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The Gender Recognition Reform (Scotland) Bill 2022: private international law aspects

by Eric Clive, CBE, FRSE, Professor emeritus, Edinburgh University Law School

The Secretary of State for Scotland, a Minister of the United Kingdom government, has made an order under section 35 of the Scotland Act 1998 blocking Royal Assent to the Gender Recognition Reform (Scotland) Bill 2022, a bill passed by the Scottish Parliament with a large majority and after considerable consultation and debate. The Scottish government is challenging this order by means of a petition for judicial review. The section 35 order raises important constitutional law issues. It also has private law aspects. It is the latter which are considered here.

One of the reasons given for making the order is that having two different systems for issuing gender recognition certificates within the United Kingdom would cause serious problems. This immediately strikes a private lawyer as odd. We have had dual systems in the law of persons for centuries – in the laws on marriage, divorce, legitimacy, incapacity and other matters of personal status – and they have not given rise to serious problems. This is because the rules of private international law, even in the absence of statutory provision, did not allow them to. A personal status validly acquired in one country would, subject to a few qualifications, be recognised in the other. There is no reason to suppose that this rule is dead, or incapable of application to the personal status of gender. There is no reason to suppose that the new situation feared by the Secretary of State – that a person might be legally of one gender in Scotland and another in England – would ever arise.

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Building families through surrogacy (II) Access to information for surrogate-born children: a children’s rights perspective

In the second of two-part posting, Professor Gillian Black (Commissioner, Scottish Law Commission and Chair of Scots Private Law, University of Edinburgh), Professor Nick Hopkins (Commissioner, Law Commission of England and Wales), and Nic Vetta (Legal Assistant, Scottish Law Commission) outline the Commissions’ joint proposals for a new regulatory regime for surrogacy in Scotland and in England and Wales.

Scots law, as it relates to the rights of children generally, has made significant progress in ensuring that the law places their welfare at the heart of all decision making, and recognises them as independent rights holders.

While encouraging progress has been achieved in relation to safe-guarding the rights of children, not least in terms of the rights recognised in the United Nations Convention on the Rights of the Child, some specific areas of the law do not adequately protect the best interests of the child. One example in the context of surrogacy relates to the current framework which exists for surrogate-born people to access information about their origins.

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Road hauliers versus tobacco and alcohol traders – who bears the burden of excise duty?

by Dr Simone Lamont-Black, Senior Lecturer in International Trade Law, Edinburgh Law School

End of February this year, the Supreme Court heard submissions in JTI Polska Sp Zoo v Marek Jakubowski [2021] EWHC 1465 (Comm). The question was whether article 23(4) of the United Nations Convention on the Contract for the International Carriage of Goods by Road 1956 (CMR) should be interpreted according to the Court of Appeal’s view in Sandeman Coprimar SA v Transitos y Transportes Integrales SL [2003] EWCA Civ 113 or the older (criticised)(1) House of Lords decision in Buchanan v Babco Forwarding and Shipping (UK) Ltd [1978] A.C. 141. The question was considered one of sufficient public importance to merit reconsideration by the Supreme Court.

The point of law at stake will determine whether the excise duty payable following the loss of cigarettes from the appellants’ lorry lies with the road haulier or with the trader, manufacturer or cargo owner trading in the goods (‘the cargo interests’). The decision of the Supreme Court will determine whether road hauliers will continue to be treated differently from rail and sea carriers. Any misalignment in treatment among them would cause problems in competition among different modes of carriage. It would create incentives for the cargo interests to select road transport over other, less environmentally harmful, modes of transport.

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Any takers? An alternative interpretation to abandonment to facilitate the circular economy in Scots law

by Susanna Macdonald-Mulvihill, doctoral researcher at Edinburgh Law School

In recent years there has been a rise in societal awareness of the need for more sustainability and a general push towards creating a “circular economy” in which one person’s junk becomes another’s useful treasure. Internet based sharing sites, such as Freecycle, or Facebook Community groups, such as The Meadows Share in Edinburgh, have popped up to allow people to freely redistribute their unwanted items to those who might have use for them, thus reducing the amount of waste sent to landfill.  However, as Dr Jill Robbie noted in a blog post for Glasgow University Law School, the Scots law surrounding abandoned property is an impediment to the aims of the circular economy. Robbie is not the first to suggest that the law on abandonment is inadequate: the Scottish Law Commission in their Report on Prescription and Title to Moveable Property also highlighted the absurdity of the Scots position of bona vacantia, whereby the Crown automatically becomes owner of all kinds of useless things, including litter and broken household goods.

The principal problem for the circular economy with the law of abandonment is that anyone who sees something left beside a bin (like the chest of drawers in the picture above) and takes it home is technically stealing (Mackenzie v MacLean 1981 SLT (Sh Ct) 40). My great-uncle would have been shocked to learn that his habit of ‘skip-scavenging’ meant he was, in fact, leading a life of crime. But that is only if we characterise such items as abandoned property. Those who currently think the law requires reform may have overlooked a little known principle that could provide legitimate title to those who can make use of another’s rubbish: traditio incertae personae. In short, this is a “transfer to an uncertain person”. The original owner retains title until another person picks it up and assumes ownership. Thus, the property is never truly abandoned because the intention of the original owner is not simply to surrender ownership but to gift it to whomever wishes to have it.

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Digital Assets as Transactional Power

By David Fox, Professor of Common Law, University of Edinburgh

If the law is to recognise digital assets as property for private law purposes, then it would benefit from analysing them as composite things.  The asset is more than mere data.  It is a set of transactional functionalities.  The most important of these is the capacity of the person who holds the private key to effect new transactions which will be recognised as valid by the technical rules of the system.  Analysed in this way, the asset can be viewed as a specific transactional power over unique data entries on the ledger.

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