Department For Transport sued for *that* ferry contract

Eurotunnel is suing the Department for Transport due to the ferry contract(s) awarded back in December without proper tendering procedures. This turn of affairs is not really surprising and a logical consequence of the poor handling of those contracts.

The merits of the actual complaint, they appear obvious. In my opinion, the use of the negotiated procedure without prior publication based on the grounds for extreme urgency was not legal since said urgency arose from a lack of timely action by the Government. In other words, incompetence by the contracting authority is never a ground to use a non-transparent procedure. It has been public since March 2017 that the departure date from the Union is scheduled for 29 March 2019, therefore the lack of preparation for the consequences of the default scenario for such departure (no-deal Brexit) runs from that moment as well and is not unforeseen (or unforeseeable). This is pretty much well established at EU level and probably one of the reasons why the rules about contract notice transparency are as draconian as they are.

As Albert and myself said back in 2016 about Regulation 32(2), the negotiated procedure without prior notice is exceptional in nature and as such its grounds need to be interpreted strictly as not to create competitive distortions. And the latter seems to be exactly what happened in this instance.

PS: As for piling on Chris Grayling for spending £800k on consultants to prepare the contracts that is probably uncalled for based on the total amount being procured and that time was of the essence (which is different than saying the grounds for the negotiated procedure were met). And let’s not forget one of them actually flagged up Seaborne Freight lack of trading history as a risk factor. That no one heeded such advice, on the other hand, is more than fair game.

Regulations and Directives - food for thought

EU Law 2018 - Unit IIA Extract.png

This is a slide I will be using on Monday’s EU law lecture. I have not drilled down into the details, namely if there is any evolution or if there has been an increase on Commission’s delegated Regulations but I was suprised at the findings.

The EU legal secondary law framework is mostly one of Regulations and not Directives, with all the implications that brings.

Closet protectionism in UK Government's balanced scorecard for large projects?

The UK Government published recently a "balanced scorecard" for works, infrastructure and capital investment contracts valued above £10 million. Here's a snapshot from the press release:

The new scorecard system has been designed to help ensure that major government procurements have a positive impact on economic growth, as well as achieving best value for the taxpayer.

The guidance, developed by the Crown Commercial Service, introduces a balanced scorecard approach, which government departments should use in designing major works, infrastructure and capital investment procurements where the value is more than £10 million.

The scorecard helps procurers to consider the project requirements and needs, with criteria such as cost balanced against social, economic and environmental considerations.

By using this method, government departments can clearly set out how priority policy themes such as workforce skills development, small business engagement and sustainability may be integrated into their procurement activities.

Albert has already put the finger where it hurts: it appears to be designed as a protectionist tool or at the very least with protectionist consequences. I would add that this approach increases procurement complexity (and cost) for both contracting authorities and economic operators but as we are talking about large projects probably the expectation is that such cost will be diluted in the grand scheme of things.  

Having been on the record for the last few years saying social considerations can be easily manipulated for protectionist purposes, I cannot be surprised by yet another protectionist Trojan Horse having been found out in the wild. At this rate we might as well call it a day and just give up on the idea of a single market for public procurement.

As Brexit nears I expect a reduced influence of EU law and the CJEUs effectiveness as a deterrent in terms of compliance with key tenets of EU Law in the UK - and not only in procurement. This is just the clearest example so far.




Links I Liked [Public Procurement]

1. Public Works Slowdown Following Implementation of the New Italian Public Procurement Code.

2. Public Procurement Single Market scoreboard for 2015 is out. I think Albert has criticised the scoreboard in the past, but there is a measurement I find quite interesting - procedures with a single bidder. The figures for some countries like Poland and Hungary are really telling, but it would be important to know as well what is the percentage of procedures without transparency where that is happening.

3. World Bank Public Procurement Benchmarking: Behind the Numbers. More here.

4. UK’s Ministry of Defence No Closer to Winning the War on Procurement Waste.

5. Public Procurement Trade-offs: Commerciality Versus Corruption. Peter Smith raises some important and obvious points about trade-offs in public procurement. Beware the siren's call for more "negotiations".

