Email: I.R.Davies@Swansea.ac.uk
Tel: (01792) 295832

Current Position
Sir Julian Hodge Chair in Asset Finance Law and Head of School of Law, University of Wales Swansea
http://www.julianhodgebank.com/group/jhciaf.asp

Relevant Activities

• Chair, Standing Committee for Legal Wales
• Member Commission on Personal Indebtedness
• Member of Panel arbitrating under the Business Code of Practice, Finance and Leasing Association.
• Chair, Standards Committee, City and County of Swansea
• Barrister, member of Iscoed Chambers Swansea. Areas of specialism: Commercial, Chancery, Civil.

Research Interests
My work is currently in the field of Commercial Law and International Commercial Law. In particular, my work focuses upon the harmonisation of Commercial Law and especially personal property security law. The growing recognition of personal property security regimes within the common law jurisdictions and the reform of English and Welsh personal property security law has been the object of my work in recent years, especially the conceptual framework for such legislation. More recently, I have been concerned with the phenomenon of over-indebtedness and also the significance of security as part of the lending decision. In particular, I am interested in the commodification of IP rights as economic assets and their use in business lending.

Within the context of Wales as an emerging jurisdiction, I am interested in the development of Legal Wales and especially the growth of a corpus of Welsh legal language and more generally the issue of bilingualism in the development of law and its administration. I have recently completed a major research project on the legal problems associated with financing technology-based SMEs, with particular reference to Wales. This has involved mapping IP activity in Wales and a unique data set has been constructed as a baseline for continued future monitoring of IP activity in Wales. The settled Report is bilingual and this has also involved settling Welsh legal terminology for dissemination and standardisation. A further report on the supply of private practice legal skills has been completed on behalf of the Law Society. The major findings of this work are set out below.

Professor Iwan Davies & Professor Lynn Mainwaring, Law Society Research Report: The supply of private practice legal skills in Wales (2005).

Overview

1. In the wake of devolution, Wales is increasingly emerging as a distinct legal jurisdiction.

2. The continued development of the process of devolution rests upon the ability of the legal profession in Wales to service the legal sphere of the devolutionary settlement. While in part this can be provided outside of Wales, to overly rely upon this source would undermine the methodology and logic of devolution.

3. A vibrant, Welsh legal service is a vital element in promoting local competitive advantage and also in protecting the integrity of the emerging Welsh legal jurisdiction.

 4. The Welsh Assembly Government has, in its economic strategy, outlined an ambitious strategy to raise GDP per capita closer to the UK and EU average. An essential part of that strategy is to engineer a shift in economic activity into those sectors that feed an existing knowledge and create new knowledge. Many aspects of legal provision satisfy these criteria and convergence of standards and legal provision would seem to be an essential part of the broader, economic objective. Our observations show that in relation to England the conversion process in Wales has yet to begin. In almost every specialist area of business law, Wales does poorly compared, for example, with the South West of England.

5. In volume terms, Wales has 60% of the solicitors available in England when adjusted for population. This is substantially lower than the GDP ratio of about 80%.

6. Despite the fact that one-third of all solicitors in Wales are located in Cardiff, nevertheless, London dominates the supply of specialist legal provision in Wales. Whilst the largest firms of solicitors in Cardiff, and to a lesser extent in Swansea, are able to offer clients a fairly wide-range of legal services, they cannot provide the highly specialist expertise to be found in London. Such expertise needs to be nurtured and through adopting an appropriate procurement strategy, the Welsh Assembly Government could have a significant impact in fostering this development in Wales.

7. Average firm size in Wales is lower than any region in England and this compromises the development of economies of scope and scale among firms in Wales.

8. As is set out in detail in Appendix 2, it appears that Welsh legal firms are generally experienced in personal, family and social areas of law but are relatively inexperienced with regard to specialised areas of law, notably business law. Welsh firms are particularly vulnerable to the commodification of legal services which is sometimes referred to as “Tesco Law”. Few Welsh firms are engaged in complex, high value, specialist work which will always require the judgement, experience and knowledge of a skilled legal practitioner or team of practitioners working on the basis of traditional consultation.

