Academic papers I enjoyed reading

Since September 2015, I’ve been working as a Research and Teaching Faculty member of Leiden University (the Netherlands) and as part of my role, I’ve been reading a wide variety of academic papers.

I thought I would post some of the articles I’ve read, and found particularly interesting, through this post. Maybe you will enjoy reading them to.

I will briefly comment on the aspects of the paper that I found to be interesting. Obviously, for intellectual property considerations, I’ll only provide links to the full text of articles that are already available in the public domain. (Usually this is done through university repositories and SSRN]

  • Feldman, Eric and Stein, Alison I., Assuming the Risk: Tort Law, Policy, and Politics on the Slippery Slopes (2010). Faculty Scholarship. Paper 296. [Also published in Feldman, Eric and Stein, Alison I., “Assuming the Risk: Tort Law, Policy, and Politics on the Slippery Slopes”, DePaul Law Review, Volume 59, 2010, pp. 259-303]

    This was part of our required reading for International Tort Law during my LLM (Adv.) programme in International Civil and Commercial Law at Leiden University.  I will be honest- aside from a few perilous journeys down a ski slope, I was largely unfamiliar with the ski industry before reading this article. Not only did I learn about how the ‘assumption of risk’ doctrine (a.k.a. volenti non fit injuria) historically developed in the USA, but I also became informed of how the ski industry works in Vermont and Colorado and how a nexus of factors influence the debate on assumption of risk in an inherently ‘risky’ activity: inter (and intra) state politics, the clout of large ski slopes, the leverage of insurance companies and, of course, landmark tort litigation. The article serves as a reminder of how strong the law and economics scholarship is in the US!


  •  GM Gulati, TMT Isaac and WA Klein, ‘When a Workers’ Cooperative Works: The Case of Kerala Dinesh Beedi‘, UCLA Law Review, Vol. 49, 2002, pp. 1417-1454.

    This is an article I just finished reading (04.02.2016) as part of my research into the internal administration of worker cooperatives. A lot of the literature (in English) on this topic concentrate on cooperatives in the Global North (i.e. Spain, USA, Italy, UK) with a relatively small number of academics studying those that exist in the Global South. In some ways, the latter group should be the locus of a rich vein of research. On the one hand, cooperatives in developing countries have suffered from endemic government interference, corruption, dearth of necessary cooperative education and training as well as the degenerative tendencies of many cooperatives: lack of a long-term orientation, intra-member conflicts over residual profit distribution, managerial impotence and shirking being just some of the observed problems. On the other hand, examples like the Kerala Dinesh Beedi cooperative(s) is a heartening example of how worker-controlled and managed firms can flourish in a capitalist economy.

    Let me first explain why it is so remarkable. Several cooperatives in India, and in the state of Kerala in particular, have failed due to government interference. Beedi, the product manufactured by these workers, is a cheap cigarette and the return per pack of Beedi is infinitesimally small. As a result, wages and working conditions in the industry are correspondingly abysmal, with regular media exposés of child labour being used. In such an industry, it is remarkable that the workers of such an industry were able to buy-out a Beedi manufacturer and establish a firm that has been a market leader in the production of Beedi since the mid-1960s, employs tens of thousands of heterogeneous member-workers, pays well above the industry standard (3 times in 2002) and has now diversified into other products. They were able to survive, even when their annual turnover was reduced by two-thirds!

    What the article reveals is the confluence of factors that allowed such a cooperative to survive the vicissitudes of competition, recession and falling demand for tobacco. By fleshing out the internal workings of the cooperative, from the shop floor worker to the central cooperative board of directors, we see that having ideologically dedicated and hard working directors and professional management, a slim management structure, mutual monitoring by workers, high product quality standards and high worker satisfaction can collectively contribute to a successful and long-lasting worker cooperative. The article is easy-to-read (I read a lot of it on the train between Leiden and Den Haag) and it provides delightful observations, like the practice of supervisors reading newspapers and stories to the shop floor workers as entertainment.

Are Class Actions Possible in Bangladesh?

Simply put, class actions are civil suits where one or more plaintiffs are permitted to file a suit on behalf of a broader group (or ‘class’) of people. In other words, it is a procedural device used by courts to manage the number of plaintiffs in a suit, protect defendant(s) from inconsistent obligations, protect the interests of absentees, provide convenient and economical means for disposing of similar lawsuits, and facilitate the spreading of litigation costs among numerous litigants with similar claims. (1) Such suits are particularly popular in the USA, where it is an option available under Rule 23 of the Federal Rules of Civil Procedure.