Abuse of dominant position enforcement: go quick or go home

I have a soft spot for technology and related topics. Over the last couple of years, most of my attention has been on the increasing speed at which new technologies enter the market and go on to establish a dominant position. This is not my idea and people way smarter than me have harped about this for ages. Here's a good example by Horace Dediu from 2013:

The time lag between going from 10% of an addressable market to 90% is getting shorter as time goes on. In consequence, there is no surprise that in "technology enabled" (or sensitive) sectors, we end up with a dominant technology which often is controlled by a single provider. It is true also that the increase in market penetration speed leads to technologies being replaced sooner rather than later. This is particularly true of consumer technologies where platform and network effects are at play.

The current state of affairs has stark effects for competition law enforcement, particularly abuse of dominant position. If any given dominant position is getting shorter, how can we have final decisions with effective remedies in a time frame that makes a difference? The bulk of my argument is that EU competition law enforcement today is simply too slow for any (final) decision to have any meaningful impact in a market subject to quick technological changes. Allow me to provide some past examples, before getting to today and the future

Let's talk phones

Telephones are a great example. Landlines took 50 years to reach a 90% penetration rate in the USA (see image above). Feature phones only took 9 years to do so. However, both are on the wane. I do not have the data for landlines, but cell phones were down to 60% marketshare in 2011 and by 2013 they had been overtaken by the smartphoneBy 2015 the smartphone reached 89% of the USA's population. If we take the iPhone launch in late 2007 as the watershed moment for smartphones, they reached the 90% threshold in only 7-8 years even though the average selling price for handsets today is higher than it was in the feature phone generation.

And who were the big players of the feature phone generation? Nokia, Motorola, Samsung, SonyEricsson (nee Ericsson), RIM, Siemens, Alcatel, etc. What do all these feature phone makers have in common? Virtually none is alive today with the exception of Samsung and Sony (Motorola was first acquired by Google and then Lenovo). They all missed the jump for the next big thing and became fringe players if anything.

If say Nokia abused a dominant position in its feature phone heyday, no amount of remedy would have changed the outcome. But I am not claiming Nokia abused its dominant position. Microsoft, however...

What about Microsoft?

Microsoft however, is a perennial candidate for abuse of dominant position accusations. It has gone through a few grillings (anyone remember Netscape?) and in the EU there is a particular case all competition law students are at least familiar with: Microsoft v Commission (Case T-201/04). The process leading to Microsoft v Commission started in 1998 with a complaint by Sun Microsystems (another casualty of creative destruction) which led to a preliminary decision by the Commission in 2003 and a final judgment by the Court of Justice in 2007. A cool 9 years from start to finish. Oh wait, Microsoft did not comply with the decision and was fined again in 2008 by the Commission, before an appeal to the Court of Justice which settled the issue in 2012. 14 years from start to finish then. Oh, and that is not even the "browser choice" case which was only concluded in 2013...

In the end, the remedies aiming to protect competition became redundant as technology moved on. Microsoft no longer has a dominant position on the server market and its relevance in personal computing is much reduced when tablets and/or smartphones are added to the mix in addition to laptops and desktops.

Again, change in the market was brought about not because of the competition law remedies (which were just upheld for the most part in 2012) but due to new technologies replacing Microsoft offerings, mostly smartphones and tablets. Microsoft botched the jump, that is all.

In a sense, 2004-2007 represents the high water mark for Microsoft's "market influence" and the coincidence of regulatory intervention right at the peak indicates a clear lag on its activity and the production of its effects. Again, I cannot claim this is my idea as the case was beautifully put by Ben Thompson and James Allworth on this Exponent podcast episode. Which brings me to the current occupier of the dominant position hot seat: Google.

Google who?