9. The stark conclusion to emerge from the analysis of legal service supply is the weak or non-existent provision of key areas of business law.  Compared to our chosen comparator region, SW England, Wales as a whole is notably weak in a wide set of legal skills which are applicable to most areas of commercial activity.  These are Corporate Finance, Finance and Investment, Banking, Insurance, Bankruptcy, Insurance, Taxation, Mergers, Computers and IT, Intellectual Property, Planning, Environment, Professional Negligence, Commercial Mediation, and International Law.  Many of these are areas which are critical to growth in the modern, knowledge-based economy.

10. The supply deficiencies in business law are not spread evenly in geographic terms.  Two rural areas, the old counties of Gwynedd and Powys, are particularly poorly served with many areas of specialism simply not catered for at all. Only the greater Cardiff area can claim to have a degree of parity with SW England, though even there we find weaknesses in Finance and Investment, Taxation and Trusts. Given their commercial significance in the Welsh economy, Clwyd, Gwent and West Glamorgan all have substantial weaknesses or even complete gaps in the supply of key legal skills.

11. The declared expertise of solicitors’ practices in Wales shows that in terms of the conventional areas of practice, they have either met or adjusted to the market need. The means of delivering the advice is done traditionally, doubtless at some stage being reduced in writing, normally after a face to face consultation on an hourly basis. This is a restrictive approach in terms of access to the profession and is problematical in sparsely populated areas such as those areas of rural Wales. This limitation has already been recognised by the Legal Services Commission in Wales through the launching of Community Legal Services Direct.

12. Legal firms in Wales have mainly relied upon orthodox ways of bringing their expertise to the attention of clients, notably through local advertising and their local reputation. Where Welsh firms do submit themselves to a process of selection, typically through tendering, only slightly more than half of the surveyed respondent firms indicated that they had tendered for work, for example, through seeking a franchise with the Legal Services Commission. Under the restructured franchising rules, many rural firms are not sufficiently resourced to obtain a franchise for public funded work. This is partly the rationale for establishing Community Legal Services Direct.

13. Size matters in terms of quality and the low percentage of membership by Welsh firms of the professional standards body Lexel is, in part, due to size. In the South West of England, successful firms tend to be medium and large-sized firms – 5 firms in the South West of England have in excess of 100 partners plus fee earners. The largest Welsh firm has 86 partners plus fee earners.

14. Despite the development of Legal Wales, there is little cohesion in terms of a Welsh legal identity among legal practitioners in Wales. There are few formal linkages between Welsh firms. Furthermore, half of the solicitor firms in our survey regularly use chambers outside of Wales and fewer than two-thirds regularly use Welsh chambers. Significantly, chancery, commercial and specialised work is proportionately more important in “exported” referrals.

15. From our survey, firms in Wales are not seeking training courses in business law areas. It seems that firms are anticipating the need for expansion in taxation and civil liberties, while contracting areas are business affairs, construction, banking, energy and finance and investment. The last four are areas which have very little representation in Wales, not just absolutely but also proportionately, as compared to the South West of England.

16. The current distribution of legal services in the UK indicates that Wales is near the bottom of the UK league table in terms of both the number of people employed and the percentage of the local labour force in legal services. Wales needs more legal expertise and it needs it most in specialist areas of law if the legal profession within Wales is to service the Winning Wales economic strategy of the Welsh Assembly Government.

17. In stimulating the development of specialist areas of legal expertise, knowledge networks such as those seen in Technium, are highly beneficial. Here, there is an important role for Welsh law schools to play in interfacing with law firms as businesses.

18. The Clementi proposals and the impact of advances in technology will have a radical impact upon the structure of the profession in Wales. Welsh firms will only be able to compete with providers of legal services elsewhere if they develop knowledge management systems. The average size of Welsh firms is an obvious constraint to this process.

19. The traditional client service relationship has changed and many Welsh firms have yet to adapt.

20. There are significant opportunities for suppliers of legal services in Wales. The development and furthering of technology can provide a solution for Welsh firms in overcoming the problem of smallness through the development of referral models of legal practice and virtual models of legal practice. These developments require a radical re-consideration of the basis of the conventional lawyer-client relationship and its replacement by a new set of relationships, based upon a legal knowledge network in Wales.

