You Don’t Need to Be a Superhero to Be in the Justice League: Rethinking Justice Hackathon (3-4 March 2018, Brightlands Smart Services Campus)

Making the world a better place is easier said than done. Ours is a shared world: citizens, businesses, states and institutions all face the same risks and challenges, and so there is a constant need for society to innovate – to find better ways of doing things. Ideally, this can be done in order to bring about more justice in the world. What we mean by justice is simply more fairness, in the way in which citizens, civil society, businesses and public institutions interact with one another. While thinking about broad theme has its advantages, we want to create a nurturing environment and mindset where someone with an idea can go ahead and do something about it. This is how the Rethinking Justice Hackathon came to life: students, staff and alumni from Maastricht University, as well as friends from industry, coming together in a 24-hour hackathon to celebrate free thinking and enthusiastic doing.

As one of the youngest Dutch universities, Maastricht’s pedagogy has always stood out because of its Problem-Based Learning (PBL) approach: departing from real-life problems and learning by doing, either through independent inquiry or group collaboration. For this reason, we consider hackathons and PBL to be a match made in heaven: creativity, leadership, perseverance, empathy, communication – all of these 21st century skills that are so central to modern work experiences have friendly roots in the pedagogical concepts of Maastricht University education.

Organized by the independent law & tech community Technolawgeeks with the support of Maastricht University and the Brightlands Smart Services Campus, the hackathon celebrated rethinking justice in four different challenges: The Hague Institute for the Innovation of Law (Social Justice challenge); eBay (E-Commerce Conflicts challenge); Dubai International Financial Centre (DIFC) Courts (Courts of the Future challenge); and Maastricht University’s Institute of Data Science (Data-Driven Justice challenge). Each of the partners hosted a workshop for participants (online/offline), to share with them how to relate to the challenges from the perspective of their own disciplines and expertise, while also allowing the participants to immerse in the way of thinking of the Hackathon partners.

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Innov-AI-tion Law for Technology 4.0 – An Interdisciplinary Conference

The European and global society is gradually transitioning into the fourth industrial revolution, marked by an exponential technological advancement of Artificial Intelligence (AI), such as works of art created by AI systems, algorithmic decision-making and autonomous vehicles. The profound transformation of our society creates a pressing need for a clear legal framework that the EU is currently seeking to develop within Digital Single Market, notably through the adoption of the recent EP Resolution on Civil Law Rules on Robotics.

The conference will be composed of three panels, tackling respectively the questions of private law, IP and privacy (please see below the conference programme). The concept of the conference is rather unique, as each topic will be covered by two presenters having different backgrounds (one from law and another from technology).

The conference undertakes to respond to the quest for establishment of a regulatory framework by putting to debate questions still unsolved that touch upon several fields of law:

(i) Private law: What types of regulation should govern AI liability, and which actors should be involved in these regulatory approaches?

(ii) IP law: Who should hold copyright over works of art created by AI agents and can AI-generated inventions be patented? How does the IP and data interface work in the context of AI?

(iii) Privacy law: How to protect privacy and ensure accountability for decisions taken by autonomous AI agents affecting humans (e.g. automated tax decisions)?

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Thou shalt not cheat! – Ivey v Genting Casinos (UK) Ltd t/a Crockfords

By Alexandru Daniel On

 

Every once in a while, I have the good fortune of reading a court case which is both fun and educational. The UK Supreme Court case Ivey (Appellant) v Genting Casinos (UK) Ltd t/a Crockfords (Respondent)[1] is one such case, which tells an interesting story, while also explaining to the public the limits of cunning trickery in gambling.

The facts of the case have the flavour of a scene from the Ocean’s trilogy, and hearing Lord Hughes recount the story is a real treat (Lord Hughes delivered the unanimous decision of the court, and a video of the judgment’s summary is available at https://www.supremecourt.uk/watch/uksc-2016-0213/judgment.html).

On the night of 20 August 2012 Mr. Ivey, a professional gambler, together with another professional gambler, Ms. Sun, joined a table of Punto Banco Baccarat at the defendant’s casino (Crockfords). With Ms. Sun’s help, and by employing a technique called “edge sorting,” by 6:41 PM the next day, the claimant had accumulated winnings amounting to £7.7 million.

Punto Banco Baccarat is a game of chance, not skill. Six or eight decks of 52 cards are dealt from a shoe, face down, by a croupier. Ordinarily, the croupier slides two cards to the position of the player (“Punto”) and two to the position of the banker (“Banco”). In certain circumstances, the croupier must deal one further card, either to player or banker, or to both. The goal of the game is to achieve, on one of the two positions, a combination of two or three cards which, when added together, is nearer to 9 than the combination of the other position. Ace to 9 cards count at face value, while 10 to king count as nothing. If the total is over 9, only the last figure of the total counts (e.g. if the player has a 5 and a 7, his combination counts as a 2).