Google has been in subject to competition law investigations for abuse of dominant position(s) in the EU for some time. ArsTechnica has a great roundup of the company's run ins with EU competition law enforcement. In summary there are two main competition cases against Google at this moment in time. One, started in 2010 based on its comparison shopping practice of giving higher relevance to its own products and where the Commission only produced its preliminary findings in 2015. Then, earlier this year the investigation into Android

In both situations we are years (nay a decade) away from a final decision. The Commission will come up with is proposed remedies and fines, things will go back and forth before reaching the Court of Justice where they will stay cooking in a very low heat for a few years. And then what? By the time we have a final decision, any remedies designed to protect competition in the affected markets will simply be out of date and pretty much irrelevant for the technological landscape. By the time the dust has settled, search will probably no longer be done on a browser (making the first case redundant) and Android will be a footnote in history, replaced by new platforms such as VR, Augmented Reality or the IoT (speculative, who knows?) Before we get there, however, we will probably stop at a small station called "messaging".

Whatsapp with you?

The next battleground for dominant positions is probably going to be mobile messaging. Mobile messaging has the characteristic of being composed by both networks and apps. Only the apps supported/authorised by the network can use it, thus putting a significant power in the hands of the network owner or operator.

Messaging apps fall prey to network effects: the usefulness/perceived value of a mobile messaging service goes up exponentially with an arithmetic increase of users. It is a good example of a "winner take all" market, or in other words, a market where there is a tendency for a natural monopoly to emerge.

We can slice and dice messaging apps in many different ways to define the market for purposes of determining the existence of a dominant position. A simple way to do it would be to separate one to one from group messaging networks. As far as European markets go, in the first we have the good old SMS or Apple's iMessage and in the second Google Hangouts (sorry, Allo?), Facebook Messenger, Whatsapp in addition to a string of smaller players. For the purposes of this blogpost, my interest is in the second category, where one should expect consolidation to occur in the next few years and a clear winner (or winners) to emerge sooner rather than later. In fact, in Europe the winner has already been found: Whatsapp.

Whatsapp is a particularly good example to look at in the context of abuse of dominant position enforcement in technology enabled sectors. The company was established in 2010 and acquired by Facebook in 2014.

As of 2014 Whatsapp was installed in more than 50% of all smartphones in Spain, Italy, Netherlands and Germany. In the UK and Ireland, the figure was 34%. Another stat puts the total installed user base in "Europe" at 33% in late 2015, not far from the 40% dominant position presumption threshold. Personally, I suspect current numbers are probably higher as the company claimed in February 2016 having a user base of 1 billion, doubling in just two years. I know that the share of installed user base as a percentage of the total number of smartphones used is only a proxy for actual use, but a decent one at that.

 We can divide Whatsapp into two separate components: the Whatsapp network and the Whatsapp client. As of today, only the official Whatsapp client can connect to the network. But it was not always like that. Until early 2015, third party clients could connect to the Whatsapp network, providing users with alternatives to the official client. While there might have been some reasonable reasons for the ban (security and privacy concerns, lack of resources to manage/investigate all third party clients) the fact is Whatsapp banned all third party clients from its network even those which provided real added value over and above the official client. On a different network, many of features we now take for granted on Twitter were actually created by third party clients (mobile app, pull to refresh, url shortening, etc).

Going forward, Whatsapp banning third party clients also forecloses the possibility of new technical developments and products to be developed for the Whatsapp network by third party developers. For example, what if someone wanted to create a functionality which allowed users to send money to one another over the network (as WeChat allows since 2014)? Or a concert promoter to sell tickets via an integrated payment system like Paypal or Square? It is fair to say that by banning third party developers, Whatsapp may be foreclosing the possibility of new innovations with a real market from appearing.

And that brings us full circle to the Microsoft dominant position abuse case mentioned above. In that case, the General Court held that Microsoft had abused its dominant position by restricting technical development, a significant departure from previous cases where the potential for new products had been required. While I still think Whatsapp third party clients have the potential to unleash new products which is currently foreclosed, the company would be unable to meet the restriction of technical development set in Microsoft.

There is no indication Whatsapp is going to be investigated for abuse of dominant position. Even if it was, the full process from start of investigation to actual enforcement of remedies would surely take over a decade to run. In consequence, it is likely that the remedies would effectively be applied at a moment in time where Whatsapp no longer has a dominant position or even the remedies no longer have an actual useful effect due to technological advancements.