A variant of class action suits, public interest litigation (PIL) also issues from American jurisprudence (2) and has been extant in South Asia for several decades. This is a form of litigation where an individual or organisation (such as an NGO) files a suit  on behalf of a group for the public interest. The group represented are often marginalised groups and the defendants have historically been public authorities but more recently have included large corporations.

The prevalence of PILs in South Asia has been ascribed to a number of factors including the existence of a large public sector, a history of authoritarian rule and the lackadaisical monitoring  of businesses. An example of a public interest issue, raised before Bangladeshi courts, is the prohibition of the use of child labour in cigarette factories. (3)

While this may yield some damages for the affected parties, the primary purpose of such litigation is to change (or enforce) the action of public authorities. This raises questions about whether a PIL is the best mechanism for bringing a private entity to court and what the limits of ‘public interest’ are.

It is for this reason that the use of class action suits would be complementary to PILs. They would create scope for an individual consumer to bring proceedings against a pharmaceutical company responsible for producing adulterated medicine, on behalf of all consumers in a similar group or a misdiagnosed patient to sue a hospital on behalf of all patient’s who have been misdiagnosed by that hospital.  Technically speaking, such actions are already possible in Bangladesh, whereby one person may sue on behalf of all parties who share the same interest (not necessarily a public interest) (4). However, it is a provision which is not actively applied and, indeed, not widely known about. On the one hand, this may be due to a lack of judicial familiarity with the concept. On the other,lawyers lack an incentive to bring such actions as they do in the US.

The Bar Council rules regarding the professional conduct of lawyers in Bangladesh renders it difficult for them to enter into ‘conditional fee agreements’, as potential success of a case is not one of the permitted considerations in ‘fixing fees’ (5) and receiving a pre-determined percentage of damages (if successful) involves a commingling of the property of the client and counsel.(6)

Moreover, as with most countries outside of the US, ‘punitive’ or exemplary damages are not generally granted in Bangladesh. Cynically speaking, if they were, lawyers would be more enthusiastic in collecting litigants, in the hopes that they would receive a hefty sum if their clients’ action is successful.



(1) United States Parole Comm’n v. Geraghty, 445 U.S. 388, 402-03, 100 S.Ct. 1202, 1211-12 (1980).

(2) See Brown v Board of Education, 347 U.S. 483 (1954).

(3) Ain-O-Salish Kendra (ASK) and another vs. Bangladesh, 63 DLR (2011) 95

(4) Order 1, Rule 8 of Bangladesh’s Code of Civil Procedure, 1908 reads: “(1) Where there are numerous persons having the same interest in one suit, one or more of such persons may, with the permission of the Court, sue or be sued, or may defend, in such suit, on behalf of or for the benefit of all persons so interested. But the Court shall in such case give, at the plaintiff’s expense, notice of the institution of the suit to all such persons either by personal service or, where from the number of persons or any other cause such service is not reasonably practicable, by public advertisement, as the Court in each case may direct. [emphasis added]

(5) Chapter II (10) of the Bangladesh Bar Council Canons of Professional Conduct and Etiquette

(6) Chapter II (6) of the Bangladesh Bar Council Canons of Professional Conduct and Etiquette


Legal Professional Privilege of Advocates: Lessons from Europe

The earlier draft article that I posted here has now been published, in slightly amended form, in the Financial Express-BD, Bangladesh’s leading financial daily:


Holding Out as a ‘Barrister’ whilst conducting Foreign Work – A Personal Perspective

Recently, there has been considerable discussion about whether BPTC/BVC graduates, who have been called to the Bar of England & Wales by an Inn of Court but have not completed pupillage, can hold themselves out as ‘Barristers’ outside of England & Wales. (In particular, in Bangladesh) Prima facie, they cannot do so whilst providing legal services, as they do not have practicing certificates in the UK and may mislead their clients as a result. In fact, if an ‘unregistered barrister’ (as Barristers without practicing certificates are officially known in the Bar Standards Board [BSB] Handbook) provides restricted legal services, such as appearing before an English court, whilst holding themselves out as a Barrister, they may be charged with a criminal offence under s.12 of the Legal Services Act 2007.