“Edge sorting” is a technique which improves the odds of a player by making it possible to identify high value cards and distinguish them from the other cards coming out of the shoe. The technique becomes possible when the pattern printed on the back of the cards is slightly asymmetrical, due to very small differences which can be observed between the two long edges of a card. If a player can manipulate the circumstances so that for the high value cards one long edge is facing in a certain direction, while for all the other cards the other long edge will be oriented in that direction, then he can drastically improve his odds.

In Punto Banco, the high value cards are 7s, 8s, and 9s. After playing with no advantage through parts of four shoes, Mr. Ivey asked for a new shoe of cards. The new shoe had cards with a pattern on the back which could be manipulated by way of “edge sorting.” Mr. Ivey first asked the senior croupier overseeing the game if he could play with the same cards later if he is winning by the end of the current shoe. The senior croupier accepted, because he was the only one touching the cards[2] and no cards were bent in the process. Ms. Sun then, pretending to be superstitious, asked the croupier to turn certain cards in a different direction from others, saying that she believed that if the croupier would do that, it would change her luck. Croupiers are encouraged by their employers to indulge and play along with superstitious behaviour. It plays in the Casino’s favour if players erroneously believe that lucky charms or lucky practices will work in their favour, when in fact they do not improve their odds at all. Mr. Ivey’s bets were rather modest while this shoe was played, but at the end of the shoe he announced that he was winning and wanted to play with the same cards. After the cards were reshuffled, the accuracy of his bets increased. Although the difference in the two edges was small, with a sharp eye, Mr. Ivey could now see before a card was taken out of the shoe whether it was a high value card or not. He played until the early hours of that morning and in the afternoon of the next day, always with the same eight decks of cards. As mentioned before, his total winnings amounted to £7.7 million before he retired from the game on the evening of the 21st.

The practice after such a large win is for the casino to conduct an ex-post investigation. Before this incident, nobody at Crockfords had ever heard of “edge-sorting.” After reviewing CCTV camera footage, the investigators identified the method used by Mr. Ivey. Following the investigation, Crockfords returned Mr. Ivey’s deposit stake (£1 million), but declined to pay Mr. Ivey’s winnings, arguing that he had cheated. Mr. Ivey then sued the casino to recover his unpaid “winnings.” The trial judge and a majority of the Court of Appeal ruled in favour of the defendant. The Supreme Court, in a unanimous decision, affirmed the two judgments, and rejected Mr. Ivey’s appeal.

The issues addressed by the Supreme Court were (1) the meaning of the concept of cheating in gambling; (2) whether dishonesty was a necessary element of cheating; and (3) what is the proper test for dishonesty, if dishonesty were to be considered an essential element of cheating.

Lord Hughes’ opinion in this case (with which Lord Neuberger, Lady Hale, Lord Kerr and Lord Thomas agreed) is very detailed and carefully written. In summary, it was held that what Mr. Ivey did was in breach of an implied contractual term not to cheat, and therefore he was not entitled to his “winnings”; dishonesty is not a necessary element for cheating; and the proper test for dishonesty is an objective test, using the standards for dishonesty that “ordinary decent people” hold.

The arguments made by Lord Hughes are rich in quotable material and besprinkled with funny analogies. One learns, for instance, that “the runner who trips up one of his opponents is unquestionably cheating, but it is doubtful that such misbehaviour would ordinarily attract the epithet ‘dishonest’”;[3] and “[t]he stable lad who starves the favourite of water for a day and then gives him two buckets of water to drink just before the race, so that he is much slower than normal, is also cheating, but there is no deception unless one manufactures an altogether artificial representation to the world at large that the horse has been prepared to run at his fastest.”[4] Conversely, “the unorthodox lead or discard at bridge is designed to give the opponent a misleading impression of one’s hand, but is part of the game and not cheating;”[5] and, my favourite, “pretending to be stupid at the poker table, so that one’s opponent does not take one seriously, and takes risks which he otherwise might not, may or may not be another example [of deception which does not amount to cheating].”[6]

One striking aspect of Lord Hughes’ opinion is the absence of definitions. “Cheating” and “dishonesty” are treated as “I know it when I see it”[7] concepts. In regard to “dishonesty,” this was made explicit in the judgment: “[D]ishonesty is by no means a defined concept. On the contrary, like the elephant, it is characterised more by recognition when encountered than by definition.”[8] Value judgment on the honest or dishonest character of a person’s behaviour was deemed an issue of fact, not law, to be settled by the fact-finder (jury or judge) according to the standards held by ordinary decent people. “Cheating” was analysed in a similar manner. Defining the concept of cheating was described as “very unwise,”[9] and a “near impossible task.”[10] It was also deemed impractical: what ordinary decent people think “cheating” is changes from case to case, depending on the nature and the particular rules of the game the parties engage in.