Of course that the points I am raising here are debatable - but that is also part of the problem. The debate (ie, investigation and enforcement of a final decision) on the dominant position should occur within a timeframe which allows for useful remedies to be implemented while they still make sense.

The current EU abuse of dominant position enforcement system is ill suited for technology enabled sectors in the 21st century and there are two ways of reforming it. One, would be to make all stages quicker (a lot quicker) so that remedies have a chance to work instead of being applied out of time. The second option would be to make do with enforcement at all since today's dominant positions are inherently unstable (a topic for another post) and as the speed of market penetration by new technologies accelerates, the period of dominance for any given company/technology becomes shorter and shorter thus muting the need for enforcement.

Abuse of dominant position enforcement, please go quick or go home.




Reflections on a year of academic blogging and the road ahead

2015 recap

2015 was a funny year and my first foray into academic blogging. I started this blog at the end of January while attending a conference on framework agreements organised by Dr. Marta Andrecka at Aarhus University. At the time my personal ambitions for the blog were quite limited - all I wanted as a venue and a schedule to write about public procurement outside the more traditional academic settings. I reckoned that 2 posts per week and 100 visits/month would be a good result for the first year.

And then February came along and the coalition Government dropped the Public Contracts Regulations 2015 bomb on us and I had the crazy idea (influenced by Dr. Carina Risvig Hammer while having brunch in Copenhagen) to comment on every single Regulation. I could not do it by myself (me, keeping up with a post a day rhythm for 6 months?) and recruited Dr. Albert Sanchez-Graells for the folly. In total we wrote 230 blogposts about the Regulations and I reckon we clocked a total of 70-80,000 words in the meanwhile.

After finishing that session of endurance blogging we could have left it there and moved on for new things. To a certain extend we did, but it was clear for both of us that all that effort deserved a better home and environment than the deep archives of our blogs. I am thrilled to say that the Society of Legal Scholars awarded us in late November a small grant to compile/merge the commentaries into a single joint commentary and give it its own website. As for timelines, I will refrain from announcing any before we can be 100% certain of being able to comply with those timelines.

On the subject of grants and 2015-16 projects, I am incredibly grateful for the British Academy Rising Star Engagement Award received in March. It made possible the Public Procurement Podcast and also the upcoming Early Career Researcher Conference which I am running next March. By the way, we are still accepting applications for participation until next Monday (January 11th).

2015 Stats

My guess is that I probably wrote around 200 blogposts in 2015. As for visits, this blog received 5,500 in 2015 - a much better end result than anticipated, so thank you for dropping by! I have no way to track the downloads on my presentations and papers, but my SSRN numbers for 2015 were also quite good, with around 400 downloads in the year.

The road ahead

The plan for 2016 is to double down on comments about public procurement in general as I did in 2015. In addition, I want to comment caselaw more often (and more quickly...) as my guess is that people like that type of content and it forces me again into a certain rhythm&discipline, something I find important to drive output. You will find from time to time non-procurement content, mainly on legal education, startups and legal technology. I need to think and write more in those areas.

As for specific research interests, I will focus in 2016 on three main areas: EU public procurement thresholds; blockchain uses in public procurement and framework agremeents/dynamic purchasing systems.

Links I Liked [Legal Education]

1. Watch out law students and recent graduates, Kim is looking for your job. No, not that Kim, but the AI system being deployed by Riverview Law.

2. All change, all change in access to the profession(s) in England and Wales.  Plus, apparently the SRA is behind the idea of a national exam. I remember fondly (not) my experience with the national access exam back in Portugal. But with 100 law schools and God knows how may BPTC/LPC providers, I do not see how it could be otherwise - other than getting rid of it all.

3. Harvard Law Library decides to scan every judicial decision on its archives. It needed to be done, but shame it is destroying the books in the process.

4. Law School Exams and the IRAC Method. A colleague of mine mentioned this exam/problem question answer technique on a revision lecture last week.