However, my reading of the most recent version of the BSB Handbook (as amended in April 2015), allows limited scope for unregistered Barristers who practice exclusively outside of England & Wales, to hold themselves out as Barristers. rC144.1 of the BSB Handbook requires an unregistered barrister, who provides legal services, to inform their client that they are not acting in the capacity of a practicing Barrister (i.e. they can’t hold out as being a Barrister). rC145 provides certain exceptions to rC144 and effectively exempts certain categories of unregistered Barristers from the requirements of rC144 as well as a few other regulations under the BSB Handbook. These categories are set out in rS13-rS15. rS13 clarifies that if an unregistered barrister is practicing as a foreign lawyer and doesn’t give advice on English law or supply legal services in connection with proceedings in England and Wales, then rC144 does not apply to them. In other words, they are not strictly required to inform their clients that they are not acting in the capacity of a practicing Barrister, if they are, for instance, advising on Bangladeshi law or with regard to a Bangladeshi suit. Instead, they are bound by the Bar Council/Legal Professional Authority of the country that they are practicing in. (rC13)

I should add that the term ‘legal services’, in itself, has a restricted meaning. At the Definitions section of the BSB Handbook, it is stated that legal services doesn’t include sitting as an arbitrator or working as a law lecturer. Therefore, if an unregistered Barrister is not providing legal services and is working as a law lecturer, for example, they can still hold themselves out to be a Barrister.

To take a more purposive approach to these rules and guidelines – the BSB issued them with the purpose of not misleading clients. So, the question is, are Bangladeshi clients being misled by unregistered Barristers who hold themselves out as Barristers whilst practicing in Bangladesh?

I would argue that they are not.

The Bangladesh Legal Practitioners and Bar Council Order, 1972 does not define ‘Barrister’, though it is used as a term throughout the Order re: eligibility for enrollment as advocates, exemption from the pupillage requirement and so on. In practice, the only document supporting a candidate’s claim that he/she is a Barrister, that is required by the Bar Council at the time of enrollment, is an attested copy of the candidate’s Call to the Bar certificate. (The Bangladesh Legal Practitioners and Bar Council Rule, 1972, Rule 60(1) and the Form pursuant to it) He/she is not required to provide a copy of his/her UK practicing certificate or any other evidence that he/she has completed pupillage there.

At the end of the day, even with a ‘Barrister’ title, a lawyer is required to enroll as an Advocate with the Bangladesh Bar Council. So, in terms of rights and obligations towards Bangladeshi clients, both Barristers and Advocates are on the same boat.

[The views expressed in this post are strictly my own and does not constitute an authoritative reading of the BSB Handbook’s provisions]

Universities Don’t Understand How International Students Learn

I think there is more to international students being disgruntled in the UK, than the author suggests. It is good that this discussion is being had in prominent UK newspapers though:

Can In-House Counsel Keep Secrets? – Lessons from Europe (DRAFT)

In Bangladesh, when a dispute arises between two parties under civil law, the court by its own motion, or either party through an application, may compel the discovery of documents necessary for the subject matter of the proceedings (section 30, Code of Civil Procedure 1908). The documents a corporate party may be required to disclose could be everything from publicly available Annual Reports to sensitive financial documents, granted that they are not subject to confidentiality agreements or statutory protections. While the US is known for having the broadest scope of ‘discovery’, courts all across the globe have been known to order  the disclosure of a broad range of documents for the purpose of resolving a dispute. Traditionally, communication between lawyers and their clients have been a part of the subset of documents that have fallen outside of the scope of this discovery provision because of legal professional privilege.

Legal Professional Privilege protects a client’s communication with their lawyers from disclosure to third parties, thereby averting the possibility of self-incrimination. The cloak of confidentiality allows clients to speak to counsel candidly and counsel to provide unfettered legal advice. Such protection has existed for centuries in the common law (e.g. Berd v Lovelace [1577] Cary 62) and is uniquely tied to the status of law as an independent profession. Lawyers have enjoyed the privilege of confidentiality because, despite owing a duty to their client, they have been required to give frank, independent advice and to facilitate the administration of justice. (Bangladesh Bar Council Canons of Professional Conduct and Etiquette, Canons 10 and 12 of Chapter 2 read together) At arm’s length, a lawyer can render advice by considering both the interests of the client and of justice. In recent years, however, the exponential increase in lawyers becoming salaried employees of major companies has stirred debate regarding their ability to render independent professional judgment. This is because such lawyers not only become part of a corporate hierarchy but have sometimes become involved in commercial decision-making and dispensing non-legal advice. Courts have thus been confronted with the question of whether the privilege of confidentiality should extend to such non-legal communication and have generally held that it shouldn’t do so. (e.g. in Australia, Seven Network Ltd v News Ltd (2005) 225 ALR 672)

This should be of growing concern in Bangladesh as multinationals now have sizable legal departments and they may be required to disclose certain communications with management in open court in the event of a civil proceeding. The question of legal professional privilege viz. in-house counsel has not been explicitly considered by the Supreme Court of Bangladesh but the example of European Union (EU) jurisprudence may be informative. This is especially as many of the multinationals operating in Bangladesh are subsidiaries of European parent companies (e.g. Unilever, British American Tobacco). Therefore, I will first outline the current position regarding legal professional privilege in Bangladesh and the EU respectively before making recommendations on how communication between in-house counsel and the officers, directors and employees of a company can be kept confidential.


