Our guest on this 65th episode of the TrustTalk podcast is Esther van Zimmeren, Professor of Intellectual Property Law & Governance at the Faculty of Law of the University of Antwerp and coordinator of the Centre of Excellence GOVTRUST.
The connection between trust and the legal profession is not a simple one. In legal literature, the concept of trust typically pertains to confidence in (legal) institutions, such as courts, judges, or “the legal system.” Legitimacy is often used as a synonym for trust, despite its unclear relationship with trust in broader literature from other disciplines. The terms trust, rule of law, and legitimacy are used interchangeably without specifying their drivers or consequences, leading to a lack of clarity in their practical implications.
Esther discusses the challenges of creating trust in contractual arrangements, particularly in complex IP licensing and patent pool agreements. They explore the balance between creating clarity and legal certainty while leaving room for innovation and open communication to build trust. She suggests that clear milestones can be imposed at the beginning of the contract, but renegotiation and mediation can be used when more space is needed. The use of alternative dispute resolution, such as mediation, can help to maintain good long-term relationships and build trust. She highlights the importance of considering the context in determining the effectiveness of rules and contracts. They suggest that differences in outcomes may be related to variations in empirical research and theoretical work, as well as factors such as the type of collaboration, contract, actors involved, and geographical scope.
Esther van Zimmeren believes that legitimacy, fairness, and procedural justice are important considerations for trust in an organization or institution, especially in a regulatory governance context. She talks about the Unified Patent Court in Europe, which has promising rules for fairness and impartiality but faces challenges in terms of the independence of its technically qualified judges who work part-time for patent firms. She emphasizes the need to look at specific examples rather than general concepts when discussing trust in the legal system.
How the legal profession uses the word trust
I think that with legal sciences, increasingly we’re also using methods of other sciences and we’re learning from conceptualizations and different methods that are being used also in the social sciences. So you see that lawyers are also interested in these concepts. But if you look back at older literature, that people use trust in a very generic manner, not really conceptualizing or using clear definitions. So you often find the word trust as an important concept, but it’s has no specific meaning or in some other cases there are concepts like mutual trust which are developed by the Court of Justice, but in a very isolated manner. So there seems to be some kind of disconnect or some isolation of how lawyers, practicing lawyers, but also academics are using the word trust.
Trust in courts
I’ve written some articles with colleagues Patricia Popelier and others about trust in courts, and what does that then mean? Again, also there you see a kind of mix up in a lot of the literature between trust and legitimacy that I already referred to. And also often it’s not so clear who is the trustor who is the trustee, what is the relationship there, are we looking at trust of citizens in courts or are we looking at trust of companies in such systems? Then also often the term judicial system is used in a broad way, whereas I actually think and this is also coming from the broader trust literature, is that this relationship between interpersonal trust and inter-organizational trust is very helpful to understand better whether we trust a certain court, because often we don’t really know as a citizen what the court is doing, we’re not looking into the caseload, we’re not making a very detailed analysis.
Publications Esther van ZImmeren
For an overview of the publications by Esther van Zimmeren, use this link
Transcript of the interview with Esther van Zimmeren
Subtitles on the YouTube video of the interview
For those that prefer to listen to the interview and at the same time read the subtitles we added the interview to the TrustTalk YouTube channel,