5. I am featured on this month's "Do one change" by the Swansea Academy of Learning and Teaching about the work I did with assessments for Startup Law. I do love talking about teaching and learning in law bur never expected that what I do might be relevant in other disciplines. You can find a video of a Startup Law presentation on the same link. A more up to date version of the slide deck is available on the Presentations tab.

Links I Liked [Legal Edition]

1. Wither LPC? Apparently the Legal Practice Course is on its last legs. Not surprising and frankly in my view very overdue. When former students tell me that the level of detail is similar to what was achieved in one of my modules, that indicates me there is no real need for the course. As for the argument put forward by the Law Society that with mandatory exams instead of the course "poorer students will be worse off" can someone please explain me how not having the expense of the LPC (and eventually accompanying debt) would make life more difficult for disadvantaged students. My father studied for both his law degrees while working odd jobs and was not exactly well off during that time. Not having the expense of an LPC certainly helped his career.

Contrary to what people might expect I am actually in favour of the Competence Statement of Solicitors which calls for no approved pathways or required courses. This forces Law Schools to be more competitive, innovative and justify their own existence based on merit instead of privilege.

2. Solicitors and barristers among professionals least likely to be replaced by robots, research reveals. Possibly true, but we certainly won't need as many. It would be interesting to see how the profession ages in the next few years, i.e. checking the age of the average barrister/solicitor. Is it going up or down? If up, faster or slower than the average population? 

3. ...Related with the previous one: Too many graduates, not enough jobs (in the US at least)? As I was told recently by a Head of School when everyone claims their numbers are going up we are either at the peak or post-peak with people window dressing and hiding the holes in their recruitment. Recruitment numbers in the US went down over 30% in a few years and it is a question of time until it starts happening in the UK as well. A 30% drop in the UK legal education market would mean 6,000 fewer students per year. In other words, probably close to 50% of law schools would become unsustainable.

4. Fascinating write up on smart and not-so-smart contracts. For the technically inclined. Particularly valuable for the comment about teaching programming language(s)/basic computer science in law degrees, something which mirrors my views on this.

Thoughts about education [Legal Education]

Yesterday Swansea Academy of Learning and Teaching (SALT) held its yearly conference. This time around myself and Dr. Ana Da Silva did a presentation on the work with Startup Law, a module I created while at Bangor University (and to which I am very grateful for allowing me to use data collected over the years there). Our presentation can be found in the presentations folder. We had great feedback and excellent questions from colleagues from various disciplines.

It was great to see so many presentations about education in general and by far my preferred one was Phil Newton's keynote where he debunked a series of myths about supposed "evidence based" educational theories. It seems that in education - as in procurement - there is a dearth of evidence based for some popular theories such as learning styles. Some stuff like micro-teaching or direct instruction (really?) works and there is evidence for it, but the jury is still out there for other theories and ideas such as discovery learning

Furthermore, most of the gain is to be found in the low hanging fruit which allows mediocre lecturers to become average ones. Things like good slide decks (they are not your notes...), content structure, pacing & voice projection or peer observations. All these take a little bit of time and effort but pay back in spades.

What does this mean for legal education?

First, based on my own limited experience, Phil has a good point in so far as to the discovery learning vs direct instruction debate. I saw in Startup Law the effect of moving from a discovery learning approach whereby students were left to their own devices (based on my experience as a lawyer where meaningful/timely feedback was rare) to a more direct instruction where meaningful feedback was provided quickly and indicated clearly what had been done incorrectly. I still refrain from too much hand holding as one of the purposes of the module is precisely to expose students to the unsettling feeling of not knowing what is expected exactly from them and learning to deal with those insecurities.

Second, we are still not engaging enough with cutting edge pedagogical research. Now, this would not be a problem had there not been a drive over the years to reward good teaching (as it should be), pedagogical "training" (torture...) such as the PGCertHE, as well as moving staff to teaching and management contracts. The latter should be the ones pushing this agenda, but I am yet to see widespread engagement by those who have most to benefit to do so.* Maybe things are different in teaching intensive schools?

Third, I stand by my previous comments that legal education is not practical enough in the UK (or the continent for that matter). I hated how I was taught law 15 years ago and we are still stuck in the same paradigms. We should look at the US, which in turn look at what medical schools are doing to develop skills in future doctors. I may falling for an availability bias though, as the better half specialism is in medical education.