In Bangladesh, communication between Advocates and their clients may enjoy the privilege of confidentiality under section 126 of the Evidence Act. However, such communication must have been made to him confidentially, in his capacity as an Advocate for the client, for privilege to attach to it. While the vast majority of in-house lawyers in Bangladesh have been enrolled as Advocates during their professional careers, the question arises as to whether their employment is in their capacity as an ‘Advocate’ or otherwise. The simple answer is that they are not. Pursuant to Canon 8 of Chapter 4, an Advocate should not, as a general rule, “…be a salaried official…in connection with any such profession or business.” Thus, while practicing as an Advocate, they cannot become a salaried employee of a company. Instead, a lawyer wishing to go in-house may suspend his practicing certificate under Rule 70, The Bangladesh Legal Practitioners and Bar Council Rules, 1972. A corporate lawyer is subject to codes of conduct/ethics that are set by companies for all of their employees, as well as the terms of their individual contracts which will generally include confidentiality clauses. (See British American Tobacco’s “Standards of Business Conduct” and S.S. Shroff, “In-house Counsel and the Attorney-Client Privilege” Lex Mundi (2007)) However, whether this contractual proviso means that client-counsel communication will be shielded from court-ordered disclosure is debatable, as the European example demonstrates.

The EU

The EU does not have a harmonized regime regarding confidentiality but in the AM & S v. European Commission case, the European Court of Justice (ECJ) held that confidentiality attaches to written communication between a lawyer and client, if the communication was made “for the purposes and in the interests of the client rights of defence” and they emanate from ‘independent lawyers’ (paragraph 21, p. 1611). This was re-affirmed more recently in the Akzo Nobel v. European Commission case. Thus, in-house lawyers’ communication is not protected by confidentiality because of their economic dependence on their client and their inability to avoid conflict between their own professional obligations and the commercial aims of their employers. Moreover, they may have duties that not strictly legal in nature. However, this restrictive approach to confidentiality only applies in cross-border, European Commission competition investigations. (DLA Piper, “European Union”, Legal Professional Privilege: Global Guide, 2015) Other disputes, including national competition proceedings, provide in-house counsel greater protection. In the UK, for example, both independent and in-house counsel communication attracts confidentiality, so long as the communication relates to the performance by the lawyer of his professional duty as legal adviser to his client (see Three Rivers District Council & Ors. v. Bank of England [2004] UKHL 48). Recent decisions in Belgium and the Netherlands indicate a similar trend. (Dirk Van Gerven and Freerk Vermeulen, “Legal advice of in-house counsel protected by duty of confidentiality” Lexology, 18 June 2013)

Ensuring Privilege

The lesson from this is that when courts consider the issue of privilege, they give greatest weight to the nature of the communication between in-house counsel and client rather than the lawyer’s formal, professional status. If the dominant purpose of the communication is to furnish legal advice, it will be protected, otherwise it will not. Thus, companies that seek to have their communication with their legal department protected should endeavor to strictly distinguish the department’s legal work from their involvement in other corporate activities. A range of measures may be taken to this effect, from annotating documents with ‘this communication is privileged based on attorney-client relationship’ to restricting the dissemination of such documents to granting the department greater autonomy within the company structure, so as to enable them to exercise independent professional judgment. It also goes without saying that the confidentiality of such communication should be preserved.

On the same note, it would be appreciated if the Bangladesh Bar Council issued a guidance note, clarifying whether, and to what extent, the Canons of Professional Conduct should extend to in-house lawyers.


New ‘Health Surcharge’ for Foreign Students in the UK

This article in the Times of India provides details of the new surcharge of 150 GBP imposed on foreign students for health services under the NHS.

An interesting statistic highlighted by the Foreign & Commonwealth Office: “International students cost the NHS around £430 million per year and over £700 per head”. I only visited the NHS once, for a routine examination, in my four years there and I can’t imagine many healthy-bodied 18-30 year olds darkening their door step. Where did the 700 GBP figure come from? Moreover, why they would impose a ‘nominal’, symbolic surcharge of 150 GBP if it doesn’t cover the purported cost of providing healthcare?



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