Although there were two layers of legal rules governing this case, the Gambling Act 2005 and general contract law, this case was settled in the end by resorting to a third normative layer, composed of the rules and customs inherent to the game of Punto Banco Baccarat. Contract law was the gateway into this third normative system, the question whether Mr. Ivey breached an implied contractual term being contingent on whether he breached the rules and customs of the game. The UK Supreme Court was therefore the ultimate referee in a game of Punto Banco Baccarat.

This was not the first time a supreme court relied on the norms and customs of a game in order to settle a legal dispute. The French 1972 case of Rochman v. Durand[11] was decided on the basis of the customs of the game of football. This was a tort case, wherein the victim suffered injuries as a consequence of a collision with the goalkeeper of the opposing team who fell on the ball with the intention of saving it. Because this was a perfectly normal tackle and in line with the rules of the game, the goalkeeper was not at fault, and therefore the claimant’s tort action was dismissed.

However, such cases are rare. The Supreme Court cannot make determinations on the rules and customs of a game in any given circumstances. The dispute must first be framed in a legal manner; an access point into the legal system must be found. It would be hard to imagine, for instance, a case in which the Supreme Court would settle a dispute regarding the offside trap in football. But who knows?

[1] [2017] UKSC 67.

[2] When players touch the cards, the practice is that those cards are discarded and not used again.

[3] [2017] UKSC 67, at para. 45.

[4] Id.

[5] Id. at para. 46

[6] Id.

[7] “I know it when I see it” is Justice Potter Stewart’s famous test for obscenity. Jacobellis v. Ohio, 378 U.S. 184, at 197 (1964).

[8] [2017] UKSC 67, at para. 48. See also Id., para. 53.

[9] Id. at para. 47.

[10] Id.

[11] Cass. 15 May 1972, D. 1972, 606. An English translation is available at https://law.utexas.edu/transnational/foreign-law-translations/french/case.php?id=1202

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A Thank You Letter (or Hate Mail) for Fred Rodell

Fred Rodell, the once revered Yale Law School professor and the “bad boy of American legal academia”[1] wrote that “[t]here are two things wrong with almost all legal writing. One is its style. The other is its content.”[2] His harrowing words acutely capture my conflicting relationship with (legal) writing, but more on point, it makes the path laid out before me (as someone in legal academia), a more difficult one to take.

In his renowned and (secretly) admired article, Goodbye for Law Review, Rodell professes his dislike for “long sentences, awkward constructions, and fuzzy-wuzzy words that seem to apologize for daring to venture an opinion…” often found in many legal publications. He also takes issues with how editors and publishers presume every writer “to be a liar until he proves himself otherwise with a flock of footnotes,” and describes reading through the sea of legal jargons and overly-cautious opinions as “kicks in the pants.” To him, legal writing is formulaic, pedantic, and spineless. While Rodell’s criticism is an attempt to roast the entire legal community, I feel his disappointed glare directed right at me, for I have committed many of these sins with my very own hands.

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Ius Commune Conference 2017: Workshop on Liability and Insurance

By Dr. William Bull, Doris Beganovic and Stefan Cîrjan

 

The annual Ius Commune Conference was held this year in Utrecht on 23-24 November 2017 and comprised various workshops, one of which was on the subject of ‘Liability and Insurance’. The theme of this workshop was ‘The legal battle against lawful products or services that are potentially threatening to human health’. The workshop was chaired by Anne Keirse; professor of Private Law at Utrecht University and a judge at the Court of Appeal in Amsterdam.

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Can an agreement that was void at any moment due to a violation of competition law be revived?

Crosspost from Monard Law

When a court invalidates an agreement because the rules of contract law were violated (for example because the agreement was concluded as a result of a mistake or deception), then that agreement is deemed to have never existed. It was never valid and never will be valid. Aside from a few exceptions, everything that has already been performed under the agreement must be undone. If an agreement is invalidated for violation of competition law, the consequences are less clear.

It is possible that at the time of concluding a contract the agreement is already in violation of Belgian and/or European competition law because, for example, a producer imposes minimum selling prices on a distributor. In that case, it is also deemed that the agreement never existed.

However, it is also possible that at the time of its conclusion, an agreement benefits from a competition law block exemption, such as exists for distribution agreements, technology transfer agreements and so forth. The agreement is then deemed not to be in conflict with Belgian or European competition law.

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