Finally, as a class we are very risk averse. Most of the teaching changes I have seen over the years are simply responses to student pressure lest those National Student Survey results come down tumbling. More lecturers should be taking risks, testing and validating new ideas. To be honest this implies a buy in from the organisation, particularly the key decision makers which need to provide appropriate air cover in case something goes wrong. When it comes down to innovation you need to practice what you preach and accept failure. If the institution is not ready to accept failure it will never foster innovation. I have been lucky so far that my Heads of School/College were former lawyers and with a keen interest in making legal education more appealing.

* I am on a teaching and research contract and swing both ways. I like to do research in my main core area(s) - procurement and startups - but also in pedagogy, colloquially known as scholarship, lest it be confused with research.

PS: When in doubt, ask Eric.

Sentences to ponder [Law firms and procurement]

Honeywell uses reverse auctions to procure legal services by law firms:

"Using reverse e-auctions to procure legal work isn’t entirely new, but companies have typically limited bidding to high-volume, non-critical workHoneywell General Counsel Katherine Adams is using e-auctions on a larger scale, even for litigation. Law firms, Adams said, were initially “kind of shocked by this.”

“We might e-auction a litigation matter and set certain parameters. We might say, okay, assume you have to take the case through trial, assume there will be summary judgment motions, assume there will be some number of experts — all the variables that might go into the case,” Adams said. “Then the firms bid against each other.” "

More here. So much for the "but we're different argument" presented by the legal lobby for years justifying their inclusion in the Part B services section of Procurement Directives and now on Social and other specific services exception under Article 74 of the Directive 2014/24/EU. Which, coincidentally will be the topic of today's entry in my public procurement tennis match with Albert.

This willingness by the legal profession to be treated as any other service when in private procurement needs to be taken into account in the next revision of the Public Sector Directive.

Some legal and practical thoughts about Uber's ban in Portugal

Uber was banned from operating in Portugal yesterday after an injunction was granted by a national court in addition to a €10,000 daily fine for contempt of court. This injunction was requested by the National Taxi Driver Association (ANTRAL) and although the details are sketchy as the sentence was not published, here are my thoughts:

1. These are interim measures, not the final decision

The Portuguese Civil Procedure Code establishes the possibility of any party requesting an injunction to protect their rights before a final decision on a case is produced. These are interim measures set via a parallel and quick procedure, decided separately from the main action or case. The logic here is to protect interests or rights from further damage. Assuming my knowledge of Portuguese procedural law is not woefully outdated, an injunction can be granted if all of the following requirements are met:

i) likelihood of an underlying right (fumus bonis juris);

ii) likelihood of damage to underlying right if action is not stopped (periculum in mora);

iii) adequacy of proposed interim measures to protect the underlying right;

For an injunction to be granted, the judge looks for those three requirements and has to be reasonably convinced all are met. However, it does not need to be 100% certain that the underlying exists, only that it is likely to exist.  In other words, the judge held that he/she thinks ANTRAL (the claimant) probably has an underlying right, that Uber's continued operation in Portugal would damage such right and that the interim measures (blanket ban, disconnecting website) are adequate to protect the alleged right.

In addition, under certain circumstances (whose details evade me now other than their connection with a risk to the effectiveness of the interim measure proposed) it is legally possible to get an injunction decreed even without hearing the counterparty. I suspect that this happened with Uber. When the counterparty is not heard, they are entitled to be heard afterwards and present their case arguing why the interim measures should be struck down.

Crucially, the injunction decision has no impact on the main case, ie it does not establish any kind of precedent or limitation on the judge's ability to decide the final decision differently. If my memory serves me well  I think that is either mandatory for another judge to decide the main case or at least it is quite common for different judges to do the injunction and main procedures.

2. What can Uber do

If they have not been heard yet within the injunction process, present their case. Otherwise, they can appeal the decision. Remember, this is a separate process from the main action. The main action will follow its normal (glacial) course in the Portuguese court system.