21. The development of a virtual legal network firm in Wales would allow for specialised areas of business and related legal expertise to grow and be acknowledged as such, in particular members or teams within the network firm. Such an approach would facilitate the ability of Welsh firms, in the near future, to access the commercial opportunities arising out of the potential outsourcing of legal work by, for example, public authorities in Wales. This will require formalised client relationship systems which small firms would otherwise have no prospect of providing. Such systems must be based on technology platforms and require considerable investment. Where local authorities in Wales are seeking to outsource their legal services, the procurement strategy and tendering processes employed by such bodies could provide significant opportunities for the development of such virtual legal networks.

22. By enabling direct third party equity style investment in legal services, the Clementi reform proposals offer real opportunities for shifting the paradigm of legal services provision in Wales, making it fit for 21st Century legal practice.

23. Legal knowledge in the same way as technological knowledge produces public benefits. This Report offers two practical suggestions for developing the public effectiveness of legal services provision. One is to build on the existing Technium programme, adding legal services to its subscribers’ existing virtual private network, and then broadening its subscription base. The other is to develop a dedicated legal virtual network along similar lines (a ‘Lexium’) so that practitioners can offer a fuller spectrum of services. This second approach might be more appropriate in rural areas. The investment needed to support such projects would constitute an imaginative and socially productive use of future structural funds.

Recent Papers / Work in Progress:

The Use of the Welsh Language and the Legal Process in Wales
This paper considers the use of Welsh within the legal process in Wales. It examines the historical background leading to the enactment of the Welsh Language Act 1993 and considers the impact of the establishment of the National Assembly for Wales on the use of the Welsh language within public life in Wales. The practical problems facing the use of Welsh is discussed and, in particular, the challenge of establishing legal terminology and expressions, both English-Welsh and Welsh-English, in relation to National Assembly legislation, as well as more generally in the law and procedure which applies to the civil and criminal legal context in Wales. In summary, the process of creating and validating terminology involves a multi-disciplinary, dynamic approach to include legal expertise, linguistic expertise and language technology expertise. Whilst the lawyer would scrutinise the legal concepts that underpin any terminology or phraseology, the linguist’s role would be to safeguard the linguistic integrity and quality, whilst the technology expertise could be utilised in respect of data handling techniques and computerised tools. The marshalling of these skills can best be illustrated by a specific example. In this paper, the example which is taken is the legal term “assured tenancy”. This term is chosen because it has no historical legal baggage and is a comparatively new statutory legal term in English. In settling the corpus for Welsh legal language, it is important to ensure that the legal language is both clear linguistically and appropriate in terms of legal sense. This will involve a scrutiny of phrases in current use and then the identification of a preferred standardised term. For example:

Assured Tenancy - Tenantiaeth Aswyriedig
DEFINITION: Created by statute (Housing Act 1988, ss. 56-58), it is a hybrid of its predecessors, the Rent Act tenancy and the secure tenancy. It gives residential tenants security of tenure roughly equivalent to that afforded under the Rent Act, but at market rather than sub-market rents. When an assured tenancy ends (other than by order of the court), or surrender or other action on the part of the tenant, the expiring tenancy automatically turns into a statutory periodic tenancy. The assured tenancy cannot be brought to an end by the landlord except by obtaining an order of the court. To remove the tenant, the landlord has to serve an appropriate notice and prove one or more of the grounds in Schedule 2 of the Act to the satisfaction of the court. The expression “assured” is designed as a convenient label to represent this degree of security conferred upon the tenant. (Halsbury’s Laws of England Vol 27(1) Landlord and Tenant, para 884).

CURRENT USAGE:  ‘tenantiaeth siwr’ (Lewys, Geiriadur y Gyfraith (1992), p347): ‘tenantiaeth aswyriedig’ (Cymdeithas Tai Clwyd; Cymdeithas Tai Eryri; Cymdeithas Tai Cantref), ‘tenantiaeth warantedig’ (HM Land Registry, not included in glossary of legal terms, used in correspondence) “tenantiaeth sicr” (Lewys, Geiriadur y Gyrfraith (2003).

CRITIQUE:  The expression ‘tenantiaeth’ is universally accepted as the expression for ‘tenancy’.

