 2019page 363.

Therefore, if an agent of an occupying power expropriates art and antiquities from an occupied state, and the artefacts are subsequently acquired by the museum, is the museum liable for restitution on the grounds of unconscionable receipt?

Under US law, the fiduciary duties owed by diplomats are enshrined in multiple bodies of law and are enforced through a variety of mechanisms. Like other public officials, diplomats subject common law fiduciary duties. The US State Department has also adopted regulations prohibiting diplomatic officers from engaging in certain activities that would violate the duty of loyalty, such as helping a foreign state evade US sanctions. When diplomats violate their fiduciary duties, the State Department can recall them from their posts, suspend or terminate their employment, and expose them to civil or criminal liability in the receiving state by withdrawing diplomatic immunity. In some cases, diplomats may even face criminal liability for violating the fiduciary duties, see further the Oxford Handbook of Fiduciary Law at page 361.

For more information please visit the ‘Art & Antiquities Dispute’ page at www.ihtbar.com or google ‘Art Disputes’ or ‘Art Dispute Barrister’ and click on the link to the page.