3. What can Uber drivers do

I am not sure but I assume they were not parties neither to the main action nor the injunction but only Uber is, so technically they could continue operating assuming they had the infrastructure to do so. Having said that, I would love to see the service agreements they signed with Uber (assuming such document exists).

My knowledge of the Procedural Civil Code does not extend to the rules regarding third parties joining actions on either side. If Uber ultimately prevails (something I find unlikely) they could sue ANTRAL for damages though.

4. Some thoughts about Uber's expansion strategy

Uber's expansion strategy into new markets has always been to "fire first and ask questions later." They take their products and launch them in said new markets without worrying about the legality of their service(s) following what the French would call a "fait accompli" approach to expansion.

The upside is that they win either way. If the laws do not protect local incumbents (as they tend to do in many markets, for example here in the EU) then their services become quite popular quite quickly. If, however, local laws protect incumbents one of two things happen: one, said incumbents do not fight back in an organised fashion or do so in haphazard ways (ie, like the taxi protests in London) and pay a reputation price; two, they use the court system to defend their vested interests, and even if successful (as in Portugal and Spain), they also pay a reputation price. Plus, because people have used the service and genuinely find it superior will complain loudly and become a free lobby group for the company. The end game is probably to use that wave of support to drive legal reforms through.

On a related note, Airbnb has followed more or less the same strategy but has been able (for the most part) to avoid a string of legal challenges, although the day of reckoning may come  due to tax issues. Perhaps the hotel industry does not perceive it as a competitor and as such is less inclined to make a united front?

5. What is my take on all this

Personally, I am in favour of de-regulation of most professions/occupations and see no reason why passenger transport should be so heavily regulated or subject to preferential treatment. This view extends to other areas such as pharmacies or (gasp) lawyers. Having said that, while the laws protecting said interests exist, they are to be complied with.

Moreover, if regulation is to come down the pipeline it must ensure that the playing field is level as I can totally see Uber creating a dominant position in the market and well, let's not mince words: abuse it. That is the real endgame here.

How would we go about it then? I am not sure, but here are two ideas to get the ball rolling:

1. To force interoperability and restrict driver exclusivity; or,

2. The opposite, to consider drivers as company employees, thus restricting any company operating in this market the ability to outsource many costs (fleet, national insurance, insurance, etc).

PS: Oh, by the way, I have nothing against surge pricing. Au contraire.



Can robots have human rights?

Is it cruel to kick a robotic dog?

A few weeks ago we were having lunch with a couple of friends and the conversation turned into what future generations would find horrifying in ours as we now see homophobia or racism (which were part of many Western legal systems until very recently). My suggestion was the treatment of machines, particularly robots.

For me, what I can see in the video is a lump of metal with no conscience or feelings instead of a real dog. Would people feel so queasy if what was being kicked around was an autonomous car, a drone or even an assembly plant robot? I do not think so. The only reason I can think why some people are disturbed by the video is because that particular lump of metal resembles a dog and we generally treat dogs nicely. Same can be said about that humanoid Sony robot.

I have been thinking about this for a good while now and would not be "robotic human rights" will be the next "human" rights battlefield, after their recent conquest of corporate entities is complete. My take is that research councils will follow shortly.


Links I liked [Legal/Legal Education]

- I for one, welcome our Watson overlords

Although calling it Ross, immediately brings to mind that clueless Ross from Friends

- eBay style marketplace for Online Dispute Resolution

Very handy for one of my Ph.D students who is looking precisely into this. Proposal by Susskind.

- Law students should know more than just law, maybe some maths

Fully support ideas like this, although it is easier to pull of in the US. The lack of numerical skills is a big, big limitation in legal practice. Just makes no sense to me. On this note...

- Why do lawyers need maths?

Same vein as above. Excellent looking new site by Dr. Steven Vaughan (@lawvaughan), instant addition to my Feedly.

- DLA Piper "rolls its own" e-learning platform and will provide training services

What does this tells us about legal education in general and CPD in particular? You are out of touch and stuck on an obsolete paradigm when one of your potential biggest clients becomes a competitor.