‘Tenantiaeth siwr’ is linguistically acceptable, but conceptually ambiguous. ‘Siwr is found as an expression for ‘secure’ (see Geiriadur yr Academia p237). From a legal perspective, a clear terminological distinction must be made between a ‘secure tenancy’ and an ‘assured tenancy’. 

‘Tenantiaeth Warantedig’ is probably linguistically ambiguous. It may mean ‘gwarantedig’ (which means ‘guaranteed’) or ‘warantedig’ (warranted).

“Tenantiaeth sicr” is linguistically ambiguous and is conceptually unacceptable. “Sicr” is found as an expression for “certain” (see Geiriadur yr Academia p219) although at the same time it suggested “assured”. From a legal perspective, whilst a tenancy involves an interest in land, the key to understanding land law is relativity of title. The concept of a “certain” interest by way of a tenancy fails to convey this, for example, a tenant may lose his interest if he is in breach of his obligations under the tenancy which arise , in this context, under the Housing Act 1988.

‘Tenantiaeth aswyriedig’ is both conceptually and linguistically acceptable. ‘Aswyriedig’ is found as a term for ‘assured’, which includes the meaning of being ‘insured’ (Geiriadur yr Academi, p79). As ‘Insured Tenancy’ is not a legal term, there is no risk of conflict or imprecision. ‘Aswyriedig’ is linguistically similar to ‘assured’ and therefore it has this further practical advantage.

PRESCRIPTION FOR STANDARDISATION: An expression that satisfies both linguistic and conceptual requirements would be ‘tenantiaeth aswyriedig’.

BROAD TERMS: Landlord and Tenant; Tenancy; Housing Act 1988.

RELATED TERMS: Statutory Periodic Tenancy; Assured Shorthold Tenancy; Assured Periodic Tenancy.

In settling an approved definition, a multi-disciplinary dynamic must be facilitated. As can be seen from the above, this is not easy, even in the context of a comparatively new English legal concept and would be very challenging in the context of settling a definition which has established statutory and case law antecedents.

Publications

Recent Publications  2001-

(i) Reports:

Law Society Research Report: The Supply of Private Practice Legal Skills in Wales, (2005).

Financing of Welsh SMEs and the Commodification of IP Rights, (2004) 90 pp.

 (ii) Books:

Butterworths Common Law Series Sale and Supply of Goods (forthcoming).

Issues in International Commercial Law (2005) (i-xiii) 261 pp.

Security Interests in Mobile Equipment : ed. Davies I R, 548 pp + i – xiv (2002) (Dartmouth).

(iii) Articles:

"Secured financing of Intellectual Property Assets", (forthcoming 2006) Issue 3, Oxford Journal of Legal Studies.

“The Reform of English Personal Property Security Law: Functionalism and Article Nine of the Uniform Commercial Code” (2004) 24 Legal Studies 295-321.

“The Emergence of a Substantive International Legal Regime in High Value Equipment Moving Between Frontiers” [2003] JICL 351-375.

“The New Lex Mercatoria – International Interests in Mobile Equipment” (2003) 52 ICLQ 151-176.

“Retention of Title Clauses in Europe and Non-Possessory Security Interests: A Secured Credit Regime Within the European Union?”  Chapter 9, pp 335-376 in Davies (ed) Security Interests in Mobile Equipment (2002).

Clement, Davies, Beale “Intellectual Property Activity in Wales: A Report on the Support for Innovative SMEs Project” (2001) 1 Wales Law Journal 256-263.

“Datblygu Cyfundrefnau Rhyngwladol yng Ngweithrediadau Masnachol o Offer Symudadwy Uchel eu Gwerth ar Draws Ffiniau” (2002) 1 Cylchgrawn Cyfraith Cymru 273-279.

“Registration Documents and Certification of Title of Motor Vehicles” [2001] JBL 489-509.

“Seminar Report: The Welsh Language and the Legal Process in Wales”  (2001) 1 Wales Law Journal 19-39.

“The Challenge of Legal Wales” Law Society Lecture, National Eisteddfod of Wales 2001, 1-40.

(iv) Forthcoming:

“The Use of the Welsh Language and The Legal Process in Wales”.

“Patent Activity and the Development of a Knowledge Driven Economy”.

Current Teaching

• Commercial Law
• Business Law
• Credit and Security