Kluwer Law International publishes “The Legal, Real and Converged Interest in Declaratory Relief” by Dr Beata Gessel-Kalinowska vel Kalisz
Invoking the comment by Lord Atkin to the effect that declarations are one of the most valuable contributions that the courts have made to commercial life, the most recent book by Dr Beata Gessel adopts a comparatist take on the concept of legal interest which, in many jurisdictions, constitutes a prerequisite for issue of a declaratory judgment, concluding that the Polish legal order would benefit from a new approach to this issue.
By way of introduction, Dr Gessel notes that legal systems the world over tend to treat the question of declaratory relief in a similar way – the relevant legislation is quite pithy, provided that any has been adopted at all. The rules of arbitration tribunals likewise tend to stop short of laying down detailed principles concerning possible types of claims and possible ways of resolving them. As a result, declaratory relief as well as any controversies arising in this respect are left to the legal doctrine and to daily practice of individual legal systems (before the general courts as well as in arbitration); the book abounds with interesting examples from all these areas.
Legal systems rooted in German law (the Polish one included) employ the concept of “legal interest” as a prerequisite for issue of a declaratory judgment. The practical effect is that access to this type of legal recourse is impeded. As formulated by the German pandectists in the 19th century, the legal interest prerequisite was intended to protect the courts from a deluge of unfounded or frivolous lawsuits. Basing on her research, Beata Gessel-Kalinowska vel Kalisz argues that the way in which legal interest is framed varies from country to country and tends to be excessively restrictive, with the result that access to legal protection is denied. No similar restriction applies in the common law systems, which generally adopt a more pragmatic approach. English law, for example, adopts the more flexible concept of “real interest”, with no limitation as to the object of declaratory relief (in England, declaratory relief may concern not only legal relationships or rights). Proceeding to international arbitration, territory with which she is very familiar, Dr Gessel notes that, given the greater freedom to rely on intuitive solutions afforded to arbitrators, they are in a position to soften what might otherwise have been an excessively formalistic approach to legal interest. Arbitration makes for a fecund mix of Germanic and common law influences, enabling an autonomic interpretation of interest in obtainment of declaratory relief. These various insights are presented by Dr Gessel against a backdrop of analysis of “legal interest” from the legal theory perspective, including the procedural justice concept of J. Rawls.
The book presents a juxtaposition of legal interest as known in Polish law with English law and with arbitration practice, backed up by empirical study and by legal theory. Dr Gessel hopes that, taken together, it might provide impetus for reassessment of the legal interest. She posits that the concept of legal interest as a prerequisite for declaratory relief merits more attention, and that it ought to be re-evaluated so as to accommodate contemporary legal realities. As matters now stand, this issue is all too often confined to purely academic debate, if it is raised at all
The book is divided into the following chapters:
- Declarations in General – an introduction to the very concept of declaratory relief and a prologue setting out the premises, organisational scheme, and methodology used in the book. The author also provides an overview of the issues raised while withholding judgment on the outcomes.
- The Concept of ‘Legal’ Interest in Germanic Systems of Law – A presentation of “legal interest” as construed in legal systems tracing their lineage to German law. This chapter compares and contrasts the pertinent solutions applied in German, Austrian, Polish and Swiss law. As qualified by certain points of divergence, especially in the case of Switzerland, the chapter adopts a syncretic approach, highlighting the similarities shared by these jurisdictions.
- The Concept of ‘Real’ Interest in English Law – Where Germanic / Continental jurisdictions apply the concept of “legal interest” for purposes of declaratory relief, English law (and, in its wake, many common law jurisdictions) make use of “real interest” – in many ways its opposite. As the author explains, the general idea informing the “real interest” concept refers to imposing certain bounds on judicial discretion in granting declaratory relief.
- The Concept of ‘Converged’ Interest in International Arbitration Awards – An introduction to the “mixed interest” concept which may be discerned in international arbitration practice. Here, Dr Gessel analyses how arbitrators tackle the question of “legal interest” in its “national” or “supranational” variants in a situation where the concept is regulated by the law of the place of arbitration. The author’s remarks are illustrated by numerous arbitration judgments, first and foremost from the M&A sphere.
- The Problem of Redefinition of Legal Interest Concept in Light of the Access to Justice Principles – In her last chapter, Dr Gessel explains why, in her view, the concept of legal interest is ripe for re-evaluation from the perspective of procedural justice (which she posits as a new cognitive perspective). The analysis set out in this chapter proceeds from a perspective of the access to justice principle and employs a dogmatic analysis of substantive law as well as legal procedure, augmented with theory of justice, comparatist insights, and statistical analysis.
The main part of the book, as adumbrated above, is enriched by four annexes in which Dr Gessel’s co-authors present brief overviews of declaratory relief in the law of, respectively, Austria, Germany, Poland, and Switzerland.
The book (in English) is available from Wydawnictwo Wolters Kluwer.